Oregon Injury Lawyer Blog

May 30, 2017

New Technologies, New Legislation and Oregon Distracted Driving

With the Oregon Senate taking up HB 2597, a bill that would significantly increase fines for distracted driving, this is a good moment to look at both the state of the law here in Oregon and at a new technology-driven effort to combat the problem.

As The Oregonian reports, the state House passed HB 2597 early this month. According to the newspaper’s legislative tracking site the Senate held its first hearings last week and the Senate Judiciary Committee has a work session on the measure scheduled this Tuesday (May 30). If enacted, the legislation would make major – and much needed – alterations to Oregon’s existing distracted driving law.

Under current law, as laid out in ORS 811.507, distracted driving is a Class C traffic violation, punishable by a fine of up to $500 (though in practice assessed fines are often much lower – usually around $160). According to The Oregonian “under HB 2597, Oregon drivers could be fined up to $2000 for using a ‘mobile electronic device’ while on the roads. Fines for a first offense could total $1000 and be erased if drivers take a state-approved distracted driving avoidance class at their own expense. Subsequent offenses, or a first offense that causes a traffic collision, would result in higher fines that could not be waived.”

May 26, 2017

Holiday Weekend Prompts Warning About Water Sports

by Matthew D. Kaplan

According to a recent Oregonian article there have been three instances of water-related fatalities in Oregon in just the last few weeks. With the long holiday weekend upon us, that makes this an especially important moment to remind everyone of essential safety precautions, especially when it comes to preventing injuries to children.

In an article this week the newspaper noted that “authorities suspended their search… for a missing swimmer who’s presumed drowned at Three Pools, a popular swimming hole in Marion County. A man who jumped into the North Umpqua River in Douglas County is also presumed drowned. And a Portland man is presumed drowned after he jumped into the Clackamas River.” It goes on to note that 21 “people drowned in public, natural waterbodies in Oregon and southwest Washington last summer.”

Memorial Day weekend will bring even more people to the water, and potentially expose them to a wide variety of dangers, but the good news is that many of these can be minimized through a few basic, common sense precautions. Among the easiest – and most important – is ensuring that everyone in a boat, canoe or kayak is wearing a life jacket. Nearly a year ago I used this space to publicize the Aaron Peters Water Safety Fund, a non-profit dedicated to keeping everyone, but especially kids, safe when they are on the water. The fund, as its website explains, “is designed to help aid in building kiosks for life jackets” with the goal of preventing drownings in high-risk areas. Life jackets can be borrowed from APWSF kiosks for free. Last summer the fund exceeded its initial goals by setting up kiosks in eight locations around the state in just a few months. The link below offers both a complete list of the current kiosks and more information on the fund and it’s important work.

May 17, 2017

Oregon Supreme Court Weighs In On the Side of Patients

by Matthew D. Kaplan

An Oregon Supreme Court ruling issued last week has received remarkably little coverage outside of the specialized legal press, but it deserves much more attention. In the case of Smith v Providence Health & Services (361 Or 456) the court reversed rulings from both the trial and appellate courts, and found that a legal doctrine known as Loss of Chance “is cognizable under Oregon common law.” In doing so, it significantly increased the rights of ordinary Oregonians confronted with failures or negligence on the part of the medical system.

As the Bend Bulletin, one of the few newspapers to have taken note of the case, aptly noted, the ruling means that Oregonians “can bring medical malpractice cases not only when they are injured but also when negligent care denies them a treatment with a potentially better outcome.”

The case revolved around a man “who went to a Hood River emergency room in 2011 concerned that he was having a stroke. Doctors discharged him without ordering an MRI or prescribing clot-busting drugs. By the time an MRI confirmed a stroke a week later (he) had incurred significant brain damage.” Both the article and court’s opinion note that had these precautions been taken there is a one-in-three chance that the plaintiff would have recovered substantially, perhaps even completely, from the stroke.

