There’s that commercial with the earnest, wise and sentorian guy talking about all the great things they do, ending with the intonation, “That’s Allstate’s stand.”  A new American Association of Justice study noted here names Allstate the worst insurer.

Interestingly, Allstate’s CEO’s 2007 compensation topped $10 million for the year.  That’s a lot of premium money. More to the point, it’s fair to say that Allstate has some…uh…history of being naughty.

My own experience is that some insurers are worse than others. While not all are bad news, many give injured consumers and policyholders the runaround when people make claims for their harms and losses. It’s common to hear someone in my office express surprise when Allstate or one of the other carriers fails to make good on its end of the insurance contract by, for example, failing to pay medical expenses incurred by the injured policyholder.

That’s particularly outrageous because the policyholder did what they were supposed to when they paid for the coverage. And then they get stiffed or hard-timed by Allstate. This is what we in the trenches refer to as, “Allstate’s stand.”

David Sugerman

Here’s some good news in what is something of a sleeper. Measure 51, a one-sided and unnecessary ballot measure that would limit consumers rights failed to qualify for the November ballot.  The measure would have limited attorney fees to 10 percent in most contingent fee cases.

Contingent fees are those paid as a percentage of what a lawyer recovers for an injured person.  They are an equalizer. While the wealthy and big businesses can afford to pay lawyers by the hour, the rest of us don’t have the means to do so. The contingent fee system levels the playing field, allowing middle income Oregonians and small businesses the ability to hire skilled lawyers who will work for a percentage of what they obtain for the client.

The measure limited only contingent fees; it didn’t limit what those who afford to pay by the hour could pay. Had it passed, the measure would have limited consumers’ access to the best legal talent by artificially limiting fees.

My son–a somewhat sardonic 18 year old–saw through it immediately. “Wouldn’t limiting fees actually encourage lawyers to file more frivolous lawsuits?” (He’s  smarter than his dad; I never thought of that…thanks kiddo, you’re doing the old gray fart proud.)

Here’s the thing. At bottom the one-sided measure would favor insurance companies, HMOs, and manufacturers of dangerous products. They don’t want consumers to have access to the courts. They know that the best way to close the courthouse doors is to make sure that injured consumers can’t afford to hire lawyers. This, by the way, is part of the Bush/Cheney/Rove agenda. And as with many other things they failed.

Thankfully, Oregon consumers knew better. We’ve come to realize that the initiative process is one that is used by special interests to advance a radical agenda. It’s getting harder to qualify measures, and Oregonians are getting more skeptical about the unintended consequences of poorly drafted initiatives.

That’s great news.

David Sugerman

Here’s a half-decent summary of how mandatory arbitration clauses strip away patients and families’ ability to hold bad nursing homes accountable for abusive care. It’s only half right, though, as the writer misses the most significant problem with mandatory arbitration clauses.

Too often, they come with rules that make pursuit of any claim impossible. As well, they often play into a rigged system by forcing arbitration with an organization that is notorious for finding against consumers.

When our parents and grandparents are subjected to abusive care in a nursing home, there needs to be a fair and open system that allows the family to hold the bad nursing home accountable. But when a mandatory arbitration clause prohibits going to court, when it bars claims under laws that provide for damages and attorney fees, and when it requires secrecy, families lose.

It’s even worse in the nursing home context because too often the family member who is placed in the care facility didn’t even have the ability to make an informed choice. What’s more, the family is often presented a thick stack of forms to sign that are take-it-or-leave-it deals. In other words, it’s a farce to say that grandpa chose arbitration.

Congress is starting to look at this. Let’s hope they take real action.

David Sugerman

Here’s a nice summary of an important trial result in Portland.  Lois Whitmore, a healthy and active 78-year old Wal-Mart shopper suffered life-changing injuries when a Wal-Mart fixture fell and broke her foot.  Before the injuries, Ms. Whitmore walked several miles a day, and after each step caused her pain.

Kudos to my friend and colleague, Greg Kafoury, for leading the way. Apparently the unanimous jury assessed her harms and losses to the dime requested by her attorneys, as they reportedly granted her every dollar that she sought.

Kafoury has a special way with cases against retailers. He’s had some marvelous results against Fred Meyer stores in the past.

