Oregon Injury Lawyer Blog

A disturbing article published this week in the New York Times outlines a series of failures by both corporate America and the federal government. Its focus is General Motors’ recent recall notices involving well over a million vehicles manufactured since the 2003 model year (click here for GM’s latest news release with full details of models and years effected). The vehicles have a defect in the air bag system that in some instances means the air bags will not deploy during a crash because the ignition switch has been cut off.

According to the Times, GM now acknowledges that at least 13 deaths can be tied to the defect. What is disturbing is the paper’s report that the automaker’s engineers were aware of the issue in 2004 – more than a year before the first of those 13 documented deaths. Equally bad is the record of federal regulators from the National Highway Traffic Safety Administration. According to the paper, “after two of the (Chevy) Cobalt crashes, the regulators took a close look at the cause, each time raising the possibility of a defect. They also met with GM about the issue. But despite the red flags, they never opened a broader investigation into whether the car was defective.”

As the paper goes on to report, a number of lawsuits related to the documented deaths have already made their way through the court system. Class action law was created precisely to enable ordinary Americans to defend their rights in cases of this sort of willful and negligent misconduct, especially when it results in wrongful deaths. The recall notices are still new and are still sinking in for many people (the initial recall was issued on February 19 and was later extended to hundreds of thousands of other vehicles) so it is also important to note that the full impact of the situation is not yet clear. It is clear that the court system will probably hear much more about these vehicles in the months and years to come.

As an Oregon product liability and wrongful death attorney I can only say that I find these revelations disturbing. We all understand that any private company has an obligation to its shareholders to make a profit, but that fiduciary responsibility does not eliminate the broader responsibility that companies and individuals have to our society at large. GM needs to be held accountable for these lapses now, and it deserves close scrutiny in the months and years to come to ensure that nothing like this ever happens again. We also know that regulators like the NHSTA play an essential role in our system of public safety, but when watchdog agencies fail to do their jobs the system fails everyone. Congress and our courts both need to take on the burden of ensuring that regulators do their jobs diligently and without favor to the industry they are charged with overseeing.

The New York Times: In General Motors Recalls, Inaction and a Trail of Fatal Crashes

When attention focuses on the question of sports and traumatic brain injuries we usually think of football, hockey or boxing. A new study from Boston University, however, highlights the potential TBI dangers of a sport we do not often think of as violent: soccer.

As outlined by the New York Times earlier this week, the study focuses on “encephalopathy, the degenerative brain disease linked to repeated blows to the head” which, it reports, “has been found posthumously in a 29-year-old former soccer player, the strongest indication yet that the condition is not limited to athletes who played sports known for violent collisions.” Equally intriguingly, the newspaper notes that the soccer player died of ALS, commonly known as Lou Gehrig’s Disease, and offers evidence that the repeated head trauma involved in soccer may have played a role in his development of the disease at the relatively young age of 27.

The man mentioned in the article was a top-level college and semi-pro soccer player. The Times quotes his parents remembering his love of the game, and the pride he took at being good at heading the ball. It quotes a doctor who performed a brain examination after the player’s death saying that he had “extensive frontal lobe damage” of a type more commonly associated with football than soccer. The article cautions that there is no way to establish an irrefutable link between the game and these brain injuries, but the BU study concludes that this, and other data, are cause for both concern and for further study.

A doctor from Brigham Young University quoted in the article notes that one’s brain does not reach its full development until a person is approximately 25 years old. “Some youth soccer organizations have warned against practicing heading until players reach a certain age, usually between 10 and 14. Some scientists believe those ages are somewhat arbitrary, but they understand that parents want to know whether their children should be allowed to head soccer balls” the paper reports.

As an Oregon traumatic brain and spinal cord injury lawyer I recommend this article (link below) to any parent with a child involved in youth sports. While it offers few definitive answers, it raises a number of serious issues that all of us as parents need to keep in mind when it comes to sports and our kids.

The New York Times: Brain Trauma Extends to Soccer Field

In Salem today the Senate Judiciary Committee sent to the full Senate an important bill that could change the way Oregon drunk driving cases are decided. According to The Oregonian the legislation “would no longer require everyone on diversion for drunken or drugged driving to install… interlock devices, which force drivers to blow into a breathalyzer that shows they haven’t been drinking before their car will start.” According to the newspaper “about 10,000 people a year are placed on diversion for the first-time offenses of driving while intoxicated, and about 70 percent never commit another offense.”

