Opening Remarks
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Child Car Restraint: Product Liability
Nothing is more important to us than the health and safety of our children. Trauma is the number one health threat to our children, and automobile collisions are the most frequent causes of life-threatening trauma. To protect young children, the Legislature has required that they be placed in special car safety devices. But how safe are those devices?
It is a question no parent ever wants to test. For one family, the while they were driving over a Cascade mountain pass. On that spring day, a three-year old girl was restrained in a "booster" seat type of child restraint. An oncoming car lost control in the volcanic grit left by the highway crews, crossed the centerline, and struck the family car nearly head-on.
The father, who was driving, was shaken badly but suffered no permanent physical injuries. The mother, in the front passenger seat suffered some injuries, which healed reasonably well. The little girl, strapped in the booster seat in the back, suffered an injury of the spinal cord near the top of her neck, which caused her to be quadriplegic. She is permanently paralyzed below the head, and requires the assistance of a ventilator in order to breathe.
Unlike most car seats, the booster style car seat lacks straps or other means of restraining the child's upper body. In a collision, a child's head can be thrown forward forcefully, while her lower body is fully or partially restrained. The effect is to tend to pull or snap the spinal cord just below the base of the head.
The product liability claim we brought against the child car seat manufacturer, Cosco, and two retailers was vigorously defended. Working together with another law firm, we brought an international team of experts together; with experts in reconstruction, biomechanics, occupant kinematics, pediatric neurology, restraint systems, life care planning, economics, and other fields. Their work showed that the booster seat design lacking upper body restraint was less safe than alternative designs, and was a substantial factor in causing the spinal cord injury.
During discovery, we learned that in the United States the manufacturer marketed the booster seat for children weighing as little as 30 pounds, but in other countries the seat was marketed only for children weighing 40 pounds or more. Older children have better developed muscles that can help prevent this kind of injury. When asked why the product was marketed for such small children in our country, the manufacturer could offer no technical or safety justification, only the desires of its marketing department.
The adverse driver settled for her liability insurance policy limits. The product liability claim was resolved after mediation.
Fatal Construction Accident
On August 14, 1997, an apprentice sheet metal worker, was killed during the construction of a large commercial building when he fell through an 8' x 40 " hole cut in the building's concrete slab roof, 35 feet above ground. Over the hole was a 4' x 8' sheet of plywood, but the plywood was not marked as a hole cover, and there were no warnings of the hazard. There were no witnesses, but the evidence suggests that the young man fell to his death when he attempted to pick up the sheet of plywood, not knowing it covered a hole in the roof.
At the time of the accident, the worker was employed by a sheet metal subcontractor working on the construction building, and a workers compensation claim was filed and accepted. On behalf of the surviving spouse and children, we filed a third-party claim against the general contractor and another subcontractor on the job, alleging claims for common law negligence and under the Employer Liability Act. The third-party claims were resolved pursuant to a confidential settlement agreement.
Shattered Graphite Arrow
While target shooting with his compound bow, our client, an experienced blow hunter, suffered permanent injury when a Gold Tip arrow exploded upon release. Hundreds of sharp graphite shards pierced his hand, cutting muscle tissue and severing nerves. Our client had purchased the arrow because of national advertisements claiming the arrow's internal construction eliminated splintering. Our experts determined that the internal construction of the failed arrow was not at all like the arrows in the advertisements. After extensive discovery, we learned that none of the arrows sold by this company had the anti-splintering construction represented in the advertisements. The case was filed in U.S. District Court and settled for a confidential amount.
Pharmaceutical Manufacturer Liability
A forty-five year old woman with no history of heart disease died unexpectedly of cardiac arrhythmia. Her physician had prescribed a combination of medications for her. The Medical Examiner determined that the cause of her death was a toxic buildup of one of those medications, an antihistamine. The case was mediated through federal court. On behalf of the surviving husband, child, and mother, we negotiated a settlement with the drug manufacturer. Part of that settlement was a strict confidentiality agreement which prevents us from sharing any additional information.
Two Underinsured Motorist Trials Against State Farm
Injured people are often surprised when their own insurance companies, instead of being good neighbors, turn out to be powerful adversaries driven by business interests. Both of these trials involved people with significant injuries, and in both cases their underinsured motorist insurance carrier refused to offer any compensation for the losses. One insured person suffered pelvic fractures requiring surgery. The other insured person suffered a low back injury requiring surgery. In the first trial, damages were assessed in the amount of $162,898.54. In the second trial, damages were assessed at $104,836.16. In each case, the insurance company was also required to pay our attorney fees.
Nursing Home Negligence
A Certified Nursing Assistant at Twilight Acres Nursing Home was arrested in October of 1998. He was charged with assault and criminal misconduct perpetrated against residents of that facility. Following his arrest we were contacted by the families of four of his victims and we filed suit against the nursing home on their behalf.
