The legal term “preemption” is one of those boring sounding words that makes eyes glaze over and starts the snoozefest. Seems like the Bush administration is counting on that reaction in its latest threat to consumer safety.

Preemption is a concept that provides that federal law can trump or overrule state standards when Congress passes a law and intends that its law displaces inconsistent  state law.  Like I said, it’s a yawner. But in this era of anything goes, hands-off deregulation, the ability to thwart state law claims means a lot to powerful corporate interests that don’t want to face juries.

And that’s how consumers get hurt.

The latest story is that now federal agencies are trying to grab power and extend preemption, claiming the right to do so. So when–for example–the FDA passes a rule that only federal standards regulate medical devices, the agency is grabbing power to claim preemption.  Here is a more detailed account of how it’s being done.

What a sad and cynical world. At some point you have to conclude that this is just about greed. If you want to deregulate the world, then you have to have a means of giving injured consumers the ability to obtain compensation for their harms and losses. Or alternatively, you could create a truly effective safety scheme. But this current administration wants none of it. No regulations. No way for injured consumers to cover their harms and losses. No answering to a jury in court.

There’s that popular, “Don’t worry; I’ve got your back.” It almost applies here, but you have to edit or tweak it just a tad to achieve accuracy. I worked on it some. Took some thought, actually. With a little re-working, it applies beautifully here. I’ve edited down to, “Worry.”

David Sugerman

Nice report in The Oregonian today about a nursing home verdict Looks to me like the jury felt strongly about dignity for our seniors.  I’m taken by the comments of the lawyer defending the nursing home that this was a surprise. Hard to fathom, as most of us have parents or grandparents who have been at the stage where late-life care is a major issue. And no one wants to see our loved ones treated so poorly.

David Sugerman

Thanks to Jen for sending this powerful piece explaining the need for seat belts. It’s probably the best I’ve seen or heard.

Jen posted it as a comment on an old post, so I wanted to add it here for those who only look at our current entries. Kudos as well to the Montana Department of Transportation for an excellent video. And to Jeremy’sfamily: maybe your horrible tragedy takes on some meaning if this gets wide distribution. Our thoughts are with you on this.

So here’s our small part from Oregon.

David Sugerman

Boy, here’s some righteous indignation for you. I just saw the new attack ad in the Oregon Attorney General race. Greg MacPherson chose to run ads attacking John Kroger’s lack of qualifications. I previously explained that it was an interesting choice in this race, and that both were qualified for the position. I also made it clear that I wouldn’t take a position on the race.

I was wrong.

Rep. MacPherson’s ad demonstrates a lack of judgment and candor that leads me to think he would be a poor choice for AG. His attack ad is misleading, in that it implies that John Kroger has no experience practicing law. The ad compares Kroger to a newly-licensed driver who wants to drive a bus and a newly-minted M.D. who wants to perform surgery. The reality is that Kroger has substantial trial experience as a criminal prosecutor. That includes taking on Enron.

I had a few rules going into this whole Davids’ Blog thing, and one of the main ones is that this blog wouldn’t become a platform for what Davids think about political issues. Most every rule comes with exceptions, and this one is, well, no exception.

I’m not reluctant to call out politicians who are out to stain or damage the justice system. I’ve done it with wanna-be presidents and sitting presidents and former Attorney Generals.

When I saw that commercial today, I spit out the gag. I think all of Oregon deserves an attorney general who won’t try to mislead the voters.

That would be John Kroger.

David Sugerman

Interesting write up today in The Oregonian about the civil trial in a case brought by former investors against formerly high flying financier, party activist, Republican gubernatorial candidate, Craig Berkman. This is another one of those cases where I just want to grab a big tub of popcorn, plop down in an easy chair and enjoy the show.

At the front end, Mr. Berkman apparently admits that he secretly took $3.8 million in investors’ money. Apparently, his lawyer plans to claim that the investors losses of $20 million came from market conditions, not the secret taking of cash.

I’m taken with several parts to this.  Most notably is the repeat of the realization from the Adidas verdict that no one rants about businesses suing businesses for large sums of money.  Same is true about investors, I guess. And I don’t really have a beef with that, but I have to wonder why a double standard applies when a profoundly injured person dares to sue for damages.

The Big O article closes with a specific description of Jordan Schnitzer’s experience. All of Portland knows the Schnitzer family–they are successful, high profile civic leaders who have given large sums of money to many Portland institutions. I assume that Mr. Schnitzer’s net worth is such that his million dollar loss has relatively little impact on his overall wealth. I don’t mean to sound petty–it’s more that you need a sense of perspective about these things. But of course, it’s an interesting part of the story.  And regardless of his wealth and status, Mr. Schnitzer has every right to press his proper claims forward.