At issue are that recidivism rate and a debate about how closely practice here in Oregon should resemble that in other states.

Proponents of the bill note that for many people DUII is a one-time offense. “My experience says that the vast majority of the individuals are in the system once and only once,” the paper quotes Senate Judiciary Committee Chairman Floyd Prozanski saying. The counter-argument, spearheaded by Mothers Against Drunk Driving (MADD) is that “many offenders repeatedly drive drunk before they’re caught for the first time” the newspaper reports. It cites MADD’s legislative director, Frank Harris, accusing the legislature of “playing some risky business with public safety.”

Then there is the question of how Oregon measures up compared to other states. According to the newspaper, though interlock devices are a common requirement for people across the country seeking to reclaim driving privileges following a drunk driving conviction. Yet only one other state, Connecticut, requires people in diversion programs to use them. Depending on one’s point of view this either indicates that our state is out of step with national ‘best practices,’ or that Oregon stands nearly alone in taking first-time drunk driving as seriously as it should.

As a Portland drunk driving victims’ lawyer I will be watching the coming debate in the legislature closely. The Oregonian’s story (see link below) does an excellent job of laying out the arguments on both sides of this complex issue, along with the ways in which the Oregon Senate’s current proposal differs from the bill originally considered by the House. This is a serious issue, and it is good to see our legislators settling in for what I hope will be a serious and thoughtful debate.

The Oregonian: Oregon’s tough interlock ignition law for drunken drivers should be eased, Senate panel says

An effort in Salem to close a striking loophole in Oregon’s laws regulating class action lawsuits is attracting attention across the country as legislators seek both to bring Oregon into accord with practice in most of the rest of the United States and to help poor Oregonians overcome the challenges they face when protecting their rights through our legal system.

For many people the words “class action” conjure images of high profile national cases involving prescription drugs or unsafe cars, or of working conditions most of us can barely imagine (e.g. coal miners in West Virginia). A recent case here in Oregon, however, illustrates just how high the stakes can be in seemingly simple cases. As Portland TV station KOIN notes in a web report, a Multnomah County jury ruled earlier this month “that BP was wrong to charge 35 cents extra for people using their debit cards at Arco gas stations in Oregon.” That may not seem like a lot of money but, according to the station, the overcharging effected “nearly 3 million people” just in the two and a half years between January 2011 and August 2013 (the period covered by the suit). The verdict amounts to an estimated $200 per customer - $600 million in all.

Unless they have kept very good banking records, however, many Oregonians won’t see any of that money. Arco’s parent company, BP, says it has not retained the relevant records. Drivers who can document the number of times they used debit cards at Oregon Arco stations may be able to get some money back – but the vast majority of the “class” covered by the settlement is unlikely ever to see anything. This is where politics comes into play: the question of what happens to any unclaimed damages. Oregon is one of only two states where a company in BP’s position can put the unclaimed money back into its corporate pocket (the other state is New Hampshire).

As a recent Associated Press article outlined there is a move in Salem to close this loophole. HB 4143, which passed the House by a comfortable 36-21 margin earlier this week, would require that unclaimed class action awards “go to an endowment fund controlled by the state treasury. Interest income would be used to fund legal aid lawyers, who represent the poor in civil actions without charge,” the news agency reports. AP also notes that “about 850,000 Oregonians have income low enough to qualify” for legal aid.

From my perspective as a Portland personal injury attorney there really are not two sides to the debate about this proposed law. The question is simply whether we Oregonians will join 48 other states in holding corporations fully accountable for their actions – and ensuring that fines levied by judges and juries are actually paid – or will we listen to facile arguments from one of the biggest oil companies on earth… arguments that amount to allowing BP to pay little or nothing in the way of penalties because it, the company in the wrong, destroyed the transaction records that would have demonstrated its culpability? For the sake of fairness, and in the long-term interest of every Oregonian, rich and poor alike, the answer has to be strong support for HB 4143.