Since that time we have been preparing those cases for trial. Recently three of the four settled. To achieve these settlements we worked closely with the Oregon State Police who did the initial investigation, Senior and Disabled Services, and a battery of experts on nursing and nursing home standards, and the effect of abuse on elderly and senile victims. We obtained a court order allowing us to examine SDSD's investigative files. With that information and the OSP investigation we contacted a network of potential witnesses to the abuse and the neglectful environment at Twilight Acres.
In depth analysis and preparation have been critical in these cases. The statutory and regulatory frameworks applicable to these facilities present great opportunities to assist victims. At the same time the emotional issues for the families involved present challenges well beyond courtroom forensics. We are pleased to have been able to help these families and look forward to doing more of this important work. It is crucial that we all hold the nursing home industry to the highest standards.
Wrongful Death
A clinical psychologist was on a bicycle ride for victims of childhood abuse. En route to the coast she stopped to help a fellow rider with a mechanical problem. Just at that moment a car going in the same direction crossed the yellow line, collided with her and caused her death. The psychologist was the sole breadwinner for her partner and three year old daughter. Because there was limited liability coverage we aggressively pursued a settlement with the defendant driver for his policy limit. We then worked with the insurer to place the bulk of the settlement monies in a long term structure. The tax advantages of a structure provide the surviving daughter with economic security during her college years and beyond, just as her mother would have wanted.
Emergency Doctrine Defense Overcome
We represented a physician who experienced a mild head injury and injuries to his non-dominant wrist and shoulder as a result of a motor vehicle collision. The defendant raised the emergency doctrine defense, claiming there was unexpected black ice and mechanical failure. Our client's medical bills were $11,000 and consisted of non-surgical evaluation and treatment. Although he missed little or no time from work, he was considering an earlier retirement. At mediation with Judge Rasmussen, the parties settled for a total of $180,000. In addition, we negotiated with the health insurer on its exclusion of coverage for future medical care. The insurer agreed to cover collision-related expenses after the first $5,000.
Compelled Medical Examinations
Both federal and state rules of procedure provide for compelled medical examinations of parties. This has spawned an industry, with profitable businesses providing medical opinions for a fee, typically for insurance companies and their lawyers. As the industry's own literature proclaims, "we do not believe there should be anything independent about an Independent Medical Evaluation." Years ago, Justice William O. Douglas foresaw the implications: if a party is turned over to "doctors and psychoanalysts to discover the cause of the mishap, the door will be open for grave miscarriages of justice."
Justice Douglas correctly noted that "a doctor for a fee can easily discover something wrong with any patient," and that such a doctor's report "may either overawe or confuse the jury and prevent a fair trial." Here in Oregon, numerous abuses of compelled medical examinations have been documented. Medical exam businesses boast that their reports, in theory prepared by doctors, are reviewed by claims adjusters and paralegals. As one company notes, "performing IMEs is an acquired skill which is not taught to physicians in medical school." Businesses provide special training to physicians to do exams and to write reports for use in litigation.
Our firm has been actively involved in trying to improve Oregon's rules of civil procedure on compelled medical exams. Don Corson authored an Oregon State Bar Bulletin article on the problem, and more recently presented the case to the Council on Court Procedures to allow routine recording of exams and an observer at exams. The Oregon Trial Lawyers Association (OTLA) has become the state's leading resource on compelled medical exams, called "DMEs" (for Defense Medical Exams) by most lawyers representing individuals. If you would like to compare notes on experiences with compelled medical exam issues, please give us a call.
Staff Notes
Scott C. Lucas has been with the firm since 1997. He practices in the litigation section, concentrating on motor vehicle, product liability, premises liability, and medical negligence cases. He earned his undergraduate degree in Quantitative Economics and Decision Sciences from the University of California, San Diego. After five years working as a financial analyst and group controller, Scott moved to Oregon to attend law school at the University of Oregon, where he was Articles Editor of the Journal of Environmental Law & Litigation. Scott enjoys outdoor recreation and spending time with his wife, son, and three dogs.
Jan Wilson started with the firm in 1999. With her background in engineering and her interest in environmental issues, she is looking forward to the challenge of helping to expand our environmental litigation practice. Following law school, Jan moved here from Michigan four years ago, and she keeps herself busy with her daughter, Nora, community activities, and her two horses.
James E. Beard was born in Colorado and grew up in Maryland. He fell in love with the Northwest on his way to Alaska in 1984. He graduated from the University of Oregon School of Law in 1997, and then clerked for the Hon. Theodore R. Kulongoski of the Oregon Supreme Court from 1997 to 1999, joining the firm in September of that year. Jim practices in several areas of personal injury litigation, including motor vehicle collisions, products liability, and professional negligence.
