Corporations Go to New Lengths to Avoid Responsibility

April 17, 2014

An article this week in The New York Times highlights the extraordinary measures some companies will take to avoid responsibility for their own actions. According to the newspaper, “General Mills, the maker of cereals like Cheerios and Chex as well as brands like Bisquick and Betty Crocker, has quietly added language to its website” that strips consumers of their right to sue the company for actions as simple as downloading a coupon or ‘liking’ the company or its products on Facebook.

Even more extraordinary, the paper reports: “In language added on Tuesday after The New York Times contacted it about the changes, General Mills seemed to go even further, suggesting that buying its products would bind consumers to those terms.”

The website language requires disputes with the company to be settled through arbitration rather than in the courts. Arbitration clauses have been common in the financial industry for decades but have steadily crept into other areas of American life in recent years. Large companies prefer arbitration because, unlike a trial, it is not open to the public and because the process, while supposedly fair, tends to favor deep-pocketed businesses. Since a 2011 Supreme Court ruling upholding the use of arbitration clauses in cellphone contracts this legal device has spread rabidly through the corporate world.

The case against this move was well stated by Julia Duncan of the American Association for Justice, who told the Times: “It’s essentially trying to protect the company from all accountability, even when it lies, or say, an employee deliberately adds broken glass to a product.” In other words, it is a clause designed to protect the makers of unsafe products from responsibility for their own actions. The newspaper notes that General Mills “declined to make anyone available for an interview about the changes.” This is unfortunate. The Seventh Amendment to the US Constitution guarantees everyone a trial by jury, this is one of the most basic rights of our democracy. The ability of one citizen to take a multi-billion dollar corporation to task before a jury of his or her peers is essential to our way of life. Why General Mills believes that its corporate interests trump that right is harder to fathom.

Regular readers will know that as an Oregon attorney one of my special concerns has long been helping consumers protect their rights, and ensuring that our courts serve their intended function. Justice is only served when ordinary Americans can get a fair hearing when they believe a large, rich corporation has wronged them. We all know that legal fine print is often designed to confuse ordinary readers, and no reasonable person would assume that he or she had given up a wide swathe of rights simply by ‘liking’ a brand on Facebook. The Times is to be commended for this week’s article. It is only through media exposure, and legal challenges, that this sort of corporate overreach can be challenged.

New York Times: When ‘Liking’ a Brand Online Voids the Right to Sue

CNN Host Reminds Us All Why Courts Are Important

April 9, 2014

A few days ago Michael Smerconish, a long-time talk-radio fixture who recently began hosting a show on CNN, ended his daily broadcast with a short commentary (see link below) that began as an essay about the GM ignition-switch scandal but ended up making a broader – and more important – point.

I have written several times recently about the ignition-switch situation. The faulty switches, mainly in Chevy Cobalts though other models are also effected, can sometimes turn the entire car off while it is moving at highway speeds, causing drivers to lose control. In the process they can also disable airbags. The problem led to fatal auto accidents involving at least 13 deaths (that is the number GM publicly acknowledges) and the recall of millions of vehicles – some of which have been on the road for more than a decade. The scandal has grown as it becomes clear that GM knew about the problem for years but was unwilling to spend pennies per car to fix it.

Telling his audience about the lawsuit that began the process bringing all of this to light, Smerconish recounts the story of a family searching for answers in the wake of the death of their 29-year-old daughter, of their decision to hire a lawyer and of that lawyer’s move to commission an independent assessment of the car. Everything that has happened in the years since began with this one case.

Praising the family’s “willingness to file a lawsuit,” Smerconish went on to say: “Our civil justice system is often maligned, but it remains a great check on our free-enterprise system. Often, it serves as a more vigilant force than the government itself. Whether it’s (the National Highway Traffic Safety Administration) being slow to force the recall of defective cars, the SEC not reigning in the forces of Wall Street that brought about the bank collapses, the FDA delaying taking products off the market like Vioxx… so here’s a thought, the next time a jury duty notice arrives instead of thinking about how that service can be avoided, instead consider the power, consider the importance, of the civil justice system.”