SF Gate: Class Actions Bill Divides Oregon Legal community

KOIN: Consumers Win Class Action vs BP-Arco

New York City’s new mayor, Bill de Blasio, unveiled a plan yesterday designed to eliminate pedestrian traffic deaths in America’s largest city. His proposals are worth looking at here in Oregon because they may contain lessons we can learn from here in Portland.

According to the New York Times, the focus of the initiative is stepped-up enforcement of existing laws combined with a proposal to lower the city’s speed limit from 30 to 25 miles per hour. “Our lives are literally in each other’s hands. Our children’s lives are in each other’s hands,” the mayor told a news conference Tuesday.

The strategy is called “Vision Zero” and is “adopted from a Swedish traffic safety approach that views all traffic deaths as inherently preventable,” according to the Times. De Blasio advocated these measures during his campaign last year, but they took on special urgency when New York “experienced a spate of traffic deaths, including three pedestrian deaths last month in fewer than 10 days” in the first weeks after the new mayor took office.

Here in Portland we are, in some respects, well ahead of New York in terms of traffic and pedestrian safety. Back in August 2012 the speed limit on 70 miles of Portland’s streets was lowered from 25 mph to 20 mph. As The Oregonian and other media outlets noted at the time, the move was designed to protect pedestrians and cyclists from Portland bicycle and car accidents. The program has not been perfect – an opinion column in The Oregonian on New Year’s Day stated that 10 Portland pedestrians died in traffic-related accidents during 2013. That article prompted a response a few days later in the same newspaper from Portland City Commissioner Steve Novick who acknowledged the problem and agreed that more funding for sidewalks and better traffic signals is needed.

It is especially interesting to note that the 2012 move to lower speed limits focused on out city’s Northeast, while the recent articles focusing on continuing problems both highlighted the Southeast. Anecdotally, at least, this would suggest that lowering the speed limit really does help.

As an Oregon bicycle and pedestrian traffic accident attorney I applaud Mayor de Blasio’s initiative and will be eager to see whether it achieves the desired results. Even in a bike-friendly city like Portland it is important to remind drivers that they need to slow down and pay attention to cyclists and pedestrians.

New York Times: De Blasio unveils plan to eliminate traffic deaths

The Oregonian: Pedestrian deaths should be wake-up call for Portland leaders: Guest opinion

The Oregonian: Portland needs more money for pedestrian safety: Guest columnist

The Oregonian: 20 mph speed limit on neighborhood greenways unveiled in Northeast Portland

Two former Portland-area prosecutors made headlines in The Oregonian this week with their advocacy of marijuana legalization. According to the newspaper Norm Frink and Mark McDonnell both believe that legalization is inevitable and, as a result, are trying to focus public attention on getting the details right.

“This is just a political fact in Oregon, even if some people don’t want to admit it,” the newspaper quoted Frink saying. “As a result,” the paper went on to note, “Frink and McDonnell, who headed the district attorney’s drug unit before retiring, on Tuesday announced that they wanted legislators to refer a marijuana legalization measure to voters in November.” The key to their idea is combining a voter referendum with legislative action. Oregonians would be asked to approve marijuana for personal use, but would charge the legislature with working out the details before the new law went into effect. “The two want to put off allowing legal possession of marijuana until after the legislature figures out how to set up a regulatory system,” The Oregonian reports.

The experience of Washington and Colorado would appear to validate this idea. When the two states became the first to make the possession and use of marijuana legal for personal recreational use the result was an immediate legal conundrum. At the most basic level, legalization puts state law in conflict with the federal government, but there are a number of equally serious – and in some ways more immediate – issues. Take drunk driving, for example. It ought to be relatively easy to agree that impaired driving brought on by pot use is just as dangerous as driving while drunk. Any state legalizing marijuana, however, will need to figure out ways to measure and assess the drug as part of a drunk driving arrest: what level of marijuana impairment crosses a safety line? What is the best and most efficiently to measure it? How should the use of marijuana and alcohol together be treated (presumably the two in combination could cross an impairment threshold at a point when neither, by itself, does so)?

