Corrected 26 Jan 2009:

It’s so hard to read this story of grief involving an Oregon family. A sand rail collision on the Oregon dunes decimated David Leach and his fiance’s family.  According to the news report, David Rieman, the other driver, may have been drinking.

The obvious thing is that alcohol and dune riding don’t mix. I suppose it’s maybe too tempting. It’s beautiful out there on the Oregon dunes, and if you’re out on a warm day, it’s hard not to knock back a few beers. But anyone who has been out there can tell you that the beautiful dunes are also dangerous as all get-out.

Apart from alcohol, the Dunes are beautiful, but they demand caution and attention. Terrain shifts, and some of the off-roaders drive like bats out of the hot place below. You often can’t see what’s coming over the crest of this dune or the next. It’s no place for anyone impaired.

This isn’t mean to heap blame or find fault. To the families involved, there’s nothing ahead but profound pain. But for the rest of us who love to frolic in the dunes, maybe this tragedy provides a moment to reflect and to renew the commitment to separate alcohol from off-roading.  Maybe, also, it’s a teachable moment for others who aren’t operating safe vehicles out there.

David Sugerman

This piece–including graphic pictures of burn victims–addresses the nightmare scenario of waking from surgery to find yourself in a burn unit with profound lifetime injuries.  Apparently, flash fires in surgery are more common than previously believed.

The problem illustrates the need for open courts in cases involving medical errors. If you have any doubt about the need for a healthy civil justice system, look at the faces of patients who suffered severe burns while undergoing surgery.

It’s only minor comfort to learn that it’s a rare catastrophe. But it also looks like fires in surgery can be prevented by controlling tools that spark the fire or adjusting the environment.  I wonder if this one is also on the list of “never errors” that our friends in the medical profession use in reviewing injury problems.

David Sugerman

So I was never a huge Who fan, but they had a way of crafting a phrase or a riff that invariably resonated far beyond the tune. The rauccous revolutionary anthem ends the refrain with this staunch declaration, “We don’t get fooled again!” That line sprang to mind as I learned more about the proposed Bush administration bailout of Wall Street.

It’s a short proposal. Text is here, courtesy of the New York Times.  Buried in the middle is this short ditty in Section 8: “Decisions by the Secretary pursuant to the authority of this Act are non-reviewable and committed to agency discretion, and may not be reviewed by any court of law or any administrative agency.”

Seems to me that the very same Secretary who steered the boat into the current ice berg is a poor choice for being the guy who makes “non-reviewable” decisions.  The current administration says we’re in a crisis, but doesn’t want to provide relief to mortgage holders. They claim that immediate and bold action is necessary, but they aren’t willing to consider limits on CEO compensation. And they want no one to question their decisions?

This is the same administration that got us into this mess. It’s the same administration that sent us off to an ill-considered war based on juiced up intelligence. It’s the same one that has presided over the destruction of the Bill of Rights.  The one that corrupted the Department of Justice. They have demonstrated time and again contempt for the rule of law. No wonder they propose no review by Congress or the courts.

With a track record like that, they want no oversight as they spend $700 billion of our money?

The Who had it right. No way.

David Sugerman

Saw this report over the weekend about the newly filed wrongful death case on behalf of one of the families that lost a son in the recent helicopter crash.  As I often observe–and by way of caveat–news reporters sometimes get reports about lawsuits wrong, and I offer that at the front end.  Even so, I’m a bit taken by a major difference between Oregon and California lawyers.

In Oregon, we don’t file cases simply to find out if someone made a mistake. Our courts require Oregon parties and lawyers to have a basis for the lawsuit.  In other words, the family and its lawyer need to have a good faith basis for claiming that someone did something wrong before filing the lawsuit. To be sure, you wind up learning a lot through the process of a lawsuit, but it’s not supposed to be a process of suing without knowledge.

Having said that, my heart goes out to the family. Most of us who are parents have some inkling of the profound heartache that comes of losing a child.