The other interesting piece is that Bullivant Houser’s Steve English leads the team representing the investors. He’s an accomplished trial lawyer from a law firm that focuses mostly on business and defense of claims.  It’s a large law firm by Portland standards.

While I suppose it’s easy to write it all off as a big-firm lawyer representing some pissed off rich people against a wrongdoing rich guy, the lesson underneath is that we all need a civil justice system. We all need access to the courts. We all need to be able to hold wrondoers accountable. That should be true whether the case involves multi-millionaires fighting over who owes what to whom or whether the case involves a working person who suffered profound injury caused by a dangerous product.

David Sugerman

The Oregoinian’s Brent Hunsberger reports on this eye-catching honking huge trade infringement verdict handed down in U.S. District Court in Portland yesterday. Looks like the grand total–some $305 million–is a lot of cash for a dispute over whether Payless stores ripped off Adidas by selling knock-off products.

I’ve got no cause to question all this, except that business vs. business disputes leave me yawning and struggling to stay awake. But here’s what’s interesting. We’ve heard for years about how we’re overlawyered, how class actions take too much money from businesses for ripped off consumers, and how people recover too much money in lawsuits. A lot of the drumbeat comes from the Chamber of Commerce. Here’s a window on one of its slick mouthpieces–I mean affiliates–that gives a great snapshot of the Chamber of Commerce’s view of litigation.

So here’s the question that I can’t avoid asking: What’s the Chamber going to say about a verdict where a business recovers $300 million for a claim of trade infringement? What are the going to say over at overlawyered? How about the institute for legal reform? How about the American Tort Reform Association? I’ll be watching. Because I’m sure that they will trumpet this case of a business getting too much money from a jury. I imagine we’ll see screeds about frivolous lawsuits. And there will surely be concerns raised about how lawsuits like these are ruining society. And that it’s too much money. Oh yeah, and the lawyers are behind it all.

Don’t get me wrong. While trade infringement lawsuits don’t get me juiced, I can see the logic and the need. As Mr. Hunsberger’s report makes clear, companies like Adidas’ intellectual property represents the true value of the enterprise.  So they’re aggrieved, and they use our civil justice system to defend themselves. I get that.

But here’s the deal:  I have the sneaking suspicion that all the outrage about big verdicts is really nothing more than class warfare on the middle class. So as you can imagine, I’m grabbing one of those big things of popcorn and settling in for the show.  I can’t wait to hear what the Chamber of Commerce and its friends say about this one.

David Sugerman

So the mainstream press picked up on the fact that the Oregon Supreme Court has decided a major case against Philip Morris and one in its favor.  But the story that is republished on MSNBC includes a law professor’s odd view of irony.

Here’s the excerpt:

“Ben Zipursky, a Fordham University School of Law professor who specializes in product liability, said it was ironic the ruling [in favor of Philip Morris on the Lowe medical monitoring case] came from the same court that recently affirmed a nearly $80 million punitive damages award against tobacco giant Philip Morris after it was struck down by the U.S. Supreme Court.

“‘This is the very court that has most aggressively ruled against Philip Morris,’ Zipursky said.”

So what’s ironic?

I mean, as one of the trial lawyers on the losing side of Lowe v. Philip Morris, I can say that I disagree with the Court’s ruling. But irony? Nah, prof., you got the wrong. Taken together, the two cases demonstrate that Philip Morris–and everyone else–gets a fair shake in front of the Oregon Supreme Court.

When I’m In trial and my opponent objects to evidence, I thank the trial judge whether the judge rules in favor of me or my opponent.  I do the same thing when the trial judge rules on my objections.  An opponent once accused me of thanking the court when I lost so that I would confuse the jury about whether I was winning or losing. I was amused that anyone thought I was that clever. But the reality is that through the response, “Thank you, Your Honor,” we acknowledge–win or lose–that judges maintain authority.  In that spirit, I would say that the Court in Lowe ruled in favor of Philip Morris and the rest of the industry. Regardless of what any law professor thinks, there wasn’t a shred of irony involved.

David Sugerman

The news report appeared during the week. My friend and colleague, Ed Johnson, did a helluva job representing a homeless woman in her excessive force claims against members of the Gresham police force.  Here’s what seems to be a less-than-accurate account of what happened.

I rarely go out of my way to call into question news reports of trials, but the story left me with the impression that the police were the victims.  We know from the result that the story is wrong, as there are two independent checks the injured person must clear to win against the police.

In federal court, juries deciding civil lawsuits must be unanimous. The jury unanimously found in favor of Mary MacQuire, the woman tasered and beaten, and even found that her harms and losses required more money than she had requested.