Smerconish’s remarks are an eloquent reminder of a point I have made many times on this blog over the years. As a Portland personal injury attorney everything I do is focused on helping ordinary Oregonians and Washingtonians use our courts to get the answers, and the justice, that government or private enterprise often denies them. It is an honor to be able to help people, and to show them that our system, for all its faults, works. Michael Smerconish Commentary on Courtroom Access

Portland Traffic Safety Questions Raised by Lack of Night Patrols

April 3, 2014

An article in Wednesday’s Oregonian raised an interesting question: how many Portlanders are aware that traffic enforcement does not take place overnight? According to the newspaper the city’s last budget cut police funding and, as a result, “the (traffic enforcement) bureau lost five full-time officer positions, and so eliminated the 9 pm to 7 am traffic shift Wednesday through Saturday.”

What this means in practice is that there are fewer officers available to enforce Oregon drunk driving laws. The newspaper quotes Portland police chief Mike Reese saying: “Traffic officers are committed to saving lives. They hold people accountable when they break the law… It’s not easy work. DUII investigations require skill to make arrests prosecutable.” The chief is asking the City Council for $300,000 in additional funds to restore four of the five overnight officer positions that have been lost.

While there are no available statistics looking at how fatal Oregon car crashes are distributed throughout the day, the newspaper notes that Washington State does keep such records. North of the Columbia River “60 percent of all fatal crashes occur between 7 pm and 5 am,” according to a Portland police spokesman cited by the newspaper. There is no reason to suppose that the pattern is not at least broadly similar here in Oregon.

It is also worth considering that if we do not have police on Portland’s streets to enforce our drunk driving laws during the overnight hours then there may be other aspects of this problem that are also failing to receive adequate attention. Under Oregon’s dram shop laws a restaurant or a shop selling alcoholic beverages can be held liable for the actions of a drunk driver if it served someone who was visibly intoxicated. These issues are often time sensitive, and are best investigated as soon as possible after an Oregon drunk driving accident takes place. That can’t happen when there are no traffic enforcement officers working the overnight shift.

This fact is a reminder of why it is so important that our courts are here to help Portland drunk driving victims obtain justice. DUII accidents are nearly always preventable. Avoiding them is, ultimately, a question of personal responsibility. Our courts are a key institution, ensuring that people are held accountable for their actions. The police are another such institution. As an Oregon DUII victims’ lawyer it is my job to work with law enforcement and other first responders in the wake of an accident to ensure that justice is served, regardless of what time of day the accident takes place.

The Oregonian: Portland police chief seeks to restore traffic unit’s night shift; fire chief wants funding for 26 firefighters

Washington Industrial Accident fears Raised by Gas Explosion

March 31, 2014

Residents of Plymouth, Washington and neighboring Hermiston, Oregon were greeted this morning by what the Associated Press described as “a mushroom cloud of black smoke visible for more than a mile.”

The cause was an explosion at a natural gas plant on the Washington side of the Columbia River. The news agency reports that the blast injured four workers at the plant and forced “about 400 people to evacuate from nearby farms and homes.” It quotes local law enforcement officials blaming the incident on a gas leak.

While it is certainly true that the incident could have been much, much worse – “I think if one of those huge tanks had exploded, it might have been a different story,” the AP quotes the local sheriff saying – the accident still raises worrisome questions about Oregon and Washington industrial accidents and about the overall quality of the safety procedures at this and similar facilities.

The company that runs the plant, working with investigators, is still trying to figure out exactly what caused the blast, but even at this early stage it is all but certain that industrial accident questions are likely to be on the investigators’ agenda. Under Oregon law an industrial accident occurs not only when a company fails to maintain its equipment or to properly train its workers in how to use it. In legal terms Industrial accidents can also be traced back to the manufacturers of that equipment if it can be shown that they failed to manufacture a safe product or to offer appropriate advice and training to people installing the finished product. Thus it will be important for investigators of this gas explosion to look not only at the plant itself and how it was run, but at the equipment used to operate it, the instructions that came with that equipment when it was purchased or upgraded and the support and training offered by the vendors after installation.

As an Oregon and Washington industrial accident lawyer I will be paying close attention to the aftermath of this incident and how the investigation develops. It is important for the populations of Plymouth and Hermiston to know that the major industrial facilities in and near their communities are operated and maintained in a safe and lawful manner.