These seem like narrow issues that might be of interest only to lawyers, but as an Oregon drunk driving victim’s advocate I can assure you that they are significant. Until now state and local governments have had the luxury of treating marijuana use as a black-and-white issue: it was illegal, so, if it was in your bloodstream at the time of a traffic stop you were in trouble. The future may not be nearly so clear-cut. With so many problems here in Oregon and around the country related to distracted driving this is not an easy issue to solve, yet, as the two former prosecutors urge, it may require our lawmakers’ immediate attention.

The Oregonian: Oregon marijuana legalization is inevitable – so do it right, two retired Multnomah prosecutors say

With an ice storm warning now extending throughout the day Sunday and road closures throughout the Pacific Northwest this is a weekend to avoid any travel that is not absolutely necessary.

That is not just my opinion, it is the official word from public safety officials throughout the state. As The Oregonian has been reporting – and regularly updating on its home page – the severe weather gripping much of Oregon and Washington State poses a real threat to anyone out on the roads.

These warnings do not only apply to well-known danger zones, like the stretch of interstate in Eastern Oregon known as Cabbage Hill. According to the newspaper, local leaders in both Portland and Beaverton are urging everyone to “just stay home.” Portions of I-5 were closed at this writing. Roads and sidewalks are icy, Portland’s streetcars are not running and Tri-Met is “no longer reliable” according to city transportation officials quoted by the newspaper.

If you must go out, please use the link at the bottom of this page to visit the Oregon Department of Transportation’s “Trip Check” page for the latest information regarding dangerous driving conditions and road closures.

Regular readers of this blog know that I am a Portland car crash victims’ lawyer, but I write today as a concerned Portlander. The worst of the storm we are now experiencing was originally supposed to pass during the overnight hours but on Saturday evening the National Weather Service extended its ice storm warning out to 10pm on Sunday evening.

The more important point, however, is that when that deadline finally does pass it does not mean everything is going to be safe outside, but only, rather, that the worst-of-the-worst is over. Even with the best efforts of city and state officials road conditions are likely to remain treacherous for several days. Indeed, one of the most dangerous travel times in situations like this is immediately after the official weather warnings are lifted. Too often we assume that the end of a weather warning means that all is well when, in fact, the roads remain slick and treacherous. This is a time to be careful – not only on Sunday but as the Monday morning commute approaches as well.

The Oregonian: Portland Bureau of Transportation urges residents to ‘stay home,’ Beaverton says the same

ODOT Trip Check

With Seattle in the Super Bowl this weekend excitement surrounding the Big Game is even higher than usual here in the Pacific Northwest. Unfortunately, increased excitement can often lead to overindulgence, and local and federal officials alike warn that Super Bowl weekend can be a dangerous time to be on the road.

According to a news release issued earlier today by the National Highway Traffic Safety Administration “on Super Bowl Sunday 2012 alone, 38 percent of fatalities from motor vehicle crashes have been connected to drunk driving, compared to 30 percent on an average weekend.” The NHTSA has partnered with the NFL and the Techniques for Effective Alcohol Management (TEAM) Coalition to urge fans to be careful and drink responsibly wherever they choose to watch this Sunday’s game.

If self-control is not sufficient to prevent Oregon drunk driving, everyone should also be aware that police will be out in force across Portland this weekend. “The Portland Police Bureau and the Oregon State Police are teaming up on Sunday in a crackdown on drunken drivers. Their message: ‘Think before you drink.’ If you do, arrange for safe transportation to Super Bowl activities,” according to a report in The Oregonian.

As the newspaper’s report outlines, safe and responsible conduct extends to hosts as well as party guests or restaurant and bar patrons. The paper advises people hosting Super Bowl parties to make sure everyone who is drinking has a designated driver to help them get home and to encourage guests to pace themselves. It even suggests that hosts follow the lead of stadium managers and stop pouring alcohol once the fourth quarter starts. This is all sound advice. Under a legal doctrine known as “Social Host Liability” party hosts can be held responsible for the reckless behavior of their guests just as the state’s Dram Shop Law extends responsibility for the damage a drunk driver causes back to the clerk or bartender who served alcohol to a visibly drunk person.

As a Portland drunk driving victims lawyer I am glad to see this renewed emphasis on safe and responsible conduct. Oregon Public Broadcasting reported after last year’s Super Bowl that DUII arrests on game day fell to 31 from 38 the previous year. Let’s all hope that this Sunday that downward trend continues.

