For those following Gibson v. Providence, State of Oregon Court of Appeals, Case No. CA A137930, we’re scheduled to argue in front of the Court of Appeals next Thursday, April 2. The question is whether the trial court erroneously dismissed the proposed class action.

It’s been a long haul, and there is far to go. No one said this would be easy, but then that’s usually how it works. I’ll post an update on oral argument. Meantime, if you want to review a copy of the first brief that we filed for the patients, you can find it archived here. But you should only do so if you’re into the whole law geek thing.

David Sugerman

Add one more thing to the list of casualties of the economic meltdowns. Oregon Chief Justice Paul DeMuniz announced Friday that Oregon courts will go to part-time operations at least through June.  A reprint of the press release is here: oregon-judicial-department-closure-press-release-20091

It’s easy to shrug the shoulders and treat this as one of those things. That would be a mistake. When our court system can’t function full time, it must make choices of which cases get heard.

The closure will put off all manner of cases, including divorce and custody proceedings, landlord tenant problems, civil cases for consumers and employees, and business disputes. If things get worse, we can expect to see criminal cases get delayed or dismissed.  An underfunded and poorly functioning judicial system is one of those key indicators of the stability of a society. When funding prevents courts from operating, problems previously solved through the courts go unchecked. This is not a pretty thing when it goes on for a long time.

The problem is exacerbated by our recent initiative cycle.  Some readers may recall that in a race to the bottom, the Oregon Legislature proposed an initiative on mandatory prison sentences. The Legislature put its mandatory sentencing measure on the ballot as an alternative to the absolute stinker pushed by the profoundly irresponsible Kevin Mannix. While the Mannix measure was much, much worse, the voter-approved measure saddled our State, our prisons, our criminal justice system, and our judiciary with huge unfunded costs.  To be fair, this isn’t the cause of the current crisis, but it surely doesn’t help things.

Let’s hope that we get clear of this crisis quickly. For my part, I want to add my appreciation for the men and women who serve in the judicial department. They’re on the front lines of tough problems that no one else wants, and they’re being bled dry by our current woes. The closures will result in staff and pay reductions. Most are a tribute to civil service, as they work hard and don’t make a lot in return. They deserve our thanks for soldiering on in tough times.

David Sugerman

Today’s news brings this report on Comcast Oregon’s rate hike.  Kind of interesting that Comcast is raising cable rates amidst the economic meltdown that is now slamming Oregon.

At the same time, Comcast is facing a class action in Oregon over claims that it has illegally billed late fees to Oregon Comcast cable subscribers. Full disclosure: I am counsel for the class.

The most recent development in the Comcast Oregon late fee litigation is that Multnomah County Circuit Court Judge Baldwin indicated that he will certify a class. The parties are arguing about the form of the order, which is mostly an argument over the scope and size of the class. The parties are also arguing over whether the trial court should allow Comcast to seek another appeal.

The parties are scheduled for another hearing before Judge Baldwin on Friday, Feb. 27.  I imagine that sometime after the hearing, Judge Baldwin will sign an order that makes it all official, and we’ll know more about what the future holds on the Oregon illegal late fee case.

David Sugerman

Below is the link to a copy of the opinion in New York State Restaurant Association v. New York City Board of Health, decided today by the U.S. Court of Appeals for the Second Circuit. In the case, the Second Circuit upheld the denial of an injunction that would have stopped New York City’s calorie posting requirements from taking effect.

The opinion is long. I haven’t had a chance to read it yet. The issue is important to consumers, especially those who want to know what they are eating when they order at chain restaurants and fast food outlets.

ny-state-restaurant-assoc-v-nyc-bd-of-health-slip-op

My take is no doubt colored by middle age and my growing middle. But it seems to me that I ought to be able to learn about calorie counts, in order to make more healthful choices when I eat out. I would think that those who are critical of lawsuits against fast food outlets for selling unhealthful food would support these changes, also. The point is to give consumers information so that they can make wise choices.

Similar laws are slated to take effect here in Multnomah County, Oregon. So I’ll be watching this case with interest. I imagine the Oregon Restaurant Assocation will be, too.

David Sugerman

Catching up–because we are way behind–here’s the first of two overdue document updates. This link appellants-reply-brief-and-reply-excerpt-of-recort pulls up a copy of the patients’ reply brief in the Oregon Court of Appeals in the proposed class action against Providence for loss of medical records.

Here’s a link to the entry that will pull up the patients’ opening brief, as well.

David Sugerman

News today is that HB 2585 is pending in the Oregon legislature. It’s a technical bill that would have a big impact on consumers in class actions.

By way of full disclosure, I have been pushing for passage of the bill. Robert Stoll and his partner Scott Shorr and their firm have been doing the real heavy lifting. They get the credit here for trying to re-write an anti-consumer provision. More disclosure: as I represent consumers, a pro-consumer bill would be good for the people I represent.

The bill would make a simple change to the Oregon Rules of Civil Procedure. Right now, those rules prevent consumers who sue under the Unlawful Trade Practices Act from recovering statutory minimum damages in a class action in state court. If you sue for violation of the Unlawful Trade Practices Act as an individual, you can recover either $200 or your actual damages. The current rule bars members of a consumer class from recovering the $200.

The current law favors banks, Wall Street, and other large groups that chip away small amounts of money from many, many consumers. If a bank overcharges every consumer $10 and makes millions in the process, consumers who sue in a class action can only get the amount back that they lost, not the $200 per consumer.  HB 2585 would eliminate that and treat all consumers the same–whether they are pursuing claims individually or as part of a class action.