I suppose it easy to be critical of this tragically wounded family. But at bottom, they only dare to want to call someone to account for wrongfully killing their child.   In that respect, the scorn being heaped upon them seems to me to be callous and mean.  To be sure, most Oregon lawyers would have acted differently. But if it were my case and I found fault, I would surely advise the family of their options.

Some of the scorn seems particularly harsh to my ear because of the current financial crisis. But that’s just me talking, I guess.

David Sugerman

Justice Rehnquist–not one of my favorites of the Supremes–once observed in an important U.S. Supreme Court opinion that you, “have to take the bitter with the sweet.” I’m reminded of those words as we’re treated to the sight of former free-marketeers engineering profoundly expensive bailouts.  We’re told that taxpayers have to foot the bill to bailout Wall Street to the tune of hundreds of–pinky to the side of the mouth a la Dr. Evil here–billions of dollars.

We “have to” because we can’t afford to let Wall Street fail. That’s the official story.

Okay gang, here’s the deal. Let us be clear that if you’re using our hundreds of billions to bail out the greedy who were gorging at the trough, they’re going to have to take some serious bitterness with their sweets.

Let’s start with regulation. First, let’s resolve from this day forward that every twit who holds forth about the problems caused by regulation, the beauty of the free market, and the need for less regulation gets this loud retort: “Oink!”

“Oink!” As in, the pigs have been feeding at the trough for years and all we got was this hundreds of billions in payments to bail them out.

Second, any bailout sure as heck better give us the profits when the recipients get back to profitability. Because you better take some serious bitter with the sweet that you’re taking from our pockets. And there is nothing so bitter to you as sharing your profits. Put another way, if we’re going to have corporate socialism when you fail, we’re going to have it when you succeed. You’re paying us back.

And finally, let’s be repaying some of those big hordes of cash that led to happy landings for executives who were piloting these ventures. That golden parachute and fat, fat compensation at Bear Stearns, at Lehman, and at all those sinking ships to come contributed to this mess. If we’re bailing you out, it’s time to cough it up. Give us back our money.

David Sugerman

In opening the beloved Tale of Two Cities, Dickens observed, “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness….” He could have been talking about Oregon Health & Sciences University.  Here’s a glimpse of foolishness. OHSU’s  bonus program is alive and well, with payments to top executives of bonuses totaling some $1.7 million this year. That’s on top of the high six-figure salaries, and the valuable perks. And it’s happening amidst staff layoffs and clinic closings.

So what’s wrong with this picture? OHSU claims to be a publc corporation and claims to put the interests of Oregonians ahead of profit.  A few articulate Oregonians make a case otherwise, here.

The bigger piece is that OHSU is in the hole due to overbuilding and overspending. OHSU cried wolf recently when the Oregon Supreme Court ruled that the cap on damages could not be enforced in Jordaan Clark’s case.  OHSU went to an austerity budget, laying off hundreds and closing clinics. But the bonuses still flowed.

So here’s the score. OHSU causes profound injury to Jordaan Clark. When push comes to shove, the Oregon Supreme Court tells OHSU that it cannot rely on a horribly inadequate cap and that it will have to answer to the profoundly injured child. OHSU blames the child for its financial crisis but overlooks its own profligate spending in the South Waterfront debacle, the designer tram, and the losses of research dollars.  OHSU lays off care givers and closes clinics, laying the blame at the high cost of insurance.

Against this backdrop, we’re rewarding these people with bonuses. You’ve got to be kidding me.

David Sugerman

Countrywide is back in the news, and–shockalert–it’s not good news. Apparently, the company notified some 19,000 mortgage customers that their personal financial data has been compromised. At the same time, authorities has reportedly arrested a former Countrywide employee who took personal information on mortgage holders and sold it to data thieves.