AP via The Oregonian: Too early to determine cause of natural gas explosion in Eastern Washington, company says

GM Recall Widens and Questions Multiply

March 28, 2014

On Friday General Motors announced yet another expansion of the widening recall of its small cars. According to the New York Times, the company “is expanding its ignition-switch recall to include an additional 971,000 small cars worldwide, including 824,000 in the United States, that may have been previously repaired with defective switches.”

As I noted in a post earlier this month, well before today’s announcement GM had already recalled more than a million cars built since the 2003 model year because of a defect that may lead the ignition switch to cut off. That, in turn, could mean that air bags fail to deploy in the event of a crash. As the latest developments indicate it is now clear that many cars had the faulty switches added to them when they went in for repairs.

More disturbing, however, are the continuing revelations about the way in which GM has handled this scandal. In a move that may yet lead to wrongful death lawsuits, company documents have shown that GM misled grieving families for years, telling those who had lost loved-one in crashes linked to the flaw “that it did not have enough evidence of any defect in their cars, interviews letters and legal documents show.” This happened even as the company was internally debating the best way to fix the problem, the newspaper reports.

Perhaps the single most shocking revelation from the Times is that at one point GM sought to cover its tracks by threatening “to come after the family of an accident victim for reimbursement of legal fees if the family did not withdraw its lawsuit. In another instance, it dismissed a family with a terse, formulaic letter, saying there was no basis for claims,” according to the Times.

As a Portland attorney dedicated to helping defective product victims and their families this goes to the heart of issues I have written about in this space for many years: our court system is one of the few places where ordinary Americans can hold rich and powerful companies to account when they act irresponsibly. GM has deeper pockets than any individual, but it has to face people it has wronged on an equal footing when both stand before the law. Helping people stand up to irresponsible corporations is not just a part of my legal practice, it is something I deeply believe in, because it is the basis of our entire judicial system.

New York Times: GM Expands Recall to Include Later Models

New York Times: General Motors Misled Grieving Families on a Lethal Flaw

Salem Reckless Driver Arrested

March 24, 2014

A reckless and dangerous driver caused problems on I-5 this afternoon but is now in jail, according to The Oregonian. The newspaper’s website reports that a 26-year-old Portland man is being held in the Marion County jail on charges of reckless driving and “18 counts of recklessly endangering another person.”

According to the newspaper, witnesses said the driver “was speeding, passing cars on the shoulder and weaving across all three lanes of traffic in a 1999 gold Ford Taurus… Oregon state police caught up with him right before 1 pm as he exited I-5 toward Salem Parkway Avenue.”

It goes without saying that incidents like these can cause serious, sometimes fatal, Oregon car accidents. In some instances these can lead to serous traumatic brain or spinal cord injuries or even deaths.

It is worth asking how the alleged driver was able to continue down a major freeway for nearly 30 miles before police were able to apprehend him. In instances like this, of course, the state police and other authorities are forced to make split-second decisions that may effect many people. Still, a careful observer must ask whether it might have been possible to bring this alleged driving spree to a stop sooner.

As an Oregon car accident lawyer dedicated to helping the victims of reckless driving I am glad to see that no one appears to have been injured in this incident. That does not, however, let the alleged driver off the hook. In the coming days and weeks his victims and their families need to consider the options that the civil court system offers them as they assess the material and the mental damage his alleged actions have caused. It is important to remember at times like these that our civil and criminal courts address different aspects of justice , complimenting each other, rather than competing.

The Oregonian: Man, 26, arrested in reckless driving on I-5 from Wilsonville to Salem

Toyota Settlement Leaves Door Open for Wrongful Death Claims

March 21, 2014

Yesterday’s announcement that Toyota has reached a settlement with the Justice Department was striking on several accounts. First there is the settlement’s sheer size. “Toyota will pay a $1.2 billion penalty to settle the criminal probe into its handling of unintended acceleration problems that led to recalls of 8.1 million vehicles beginning in 2009,” according to an account in USA Today.

The paper adds: “the federal criminal probe… was independent of federal safety regulator and congressional probes of the Toyota sudden-acceleration recalls. It looked at whether Toyota provided false or incomplete statements to the National Highway Transportation Safety Administration in the events leading to recalls for floor mats that could trap gas pedals and gas pedals that could stick… Toyota already paid two federal fines of $16.375 million in 2010 for delays in reporting the floor mat and pedal defects, and another $17.35 million in 2012 related to an additional mat recall.”