NHTSA Consumer Advisory: Celebrate Super Bowl XLVIII Responsibly

The Oregonian: Super Bowl Sunday DUII Patrols: Portland Police, Oregon State Police Team Up

Oregon Public Broadcasting: Drunk Driving Arrests Dropped this Super Bowl Weekend

A leaked state audit of Tri-Met, details of which appeared in The Oregonian this morning, speaks of morale problems among “front-line” workers (such as bus drivers) and portrays an agency where “safety first” is often little more than a slogan.

The newspaper’s summary of the 54-page report is startling: “TriMet needs to fix a culture where low morale, secrecy, safety problems and more than $1 billion in unfunded financial obligations threaten to wreck the public transit agency,” the Oregonian says, summarizing the report’s key findings. The leaked report is a draft, not a final, official document but that fact does little to ease the sense that state auditors uncovered serious problems as they examined TriMet. The report was compiled by the Oregon Secretary of State’s office.

Perhaps even more surprising is the fact that TriMet does not appear to be disputing the picture the report paints. The newspaper reports that TriMet officials “took the Secretary of State’s criticisms in stride… in a 10-page response, TriMet General Manager Neil McFarlane didn’t disagree with the findings. Rather, he seemed to ask how high he should jump to implement the audit’s suggested improvements.”

Among the audit findings reported by the newspaper several safety-related issues stand out. The paper says “drivers and other front-line workers feel as if their concerns about safety issues aren’t taken seriously.” It also notes that auditors concluded that the transit agency has let maintenance on the MAX light-rail system lapse in several key areas, including repairs to the tracks and signals.

Over the last few years I have used this space to document a long series of reported TriMet failures and missteps. The debate over how much rest TriMet’s bus drivers need has been well-documented here in Portland. Bus accidents, especially accidents involving pedestrians and cyclists, are all too common in our city.

The newspaper also reports on efforts by TriMet’s leadership to blame some of these problems on politicians who, they say, have failed to fund the agency properly, forcing them to leave critical positions unfilled. As a Portland personal injury attorney I find this excuse both inadequate and troubling. TriMet might need more money to operate at maximum efficiency, but a lack of funding can’t explain a corporate culture where drivers believe their safety concerns fall on deaf ears. Perhaps public reaction to the leaked report will lead TriMet officials to view safety issues with the same urgency as other Portlanders – not just TriMet customers, but everyone who shares the street with them: pedestrians, cyclists and other motor vehicles.

The Oregonian: State audit finds Tri-Met needs to take ‘extremely urgent’ money, safety problems more seriously

An item posted late last night on The Oregonian’s website offers details of a serious Washington bicycle accident involving a teenage rider in which a motorist faces assault charges and, potentially, drunk driving charges as well.

The paper, citing the Everett Herald, reports that a 52-year-old Everett man driving a pick-up truck “allegedly struck a teenage cyclist, launching the boy off a 30-foot overpass… the crash caused the victim, 16, to fall about 20 feet onto a hillside, police said. His body then tumbled an additional 10 feet down into the street.” The paper reports that the boy’s injuries include a possible broken neck – meaning that, while they are not, according to the paper, life-threatening, they could be life-altering for both him and his entire family.

The pick-up truck driver “told police he had been drinking beer or wine a few hours before the crash and believed he suffered a seizure.” The paper reports that when he was arrested at the scene the suspect “had trouble standing and could not easily move his hands. Officers said the suspect slurred his speech and had bloodshot eyes.” Bail for the suspect was set at $25,000, the paper reports.

As the brief summary above indicates this one accident raises a number of potential legal issues. We are faced here with a bicycle accident involving reckless driving and, as a result, serious injuries to a child. Had this accident taken place in Oregon that fact would allow a jury to consider punitive damages when the case comes to trial, though in Washington State this is not the case. Alcohol potentially also plays a role, which means this case may also fall under what are known as dram shop laws. These extend liability to a retailer, waiter/waitress or bartender who sells alcohol to a visibly intoxicated person.

As an Oregon and Washington attorney with a practice focusing on both bicycle accidents and injuries to children this case touches several nerves. Adults need to take care when driving, but they need to pay especially close attention to children and teens. The accidents that result from reckless or drunk driving are always the most easily avoidable. It is also a reminder that despite our region’s reputation as one of the most bicycle-friendly parts of America, drivers still need to be especially aware of cyclists and pedestrians every time they get behind the wheel.