The sad part for consumers is that many courts refuse to find an injury when a financial record data theft occurs. Instead, many courts conclude that you don’t have a claim until you suffer direct financial loss after the fact. And to heap it on, many of the same courts conclude that the damages a consumer may recover in financial record data thefts are limited to out-of-pocket losses. In other words, you don’t get compensated for the harms and losses that you’ve suffered, including inconvenience, fear of future harm and the like.

Some states are better than others, and local statutes may provide more protection to consumers. Even so, it’s pretty amazing how little protection most consumers have in these cases.  I suppose that stripping consumers of claims is simply one more feature of this horrendous corporate coddling that goes on today. But I guess that’s a rant about a reign of error that is for another day.

David Sugerman

One of the big fire-up issues at the recent Republican convention was the whole off-shore drilling push. I kept hearing these chants and seeing signs, “Drill here, drill now!” The chanting in St. Paul seemed a bit inane to me. While I’m not much on the nuances of geology, I’m pretty sure that the Twin Cities would be a poor bet for placing a well.  But you never know when you roll the dice drilling for oil, I guess.

Looks like Big Oil’s push operated on all fronts, so to speak, with these revelations from the U.S. Department of Interior that its oil and gas lease collections people were literally in bed with Big Oil. In bed, doing cocaine and lining the pockets of the regulators.  Seems like the whole drill here, drill now thing is another Big Oil ruse. Or maybe it’s more that Big Oil, as Ricky Ricardo famously said, simply has “got some ’splainin’ to do.”

David Sugerman

For those interested in the Comcast late fee litigation here in Oregon, a quick update. After winning the preliminary battle in the trial court and Court of Appeals, we returned to the trial court for discovery on class action certification. (I’m compressing several years into a few lines here.)

Backstory: In the case, plaintiffs–Comcast customers–claim that Comcast illegally billed late fees. They want to pursue the case as a class action and obtain refunds of illegally billed late fees, plus interest and attorney fees. For what it’s worth, Comcast denies that it did anything wrong and is arguing that the case is not appropriate for class action treatment.

The parties briefed the question of whether the court should certify a class action and recently, I appeared in court to argue plaintiffs’ motion to certify the class action. Multnomah County Circuit Court Judge Baldwin heard argument for an hour and a half. He had a number of questions. After the hearing, he sent a letter to the attorneys asking for additional briefing and scheduling further argument. We’ll be back in front of Judge Baldwin for more argument in early December after we complete the next round of briefing.

For those who keep score, Tim Quenelle, my co-counsel, and I filed the case in 2004. The fight over the arbitration clause took two-plus years, and it looks like the class certification proceedings will run about the same length.  No one said it would be easy. But of course, we’re not giving up.

David Sugerman

Nothing about law in this post; rather, it’s a farewell to an Oregon treasure and an Oregon adventure. Probably total coincidence that both Orblogs and the Portland Jazz Festival announced within days of each other that they were hanging it up.

OrBlogs was a total treasure or, more accuartely, labor of love. It was the best place to go to read blogs from all parts of the geographic and political spectrum in Oregon. I imagine I’m not the only one feeling a sense of loss at its recent annoucment that it has hung up the closing sign.

The other sad note is the death of PDX Jazz, the Portland Jazz Festival. It attracted top-flight talent and enriched the city. Anyone who went can tell stories about great shows. For jazz fans, it carried the promise–often fulfilled–of the possibility of magic.  It grew to mythic proportions for me because two of my oldest and dearest guy friends regularly used the festival as an excuse to invade the city.  I suppose on the upside, the city is a bit safer because local citizenry won’t have to view the arguably scary sight of three middle-aged guys wandering through the February rain in search of exuberant laughter. But still.

Someone smarter than me–Heraclitus, I think–said that the nature of the universe is change.  (Since I don’t speak Greek, I’ve always taken it on faith that he really said that….) I guess that’s proved again. So onward to the next treasures and adventures.

David Sugerman