As the paper goes on to report, the problem first came to public attention in 2009 “with a rash of runaway car reports.” Five deaths have been directly linked to the problem, but the larger issue – and the one that Toyota must continue to deal with – is evidence that the company knew about these problems but covered them up.

It is important for Oregonians to understand that the deal Toyota has reached with the federal government regarding its criminal case will not exempt it from potential civil liability stemming from its negligence. As the paper notes, the company has already agreed to pay out “more than $1 billion to resolve hundreds of claims from owners… (but) also faces ongoing wrongful death and injury lawsuits” both in California and in federal courts.

As a Portland lawyer focusing on wrongful deaths and defective products I am happy to see the company making amends with the government, but am even happier to see that this will not deny Oregonians and other Americans injured through Toyota’s willful negligence the chance to confront the company through our legal system. This case is a reminder both of why safety regulations – carefully drawn-up and vigorously enforced – are so important to all of us. It is also a reminder of the key role our courts play in holding greedy companies accountable for their irresponsible actions, particularly when they put the bottom line ahead of people’s safety by working to evade the safety rules created to protect us all.

USA Today: Toyota to pay $1.2 billion to settle criminal probe

Forbes: The steep cost of Toyota’s settlement with the US government

Price Gouging at Trauma Centers Moves into the Spotlight

March 16, 2014

We have all heard stories of medical price-gouging, but an investigation published earlier this week by the Tampa Bay Times shows that in Florida hospitals have taken the practice to a new level.

According to a lengthy investigation by the newspaper, a change in Florida law several years ago allowed hospitals to charge special fees for the use of trauma centers. The centers are specialized facilities within emergency rooms and hospitals have long argued that establishing and maintaining them incurs unique costs which the institutions ought to be able to pass along to patients and insurance companies. For such fees “a fair cost, according to the federal government’s Medicare program, is just under $1000.” According to the newspaper, however, because the fees are not regulated “the average fee today tops $10,000; the most expensive hospital regularly charges $33,000.”

To be clear: these fees are in no way related to actual services rendered. They are, as the newspaper puts it, a “cover charge.” The paper recounts numerous instances in which patients “were charged more in trauma fees than for their actual medical care.” Since the fees are both unregulated and unrelated to the actual medical services a patient receives, the hospitals have an obvious incentive both to raise the fees as much as they can and to admit patients to the trauma center regardless of whether or not they actually need to be there. In one particularly shocking case, “an uninsured woman… was charged $33,000 even though she only needed someone to treat superficial cuts.”

Stories like these raise serious questions of patient safety. One must ask what is going undone, or who may be left awaiting treatment, while hospitals are working to maximize the fees they can collect merely for entering the door of a trauma center. Lest one dismiss this as a Florida story with no relevance here in Oregon, it is worth adding that key research on this issue was conducted by Portland’s Oregon Health and Science University Hospital. An OHSU study published last year looked at seven western cities, including Portland, and concluded that trauma center charges billed to patients “who didn’t need to go there (cost) the health system more than $130 million per year.”

Wastefulness and price gouging are just two of the many things that are driving up the cost of medical care in Oregon and across the United States. As a Portland-based patient safety and personal injury lawyer practicing in both Oregon and Washington this is an issue I follow closely. We all have the right to receive the medical care we need (that is why emergency rooms are barred by law from withholding life-saving medical care), but ensuring that it is affordable and truly available for every American and every Oregonian is, unfortunately, more difficult than it should be.

Tampa Bay Times: Insult to Injury

Tampa Bay Times: Debate over Florida trauma response fees moves to Tallahassee

Science Daily: Minimially injured people sent to trauma centers cost hundreds of millions per year

GM Recalls Raise Deeper Issues of Corporate Responsibility and Regulatory Oversight

March 4, 2014

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

New Research Links Soccer to Traumatic Brain Injuries

February 28, 2014

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

Oregon Drunk Driving Measure Debated in State Senate

February 25, 2014

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

Oregon Class Action Legislation Seeks to Close Gaping Loophole

February 22, 2014

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