The Chamber of Commerce hates class actions. But they exist to stop large institutions from nickeling and diming consumers to death. A $10 late fee isn’t going to put any consumer into bankruptcy. But an illegal $10 late fee levied a million times makes the wrongdoer a lot of money.  Consumers win with this one because re-balancing the scales will put a stop to illegal fees and other forms of fraud.

David Sugerman

Word today is that SB 386, a bill pending in the Oregon Senate, deserves consumer support. It would go a long way to helping consumers fight abusive debt collection practices.  The bill is particularly important because it fixes a technical hole in Oregon Unfair Debt Collection Practice Act, an important consumer protection law.

Under the current version of Oregon’s Unfair Debt Collection Practice Act, a bill collector can sue a consumer on a bad or old debt without violating the Act. That means that an abusive bill collector can file lawsuits against consumers without much risk–even if they know that the collection lawsuit has no merit. That’s a bad thing, of course, as collectors shouldn’t use the courts to abuse consumers.

SB 386 would change that. It’s a small but important fix.

David Sugerman

What starts out as a blah-blah Wall Street Journal editorial supporting Illinois’ damages caps on medical error cases, turns ugly.

Look at what’s underneath, as the editors at the Journal are fairly frank about their goals:

“We’d prefer a ‘loser pays’ rule as in the British system. But without such a deterrent to frivolous suits, limiting damage awards is the only way to stop jackpot judgments that drive doctors away and hurt the quality of medical care.”

It’s a nasty bit of rhetoric for several reasons. First, there’s the urban myth of doctors driven away. There are no names, and there is no data. It’s just the bald “fact” that this happens. But the more unfortunate and intellectually dishonest piece is the “jackpot justice” rhetoric. The Journal editors know that they’re being disingenuous as a number of high-profile studies confirm that the system works fairly well, with one important flaw. Here’s a widely-publicized study from the New England Journal of Medicine on the topic of medical errors and litigation. Here’s another slightly-dated summary from AARP.

Here’s the bottom line from the New England Journal article: “Claims that lack evidence of error are not uncommon, but most are denied compensation. The vast majority of expenditures go toward litigation over errors and payment of them. The overhead costs of malpractice litigation are exorbitant.”

That overhead cost thing at the end is also important. What the Wall Street Journal wants to do is make litigation more expensive by importing from England the loser pays rule. What that means is that lawyers on both sides get paid by the loser.

Under the current system, most patients’ cases are handled on a contingent fee basis. That means that the lawyers get paid if and only if we make a recovery for the injured patient. That system does several things. First, it keeps open the courthouse to meritorious claims, regardless of the wealth of the patient. The patient that wins pays his or her lawyer based on a percentage of the recovery.

Under the contingent fee system, lawyers who represent patients simply can’t afford to take losing cases because when they lose, they don’t get paid.  As well, middle-income patients are able to locate and hire top-flight legal talent because they don’t have to pay by the hour for the lawyer’s work.

But the second thing is that I imagine that loser pays will drive up the costs to both sides. While I don’t have any data, the costs are apt to increase because both sides have an incentive to do more work and stick the loser with the bill.

Underneath, the Wall Street Journal wants us to believe that juries can’t be trusted, and our founders were wrong to set up a jury system. The Wall Street Journal apparently believes that legislatures that pass one-size-fits all rules are better suited than juries to determine case outcomes. [Snark alert:] I’m sure this has nothing to do with the fact that lobbyists roam through the various hearing rooms and halls of various legislatures but are barred from jury rooms.

In the end the editors of the Wall Street Journal sipmly ignore the reality of injured patients. I have to assume that they simply close their eyes because no one should be so jaundiced in the face of profound injury.

David Sugerman

Tough times lead consumers to cutting out the luxuries. Tougher times mean that we all start looking at cutting necessities in order to get by. I imagine that some consumers will look at lowering insurance costs by going bare or reducing auto coverage. Here are some things that Oregon consumers need to know about cutting auto coverage.

1. It’s a Class B offense to drive uninsured: Pretty simple. The act of driving without insurance is a traffic offense. ORS 806.010.

2. If you’re in a traffic accident and you’re uninsured, you’re subject to drivers license suspension for a year.

3. In a heaping-it-on-the-poor move, the Oregon Legislature made it clear that if you’re uninsured and you’re in an auto accident, you can’t recover non-ecomic damages. That’s true regardless of whether you were at fault.  ORS 31.715

4. Excess coverage is usually much cheaper than the first level of insurance. So your insurance dollars actually go a long way when you are buying coverage over the minimum.

In tough times, it can be hard to make the best decisions. Driving uninsured is really unwise. One way to think about it is that insurance–like gas, car payments, and maintenance–are part of the true cost of driving.  So if you’re looking at cost cutting, unless you’re getting rid of the car, don’t cut the insurance.

David Sugerman

The rush to the bottom isn’t quite over yet, as the Bush administration seems intent on passing last minute regulations to harm consumers and help big business. The range is breathtaking. It includes loosening worker safety rules, clean water standards and–here’s today’s dose of irony–easing regulations on securities.

Before the financial crash and deepening recession, it would have been easy to write this off as misguided zealots pushing through the final touches on the deregulation agenda. But after the collapse it’s just plain greed, jet-fueled by a dangerous mix of urgency and stupidity.

David Sugerman