But there is another check as well.  The federal judge who tried the case, Judge Michael Mosman, is not inexperienced in police cases. Before his appointment to the bench, Judge Mosman served as the U.S. Attorney, the person in charge of federal criminal prosecutions in Oregon.  So he came to the bench with a lot of experience with the police. As the judge presiding over the case, Judge Mosman only submits a case to the jury if there is sufficient evidence of wrongdoing. He listened to the evidence and submitted the case to the jury.

I had a chance to talk to Ed Johnson both before and after the trial. He’s a great guy who works for the Oregon Law Center, representing people of modest means. The case he described to me wasn’t the same one I read about in the paper. But regardless of the reporting problem, police cases are hard. Juries typically give police a lot of leeway because they recognize the difficulties of their jobs. In my experience, most Oregon juries believe the police. Of course, Oregonians tend to be pretty level headed, such that when they hear credible evidence of a problem they do what is right to assess fault and address harms and losses.

When I spoke to him before the trial, Ed was clear-eyed about the difficulties a homeless woman faces in claiming that the police used excessive force. He was quietly committed to his case. After the trial, he was spent, as most of us are after a hard-fought case. He was also pleased with the result.

Ed Johnson and Ms. MacQuire deserve our gratitude and praise. By taking the case to trial, Ed Johnson and Ms. MacQuire demonstrated that justice can be found in Oregon. The jury and judge deserve our praises as well, because a verdict in a case like this sends a message to those who fail to heed the rules that no one is above the law. Not even the police.

David Sugerman

Today, the Oregon Supreme Court held that Oregon smokers could not compel tobacco companies to fund medical tests that would help with early detection of smoking-related diseases. The case–Lowe v. Philip Morris–is important in a few ways.

First, by way of full disclosure, I was one of the lawyers representing Patricia Lowe, the smoker who sought to create a medical monitoring fund. While we did not win the case, I had the distinct pleasure and privilege of working on the case with my friends and colleagues, Bill Gaylord, Jim Coon, Chuck Tauman and Ray Thomas.

On a political level, the case is important because the Oregon Supreme Court demonstrated that sometimes–like in this case–Philip Morris wins in Oregon, and sometimes Philip Morris loses. That provides a powerful rebuttal to those who claim that Oregon courts are unfair to Philip Morris.

But the other thing is that the lawyers who pursued this case dared to advance the radical proposition that Oregon courts should provide a means of limiting harm and protecting those who are wrongfully endangered by dangerous products. For reasons that it articulated with clarity, the Oregon court declined to do adopt that proposition in this case. So be it. (That’s not a knock on the Court; rather, it’s an acknowledgment of its role, power and authority in our beloved state.)

Update 2 May 2008: Here’s the story reported in The Oregonian and on Oregonlive.com. Jim Coon, lead for smokers on the appeal, did his usual great job of explaining the case.

In the end, it comes to this–at least to my way of thinking:  Patricia Lowe, the smoker who bravely pursued this case, tried to do something that would make a difference by creating a program for medical screening that would limit the harm. Next time Philip Morris or its friends at the Chamber of Commerce complain about injury lawsuits, please remember this case. And then ask the complainers about their vision of alternatives, as they apparently don’t want to fund injury prevention.

David Sugerman

Most of us have no trouble seeing the divide between cars and bikes from both sides, as most of us are both cyclists and drivers. Sure, there are a few purists on both sides. And among the purists, there are even some nut cases.

I’ve used that label in the past freely, but now it looks like the question will get its day in court. Story today about the motorist charged with attempted homicide in Multnomah County. It seems that Johhny Eschweiler may have gone all mental in a road rage incident.  According to the news report, a near miss by the driver led the cyclist to confront the driver shortly after. Apparently, Mr. Eschweiler then tried to kill the cyclists.

At least, that’s the implication, because his attorney indicated that he will plead guilty except for insanity defense.  I’m no expert on criminal law, but I assume that means more than road rage.

It’s tough on the roads. Despite Pdx’s great rah-rah rep as a bike friendly place, cyclists are exposed in most parts of our beloved city. We’re at the mercy of behemouths out there.  And of course, those of us who drive have had to dodge cyclists doing amazingly stupid things, like the guy who blew through the stop sign in front of me yesterday on his bike, carrying bags, no helmet, maybe an i-pod…. Thanks for that scare, pal.

If you find this annoying because you’re on one side or the other, know that I sit on both sides. I ride, I drive, and I represent cyclists and drivers.  Still, road rage is a killer. Maybe the lesson here is that we can all stand to take a deep breath and try to share the road?

David Sugerman