Newsletters - Fall 1999

Opening Remarks

Our newsletter is intended to be of ifnterest and assistance to our friends and colleagues. If you want additional information or if you have suggestions, please call us at 1.800.783.2434, 541.484.2434, or fax 541.484.0882.

2.3 Million Medical Negligence Verdict

On March 8, 1999 a Josephine County jury returned a verdict on behalf of our client for $2,285.191. This was the first plaintiff's verdict in Josephine County in recent memory in a medical negligence case.

Our client suffered permanent paraplegia when his doctors failed, over the course of several days, to diagnose the severity of an on-the-job injury. While he was working at a mill, a wood stick kicked back from a saw and pierced his side, penetrating all the way to his spine. Over the next four days, the wood in his spine caused a gradual neurological deterioration that went untreated because his doctors ignored symptoms and nursing evaluations.

In consulting with our experts we determined not to press a claim against the first general surgeon who had seen our client. Although the claim against him had forensic appeal (after all he had left chunks of wood in the young man's spine), our experts questioned whether he had violated the standard of care. Because we felt that a close call would likely go to the physician, we dismissed the first doctor. A second general surgeon who had followed our client in the hospital settled after his deposition was taken. The remaining defendant was an orthopedic specialist who had been brought in to diagnose and treat nerve injuries. His insurance carrier refused to make any settlement offer so we tried the case against him alone.

Why did the insurance company refuse to negotiate? It relied on the track record and the fact that doctors are highly respected. Many jurors have been helped back to health by their doctor. And most jurors have heard insurance industry propaganda which raises fears about small communities being left without health care. We countered that citizens of a small town should expect no lesser standard of health care than people living in urban areas. We told the jury they could uphold the standard of care in their own community.

The defendant orthopedist presented several local physicians, as well as doctors from Portland, to testify on his behalf. They hit several themes. They subtly blamed nurses and other doctors. They argued that our client had an unfortunate result, but that the defendant doctor had met the standard of care. And they presented a novel theory of how his injury was caused, arguing that the paraplegia was an inevitable consequence of the initial blow.

Such causation defenses have become a mainstay of medical negligence cases in Oregon. Predictably, one or more physicians will present a surprise causation theory that would not likely pass muster with any medical journal. These causation defenses are powerful because they are undisclosed before trial and are thus difficult to anticipate. We were ready though, and our rebuttal witness, an experienced neurosurgeon, was able to convincingly debunk the defense theory.

At trial, we emphasized that the claim was not that the orthopedist was a bad physician, but that he had not met the standards of his specialty in this one case. Again, we were fortunate to have an extremely strong witness to present our side of the case and to disprove the defense's novel causation theory. In closing we returned to our theme of entitlement to good medical care, and reinforced the face that our civil justice system is the only method a community has to enforce the standards of medical care. The jury returned a verdict in favor of our client for the full amount requested nearly $2.3 million.

Multiple Impact Collison McKenzie Highway

On a sunny summer day a 72 year old man was driving up the McKenzie Highway to do some fishing. He came to a stop behind a semi-truck which had stopped behind a car waiting to turn left.

The driver behind our client had looked away from the highway and was unable to stop, striking the rear of our client's small pickup. The force of the impact pushed his vehicle into the rear of the semi-truck, ricocheting him into the oncoming lane where he was struck by a van.

Our client sustained serious injuries, including extensive chest trauma, which left him in a coma for weeks. The defendant's insurer took the position that our client's pre-existing emphysema played a significant role in his recuperation and residuals. Through our medical research and the assistance of his treating physicians, we were successful in isolating his collision-caused injuries from his pre-existing condition. We ultimately settled the claim for $1.25 million.

Premises Liability -- Broken Hip

Our client was celebrating her 74th birthday at the Sizzler Restaurant in Grants Pass. As she entered the restaurant, she slipped on the wet floor, fell, and broke her hip. While lying on the floor she noticed a rug mat rolled up and stuck under a bench. With the help of Grants Pass attorney, Jim Dole, and a thorough investigation, we were able to overcome medical reports suggesting she had fainted before falling. Key was an interview with a responding EMT; he too had slipped as he went to assist our injured client. After settling the case, we negotiated reduction of liens for health care providers increasing our client's recovery by several thousand dollars.

Big Rig Maintenance Causes Accident

As our client drove north on I-5 near Roseburg, she was struck in the head by a southbound truck wheel which had broken off its axle and careened across four lanes of traffic and the median strip. Our client, a mother of three, suffered brain focal and spinal injury in the collision.

It was found that the wheel was poorly maintained, and due to stress and wear, eventually cracked from fastener to fastener, leaving the center plate of the wheel still bolted to the trailer axle after the wheel flew off. We retained several experts to assist in understanding how the wheel broke, including a metallurgist, an engineer, and a former Chevrolet fleet manager with expertise in big rig maintenance. We worked closely with referring counsel from Southern California to ensure that all of our client's complex medical problems were diagnosed. After depositions in Portland and Eugene, a four hour inspection of the subject truck by our experts, and an all-day mediation, we came to terms prior to trial.

Logging Accident

Our client, a truck driver for Ireland Broths in Douglas County, was killed on a logging site when a log rolled off of the load on his truck while he was wrapping it for the trip to the mill. We sued the logging company, alleging that the loader operator loading his truck was negligent.