May 10, 2017

Jury Award Links Talc to Ovarian Cancer

by Matthew D. Kaplan

Last week a jury in St. Louis became the fourth in a year to award substantial damages to a plaintiff who believes that consumer goods giant Johnson & Johnson’s talcum power is linked to ovarian cancer. According to a Bloomberg News report, the Missouri jury awarded the woman $110 million in damages. This follows three jury verdicts of $55 to $72 million in similar cases last year (the company has won one case during the same period, according to Bloomberg). Appeals are expected in all of the cases.

The agency quotes the attorney for the plaintiff in the St. Louis case saying: “Once again we’ve shown that these companies ignored the scientific evidence and continue to deny their responsibilities to the women of America… they chose to put profits over people, spending millions in efforts to manipulate scientific and regulatory scrutiny.” In addition to the millions in damages from J&J the jury also Imerys Talc America, a separate company that manufacturers talc sold under the J&J label, to pay $100,000 in damages.

Bloomberg reports that more than 1000 cases alleging a link between J&J’s talc and ovarian cancer have already been filed. Though J&J is headquartered in New Jersey many of these cases have been filed in Missouri because that state’s laws allow for suits like these to be filed in its courts even when the plaintiff has no connection to the state (last week’s $110 million verdict involved a woman from Virginia). But is it necessary for all these cases to head for the Midwest? Are the product liability laws here in Oregon adequate to address cases like this?

May 2, 2017

Prison Death Case Raises Serious Civil Rights Issues

by Matthew D. Kaplan

The death by thirst of an inmate in a Wisconsin jail last year has returned to the news this week raising serious civil rights issues and, in the process, shining a light on the broader problem of inmate abuse nationwide.

The story from Milwaukee is shocking on every level. According to a recent report in HuffPost, citing the Milwaukee Journal-Sentinel, a mentally-ill man died of severe dehydration last year while being held in the county jail after he “was kept in his cell for seven days straight after jail employees cut off his water supply.” Last week prosecutors, speaking at a formal inquest, called the action “highly irregular and contrary to standard operating procedure in the jail,” according to HuffPost. The article does not use the phrase “cruel and unusual punishment” – something explicitly prohibited by the Eighth Amendment to the US Constitution – but on its face it is difficult to see how cutting off a prisoner’s water for a week would not rise to that standard.

The case is receiving renewed attention as an inquest seeks to determine whether or not criminal charges should be brought against any of the jail’s employees or their supervisors. The decision will be made by a six-person jury. The case highlights a broader point about deaths in custody that some organizations, notably the American Civil Liberties Union, have been making for some time. An article on the ACLU’s website documents the degree to which “excessive force by correctional staff… leads to extreme, unnecessary suffering and sometimes death.” Along the same lines, a HuffPost investigation found that more than 800 people died in American jails last year, 182 of them within three days of their arrest.

April 29, 2017

Abuse Scandal Raises Questions About State Oversight

by Matthew D. Kaplan

An investigation by The Oregonian has revealed that the state agency charged with fighting the abuse of senior citizens and the disabled has been hiding thousands of cases of neglect. The revelation calls into question Oregon’s entire approach to elder abuse and neglect and is a yet another reminder of the important watchdog role that both the media and our courts must always play in society.

According to the newspaper “the Department of Human Services operates a website that is supposed to help consumers identify safe havens for their aging loved ones, including those suffering from Alzheimer’s and other debilitating illnesses. But an investigation… found that officials have excluded nearly 8000 substantiated claims of substandard care from the state’s website.” The Oregonian reports that its investigation was based on examinations of state records that are not available online, and therefore harder for the general public to access and assess. It notes that “more than 60 percent of the substantiated complaints against care centers in Oregon since 2005 can’t be found on the state’s website.”

The Oregonian’s report emphasizes that all of the complaints excluded by the state and uncovered by this investigation had been verified by state employees. The question, in other words, was not whether the abuse occurred but whether Oregon was willing to acknowledge it.

April 19, 2017

Children’s Product Recalls Reach 10-year High

by Matthew D. Kaplan

2016 saw “the largest number of children’s product recalls in more than a decade,” according to the Chicago Tribune and a report published earlier this month by the non-profit watchdog group Kids in Danger.

