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I have written on several previous occasions about corporate America’s systematic attacks on the class action system. A recent news item from the Associated Press offers a positive reason to revisit this topic. As the news agency writes, the huge insurance company State Farm reached a settlement earlier this month “in a federal class action lawsuit claiming the company funneled money to the campaign of an Illinois Supreme Court candidate.”

The preliminary $250 million settlement has its roots in a 1999 case that went against State Farm “for its use of aftermarket car parts in repairs.” Thousands of policyholders had sued the company alleging that its decision to pay for used (“aftermarket”) rather than new car parts when carrying out repairs on their vehicles violated the terms of the company’s contracts with customers. State Farm lost the original 1999 case and was facing the prospect of a $1.06 billion judgement against it. The company appealed, which is obviously it’s right and a reasonable thing for it to do. What was not right and proper was for the company to attempt to fix the final result of that appeal.

With the case making its way toward the Illinois Supreme Court, State Farm allegedly poured money into the campaign of a candidate for chief justice who, once elected, provided the key vote to reverse the trial court’s decision. In 2005 “the court ruled that the nationwide plaintiff class was improperly certified… It also contended using aftermarket car parts was not a breach of State Farm policyholders contracts.”

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Over a two-week period earlier this month five pedestrians were killed on Portland’s streets, an extraordinary number for such a short period of time. One other pedestrian and three motorists had also died in Portland during the first 10 weeks of 2018, according to The Oregonian.

The newspaper quoted the city’s transportation director describing the middle of March as “an awful two weeks,” but also said she “remains hopeful Portland is making progress on improving safety for pedestrians, cyclists and motorists.” She added that the recent spate of deaths “doesn’t discourage us and the work that we’re trying to do.” The paper quoted a representative from a local advocacy group arguing that the deaths showed the need for greater, and faster, investment in safety infrastructure.

Indeed, there is a strong argument to be made that the recent pedestrian deaths in our city make Vision Zero and other safety programs even more important than ever. As I have written in earlier posts, Vision Zero is a program that strives to make the city safer for everyone, whether they are walking, riding a bike or driving a car or truck.

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The exact details surrounding this week’s horrible train crash in Dupont, Washington, south of Seattle, are still being pieced together. If the media reports that have emerged this week are accurate, however, they paint a picture of an extremely reckless engineer. That, in turn, raises questions about the safety controls and background procedures which Amtrak has – or should have had – in place to prevent exactly this kind of accident.

According to The New York Times, investigators at the crash scene near Tacoma are “focusing on the possibility that the engineer was distracted by a cellphone, another person in his cab or something else when the train barreled into a curve 50 miles per hour over the posted speed limit.” The driver and other members of the train crew, all of whom are currently hospitalized, will also be tested for drug and alcohol use.

As numerous media accounts have noted in the days since the crash, this accident in many ways resembles another fatal Amtrak crash near Philadelphia in 2015. In that instance the train was also traveling much too quickly, leading it to jump the tracks. An investigation showed that the engineer, who died in the accident, had “lost situational awareness,” according to the Times. The combination of distraction and lack of familiarity with the train’s route is emerging as a focus of the National Transportation Safety Board’s investigation. Monday’s crash took place during the inaugural run of a new Seattle-to-Portland passenger service and took place on a new portion of the route where tracks had recently been upgraded. The paper quotes a rail safety expert asking rhetorically whether the engineer driving Monday’s train was sufficiently familiar with the new portions of the route. “I’m sure there was some familiarization, but the question is, how familiar was he with it?”

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A recent article in The Oregonian details a distressingly long list of safety and oversight failures at a single daycare center in Keizer leading to a number of injuries to children.

According to the newspaper the Iris Valley Learning Center “amassed one of the worst safety and health records in Oregon over a decade based on sheer volume of state rule violations… The state Office of Child Care tagged Iris Valley with 102 violations from 2007 through 2016.” This included eight instances of broken bones – “the largest number of fractures at any provider during that period.”

It is important to note that the instances cited by the paper are all forms of neglect – lack of proper supervision of children, inadequate staff numbers, an unsanitary kitchen – rather than abuse per se. This is important because while we often focus attention on physical abuse it needs to be understood that child neglect is also a serious offense under Oregon law. Second Degree Child Neglect is a Class A Misdemeanor. As defined in ORS 163.545 it includes any action that results in leaving “the child unattended in or at any place for such period of time as may be likely to endanger the health or welfare of such child.” (First Degree Child Neglect – ORS 163.547 – is a felony but is much more narrowly defined and mainly concerns drug offenses that take place in close proximity to children).

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I have written on many occasions about the scandal surrounding the millions of defective airbags manufactured by the Takata Corporation. These “have been linked to at least 13 deaths worldwide and more than 100 injuries,” according to The New York Times. The recall of some 60 million vehicles equipped with this faulty safety equipment is an ongoing scandal of truly global proportions.

An editorial published earlier this month in The Times, however, is a jarring reminder of what happens when the public’s attention wanders and pressure for change wanes. According to the newspaper “just 8.4 million affected cars had been repaired as of May 20… Last year, the secretary of transportation, Anthony Foxx, said an estimated 20 percent of recalled cars are never repaired, and perhaps more.”

That would be bad enough. But, shockingly: “even now, four automakers – Fiat Chrysler, Toyota, Volkswagen and Mitsubishi – are selling new cars that contain the faulty airbags, according to a new report by Democrats on the Senate Commerce Committee. And Fiat Chrysler and Toyota have refused to disclose which of their models contain the devices,” according to The Times. As an Oregon dangerous products attorney I find this stunning.