We determined from photographs taken at the scene that several unsafe logging practices contributed to his death. Logs brought to the log loading area were stacked so close to trucks being loaded that drivers could not see the top logs on their trucks. The landing was also littered with logging debris, making it impossible for workers to escape from a falling log.

We worked with OSHA investigators, our client's employer, and logging experts to prove that the log that killed our client was not loaded properly, causing it to be unstable and fall off. In addition, the loader operator critically erred by not holding the load stable with his grapples while our client threw his wrappers to secure the load. After several settlement conferences and months of trial preparation, we successfully resolve the case shortly before trial.

Wrongful Death

A twenty-two year old man was fatally injured when his car was struck head-on by a diesel truck and semi-trailer. The truck crossed the centerline of State Highway 58 after the driver of the truck fell asleep. Once we were retained, we began investigation and found that the truck driver suffered congestive heart failure and that his illness was a contributing factor to the cause of the collision. Evidence was also obtained in discovery that the truck driver falsified his driver's log regarding the number of hours worked the day before the collision.

We filed a wrongful death claim on behalf of the decedent's mother, father, and stepmother against the truck driver and his employer. We sought damages for economic loss to the decedent's estate, his parents' loss of companionship and society, and his pain and suffering before death. The claim was settled for $850,000.

I-5 Chain Reaction Collision

Stephen Heringa, an attorney from Vancouver, B.C., referred the this family to us for preparation and representation at a federal court settlement conference. The family was traveling through Oregon when they were involved in a highway collision which killed two Swiss tourists and three other people. Although they were the second car in line, the parents sustained serious concussive and muscular injuries and their children sustained less serious injuries. In the mediation, which involved all claimants, the family settled their claims for more than $250,000.

Drunk Driver Injury

Our client required a hip replacement when she was broadsided by a drunk driver who drove through a red light on River Road in Eugene. After working up the liability aspects of the case, we moved the Court for permission to plead punitive damages against the drunk driver. The Court granted our motion, and shortly thereafter we settled the case for policy limits.

Marine Tourism Safety

While on a whale watching tour out of Newport, our client was thrown to the deck of the boat by a large wave and fractured her ankle. The injury occurred as the boat was crossing the bar at Yaquina Bay. Our client, who was from New York, had never been on an ocean guide boat, and had no idea of the risk of waves. In our investigation, we learned that waves over this bar can peak suddenly due to the size of the swell, wind direction and velocity, tide conditions, and ocean topography.

The primary issue in this case was whether the captain of the boat had taken appropriate steps to safeguard the passengers on the boat given the ocean conditions at the time. Especially serious was the fact that the boat was crossing the bar against the tide. We consulted with maritime experts regarding the duties of a ship captain and how to properly cross the bar with a boat full of tourists. We also consulted with a human factors expert before reaching a favorable settlement.

Bicycle Accidents

E-mail Facilitation Helps to Resolve Claim Across the Ocean

As a Professor visiting from Ireland rode his bicycle near the University of Oregon campus, a teenage drove her car into him, sending him airborne and fracturing both of his forearms and one wrist. The Professor obtained emergency medical treatment in Eugene, but the bulk of his medical care took place at home in Ireland. We worked with the Professor and his doctors via e-mail to prepare his case. We were able to settle the Professor's claim within a few months of the collision.

Obie Industries, Inc., Lee Construction Co., and Mike Dugan

Lane County Circuit Court

A young man in his 20s hit a small piece of construction debris left on a public walkway at the Fifth Street Public Market while riding his bicycle, rupturing his spleen. The case involved issues of premises liability, comparative fault, and the levels of responsibility between general and subcontractors. A favorable settlement was reached prior to trial.

Landslide Cases Settle Against Landowner

In our Winter 1997 issue of "Briefs," we reported being retained to handle several cases arising out of the November 1996 landslides in Douglas County. Particularly compelling was the case of four people who were killed when the clear-cut hillsides above them broke loose in a massive debris flow.

On a rainy November day in 1996, as three neighbors visited inside, the steep clear-cut slope above their home gave way. As it raced down the stream channel toward them, the slide bulked up with logging debris, soil, and boulders. Four people were engulfed as the torrent wiped the home off the hillside. Others were injured, including a newspaper deliveryman who was nearly buried.

Because we were retained just days after the landslide, we were able to document the scene both from the air and on foot. We assembled a team of field scientists to conduct field and lab tests to determine the exact nature of the landslide. The land had been logged almost 10 years earlier.

The lawsuits alleged both negligence and strict liability, applying the law as set forth in Koos v. Roth, 293 Or 670, 652 P2d 1255 (1982). In a key ruling, the trial court ruled that we could go forward on the strict liability count. Our trial preparation included a survey of scientific literature dating to 1950. It also included over 35 depositions and interviews of dozens of witnesses.

With a mediation scheduled, we produced a documentary video setting forth themes and evidence we would present at trial. After two all-day mediation sessions, followed by weeks of further negotiations, we resolved the claims for confidential amounts.

Referrals

We work with attorneys through the state who associate with us on personal injury, product liability, and negligence cases. Referral arrangements vary from case to case. Most commonly, we take the laboring oar and advance necessary costs to prosecute the claim.