The unusually high total was driven by two especially high-profile recalls: IKEA’s withdrawal of its Malm collection dressers and chests of drawers (click here for the blog I wrote on the subject after a $50 million settlement in the case was announced late last year) and McDonald’s move to recall millions of activity watches after the wristbands were found to cause skin irritations. The Tribune reports that each of these incidents accounted for around 29 million units out of a total of nearly 67 million units of children’s products pulled off the market in 2016.

The executive director of Kids in Danger, speaking to the newspaper, summarized the problem succinctly: “This is not a regulatory problem,” she said. “This is a problem with companies not acting quickly enough to take what is a dangerous product out of use.” The IKEA case is a particularly striking example because the now-recalled dressers had been on the market for many years. One death linked to them took place in 1989.

April 13, 2017

Keizer Distracted Driving Case Breaks New Legal Ground

by Matthew D. Kaplan

A recent article in the Salem Statesman-Journal outlined a distracted driving conviction in Keizer that was a first for Oregon. According to the newspaper “a Medford woman became the first person ever to be convicted of causing another person’s death by driving while distracted by her cell phone.”

The 50-year-old woman pleaded guilty to criminally negligent homicide earlier this month “and was sentenced to three years of supervised probation,” the newspaper reported. The September 2015 accident took the life of a 68-year-old man who was crossing the street when struck by the woman’s car.

The case highlighted a significant loophole in Oregon’s distracted driving statute. As the Statesman-Journal reports, a 2015 Oregon Appeals Court ruling (State v Rabanales-Ramos – 273 Or App 228 (2015)) took a narrow view of the Oregon distracted driving law (ORS 811.507), essentially creating a loophole for all forms of distracted driving other than talking on the phone or texting. Under this interpretation, for example, using an eReader such as a Nook or Kindle would have been permitted while driving.

March 30, 2017

Teens and Drunk Driving

by Matthew D. Kaplan

A recent article – written by a doctor – in the New York Times states it bluntly: “The mix of drinking and driving is as dangerous to adolescents as you think it is, dangerous when adolescents are driving, and also dangerous when they are the passengers.” The piece goes on to note that “alcohol is a factor in half of the deaths of people under 21 from motor vehicle crashes.” The article also notes that alcohol-related traffic accident deaths among teens are roughly evenly distributed between drivers and passengers.

In one sense this is not news, but at a broader level it is good to be reminded of how serious an issue drunk driving still is, despite decades of public awareness campaigns. That it should still be a factor in so many teen deaths is perhaps a bit surprising a generation after the drinking age was raised to 21 throughout the country.

According to the newspaper parental example remains one of the most powerful factors in determining young people’s attitudes toward drinking and driving. “What parents do – the way they drink and whether they drink at all – is more important than what they might say about alcohol,” the Times notes. Studies have found that peer pressure also remains a serious issue: teens are much more likely to binge drink if they are hanging around with other people their own age who are doing the same thing. Oregon, like every state, has strict laws governing both drunk driving (ORS 813.010) and the broader category of reckless driving that often accompanies it (ORS 811.140). The possibility of serious consequences including injuries to children and wrongful deaths is one of the things that makes drinking and driving such a serious matter.

March 25, 2017

Oregon Teen’s Death Prompts Reckless Driving, Wrongful Death Questions

by Matthew D. Kaplan

The death this month of a 15-year-old Grant’s Pass boy as he waited for his school bus raises serious legal questions that I would like to take a moment to explore. As reported recently in The Oregonian, the boy “was waiting on the sidewalk at his bus stop around 6:50 am” when a pick-up truck “drove over Redwood Avenue’s center turn lane, into the opposite lane of travel and onto the sidewalk, hitting him.”

The driver of the pick-up was a 21-year-old man from Central Point. After hitting the boy, the paper reports, he “drove off the sidewalk and stopped nearby, authorities said.” He is now being held in a local jail and faces both a criminally negligent homicide charge and separate drug possession charges. The Oregonian reports that heroin was found in the pick-up though it does not say whether blood tests indicate that the driver was under the influence of drugs or any other substance at the time of the accident.

Beyond the criminal charges the driver faces this is exactly the sort of case where civil liability is justified to help family members know that justice has truly been served. To that end, it is instructive to examine Oregon’s Wrongful Death statute (ORS 30.020) in greater detail.