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John Oliver made a big splash last weekend by highlighting the unsettling, and ridiculously lightly-regulated, world of medical debt collection, but a much longer and more serious story published a few days earlier by NPR adds significant depth to reporting on this undercovered issue.

The NPR piece (linked below) details how non-profit hospitals across the country have abused their tax-free status to pursue poor Americans in court. When discussions about universal health care take place in this country it is stories like these that we need to focus on: people who are driven into bankruptcy or who do not get the health care they need because they lack the money to pay outrageous medical bills. That these people are being hounded in court by institutions that also enjoy tax-free status is simply unconscionable.

A search at ProPublica, the public interest journalism website, yields tax filings for dozens of non-profit hospitals here in Oregon. As Oregon Public Broadcasting recently noted, that tax status is predicated on the idea that hospitals which are not in business to turn a profit will do substantial charity work and forgive medical debt whenever it is practical. Yet as OPB documents, between 2014 and 2015 the funds devoted to charitable health care dropped by more than a third here in Oregon, despite the fact that during this time period Obamacare was bringing many more low income patients into our state’s hospitals.

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With pedestrian and bicyclist deaths on the rise here in Portland, something I wrote about earlier this month, safety questions are increasingly becoming part of our city’s political agenda. As The Oregonian noted in a recent article, 2016’s “year-to-date death toll is nearly twice the seven fatalities recorded during the same period last year.” As a result, attention around this issue is increasing.

It is especially noteworthy that eight of this year’s 13 fatal crashes involving a cyclist or a pedestrian have happened in East Portland neighborhoods, according to a Portland Bureau of Transportation official quoted by the paper. At a time when the city is trying to implement the “Vision Zero” program, which aspires to eliminate pedestrian deaths on Portland’s streets by 2025, the rise in fatalities is especially unwelcome. With luck it will also serve as a spur to action.

According to the newspaper, city officials have plans to install many more flashing yellow lights at crosswalks, particularly in East Portland, as part of the Vision Zero project. The city also plans to make alterations to curbs and median islands in an effort to make key crossings more pedestrian and bike-friendly. The paper reports that the city recently installed rapid-flash beacons – “devices that light up for drivers to see pedestrians, who, in turn, hear ‘yellow lights are flashing’ in English and Spanish” – in 16 locations around the city, building on a program that has brought 34 of these devices to East Portland alone since 2012.

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Last Friday the Oregon Senate unanimously approved “a bill aimed at ensuring that sexual assault evidence is submitted for lab testing in a timely manner and not left untouched on police evidence shelves,” according to a report in The Oregonian. The bill is named for a teenage Northeast Portland girl who was raped and murdered across the street from her home in 2001.

Melissa’s Bill, as it is known, focuses on untested sexual assault kits because of the discovery that “sexual assault kits from at least two other young teens raped by the girl’s killer four years earlier sat on the Portland Police Bureau’s evidence shelves” and were not tested until a connection was drawn between them and the 2001 case. According to the newspaper the girl’s parents hoped that their child’s death would at least lead to a change in police procedures, and to more timely testing of rape and assault kits. When a newspaper investigation revealed that despite the passage of more than a decade little had changed Melissa’s parents went to the legislature.

As described by the paper the bill will require that, beginning next January 1, “each police agency in Oregon shall adopt written policies and procedures concerning the collection, submission for testing and retention of the kits. Under the bill police must pick up the kits within seven days after a hospital alerts them about a kit’s existence and submit them to the state crime lab for testing within 14 days of receipt. All kits must be stored for 60 years.”

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A recent announcement that two Portland glass factories may have contaminated their surrounding area is a pointed reminder of how Oregon industrial accidents need not be dramatic and violent. Sometimes a problem can develop slowly over time and be just as potentially deadly.

According to a recent article in The Oregonian, state public health officials warned earlier this month that “vegetables grown close to Bullseye Glass in Southeast Portland and Uroboros Glass in North Portland could contain harmful levels of chromium, arsenic and cadmium. They asked physicians to advise patients not to eat them until more is known.” The advice extends to homes and gardens within a half-mile of both factories. The paper notes that state environmental officials are currently conducting tests in the area around both factories. These include both the collection of soil samples in the affected area and taking urine samples from people who live in the area.

The first priority is clearly the health of the people who live near these factories, but as the investigation moves forward officials can and should look closely at how the alleged contamination was able to happen in the first place. Distressingly, the newspaper reports that the test results will “only cover cancer cases over a five year period. The factories have been there for 40.” It is important that the investigation not stop there.

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As we count down the final hours of 2015 this is a good moment to remember the importance of celebrating safely. Yes, you read many warnings like this every year, but there is good reason for that. For all the effort that goes into education and prevention in the run-up to every December 31 the evening remains one of the most dangerous times of the year to be on the roads.

As noted by Eugene TV station KEZI, Mothers Against Drunk Driving has reported that fully one-third of traffic fatalities each year involve alcohol. Recognizing the dangers, and in an effort to curb Portland drunk driving, Tri-Met will again be offering free transportation tonight, starting at 8 pm.

As a number of media outlets have noted, New Years Eve traffic fatalities across the state have fallen in recent years. Indeed, two years ago there were no New Year’s traffic fatalities at all. Arrests, however, have steadily risen over the same period, indicating perhaps that if education has been less than a complete success enforcement, at least, goes a long way toward cutting down on accidents. Medford TV station KDRV is warning its viewers to expect “saturation patrols” tonight, and that advice can safely be said to apply throughout the state.

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50 SW Pine St 3rd Floor Portland, OR 97204 Telephone: (503) 226-3844 Fax: (503) 943-6670 Email: matthew@mdkaplanlaw.com
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