The rule that Wal-Mart violated is a simple one. Retail businesses go to great lengths to get shoppers in the door. The rules require that retailers provide for the safety of shoppers. It’s a simple and sensible rule. If they’re going to invite you in to spend your money, they have to be responsible for the condition of the store.

Wal-Mart apparently violated the simple rule of retail. But according to the news report, they went one step further. Wal-Mart employees apparently testified under oath that Ms. Whitmore was sitting on an electric scooter shortly after they learned she was injured. They claimed that she had bumped over the display and caused her own injury.

But here’s the problem. Not a word of that appeared in their incident report, and instead that report–which would have been written at or near the time of the injury–reportedly said that she was sitting on a bench near the display, not on a scooter.

Seems like this is one of those trials that could have been avoided had Wal-Mart simply taken responsibility for their customer’s harms and losses. Guess they needed to hear it from the jury.

David Sugerman

The recent FDA announcement of the tomato salmonella outbreak leads me to wonder about how we got here. Announcements like this give the media great material to play with the fear process. I call it the “don’t eat that,” or scare-of-the-moment journalism. The danger is real, of course, as salmonella can pose a serious health hazard for children, elderly, and people with compromised immune systems.

The real problem is a lax food safety system. This is not something that’s simply limited to tomatoes.  The reality is that deregulation–the heralded salvation and light of the American economy–has a very nasty underside.

Food safety is one of those classic government functions. If we want a safe food system, we have to pay for it and know that sometimes regulations are a pain in the neck. Oh, and it costs money, as in higher taxes.  Of course, that pain in the neck is part of how we protect our toddlers and aging parents who can be felled by a manufacturer’s failure to maintain food safety standards.

The alternatives give us two things. One is this scare-of-the-moment journalism. Annoying. But here’s the bigger one. The other consequence of deregulation is that people like me–trial lawyers–have more and more work.  My job starts when injured people call about calamities that have befallen them.  I am like “All the Kings’ horses and all the Kings men” as I go about trying to re-assemble lives and families broken by unsafe practices.

Our food supply system needs to be regulated properly, and we need to dedicate the resources to it so that regular inspections and enforcement processes prevent these outbreaks.

David Sugerman

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 culture thingy–not really a saying, so much as a signifier, “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

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

For any of us who have had to place a child in daycare, there’s that haunting fear in the background about whether our children will be safe. Unfortunately, it’s easy for unregistered childcare providers to operate in Oregon. Under the applicable rules, small operators do not need to be licensed. But even those care centers that should have a license can apparently operate without getting licensed.

This is one more example of the frightening effects of deregulation. We’re told that regulation is bad and that taxes and government services are worse. And so there is no one watching to make sure that daycare providers comply with the law. While it might seem like apples and oranges, I can’t help but think about the link between this sad story and the FAA inspectors who faced retaliation for blowing the whistle on safety problems at Southwest Airlines.

I suppose that if I were looking after my own self-interest, I would welcome this era in silence. After all, I’m the guy that gets the call to represent the profoundly injured child or the whistle-blowing airline employee. So deregulation, which means more injuries, is good for the trial lawyers. Ain’t that a great irony?

David Sugerman

{Edited 4/1208}

Another news report on medical errors explains that the deadliest are those in which the provider fails to perceive that a hospitalized patient is developing problems and fails to intervene before things go from bad to deadly.

The jargon used is “failure to rescue” but I don’t think that label is accurate or helpful. Failure to rescue implies that a medical provider is actively sitting and refusing to do anything, knowing that a patient is in peril. The described problem is that the provider fails to perceive that problems are imminent and fails to intervene to stop the slide.

The study apparently logs 1.12 million safety problems out of some 40 million hospitalizations studied. The study found more than 238,000 preventable deaths over a three year period.

My gut tells me that in this era of rationed care and health care for profit, bottom line considerations lead to understaffed patient care. Rushed or overwhelmed medical providers have less time for patient care. Less time means less opportunity to observe the patient and notice changes or developing problems.

As a trial lawyer, you analyze these issues in terms of what a reasonably attentive medical provider should do and what a reasonable facility should provide by way of staffing. That includes having sufficient staff that allows the provider time to get a history, examine the patient, review the charts and note the problems.  Anything else promotes care that leaves patient survival to chance.

David Sugerman