The Oregonian: Everett, Wash driver hits teen cyclist, sending him off overpass, police say

The tragic death of an infant last year at a Seattle day care center is spurring calls to action in the state legislature. According to an Associated Press report reprinted in The Oregonian, Washington legislators will soon debate a proposal to “require formal investigations at child care centers when a death occurs, even if the child appears to have died from natural causes.”

“The proposal is named for a 5-month-old girl who died last year while napping in a Seattle home day care center where another death occurred in similar circumstances more than a decade earlier,” the news agency reports. The May 2013 Washington child death has been attributed to Sudden Infant Death Syndrome, or SIDS, which AP describes as “a major cause of death for children 2 and under in child-care settings.”

SIDS deaths can often be prevented with proper infant care techniques including the careful monitoring of sleeping children, but much about SIDS remains unknown and controversial. For those reasons it is surprising that Washington law does not, right now, require an investigation of this and any similar deaths. Common sense would seem to argue that any Washington child death or serious injury should be thoroughly investigated even when it appears to be from natural causes. Only by looking thoroughly at the circumstances surrounding each such tragedy can we learn from it.

The parents of both of the infants who died a decade apart at this particular child care center have testified in support of the legislation. The parents of the baby who died in 2001 even told the AP that upon hearing of the second death they felt a sense of guilt. “We naively trusted the system, and we felt everything that needed to be done had been done,” one said.

As a Washington and Oregon child injury attorney I fully support this effort to ensure that everything that can be learned from a day care center tragedy is learned. The more we know about the circumstances surrounding each infant death the better our chances of ensuring that no child dies in a way that might have been prevented had parents and day care center workers alike known more.

AP via The Oregonian: Washington Legislature Scrutinizes Childcare Deaths

An article in today’s Oregonian (it was published online last night) details the early discussions in Salem about legislation that would dramatically alter where and how liquor is sold here in Oregon. It is a potentially complex issue, one made no simpler by the potential Oregon dram shop law issues raised by the bill.

According to the newspaper: “Under a so-called “hybrid” plan… the state would maintain its monopoly control over liquor but would allow sales in large grocery chains. Smaller state-licensed liquor stores would remain, and merchants would be allowed to set their own prices above a stipulated floor.”

The Oregonian adds that if the plan, which is being proposed by the Oregon Liquor Control Commission, becomes law it “would represent the biggest shale-up of Oregon’s liquor delivery system since Prohibition ended 80 years ago.” The paper notes that there are other liquor law reform proposals under discussion in Salem this winter, including “a possible ballot measure that would take the state out of the liquor sales business and hand it over to the private sector.”

The basic argument in favor of opening up liquor sales is that selling alcohol is not something the government ought to be doing in the first place, not, at least, in this day and age. Arrayed against this are fears that wider availability could encourage underage drinking, reduce customer choice of liquor brands or cause prices to rise.

As a Portland drunk driving victims attorney, however, one issue that sticks out to me is the increased exposure to Oregon’s dram shop laws that these changes might extend to supermarkets. Oregon’s strict laws can extend liability for a drunk driving accident back to the establishment, and even the individual clerk responsible for the sale of liquor to someone who later commits a crime or causes an accident while driving under the influence. One can argue that many of the supermarkets and larger chain stores that could begin selling liquor under the proposed measure already sell beer and wine and, thus, already have both a degree of legal exposure and a presumed familiarity with the Dram Shop Law. This is true in a narrow sense, but it is equally true that Oregon and many other states have long treated liquor sales as something distinct and different from wine and beer for a reason. A bottle of vodka or bourbon can get more people drunker faster than a bottle of wine the same size.

Clearly we are in for several months of detailed, and interesting, discussion as this year’s legislative session unfolds. Oregon’s dram shop laws are a powerful tool to encourage restaurants, bars and retail outlets to act responsibly. It is important for our legislators to think about the dram shop laws and the best way to enforce them before making any changes to our state’s liquor laws.

The Oregonian: Liquor sales in grocery stores gets skeptical response from Oregon lawmakers (poll)