Here’s the link to a report in The Oregonian posted on OregonLive about this week’s increase in filing fees in Oregon’s civil court system. Longer analysis here explaining the problem. The comments at OregonLive are a bit disconcerting, what with yammering about frivolous lawsuits and a 1989 Orange County case.
Last I checked, Orange County was in California, not Oregon. And 1989 was, like, 20 years ago. The case sounds suspiciously like a number of made-up cases from the 1980’s that turned out to be urban mythic. Not that it matters–that wasn’t the case here, and it isn’t the case now.
But the noise about frivolous lawsuits from 1989 in California misses the point.
The real problem is that ordinary Oregonians–people who pay their bills and keep their heads down–are going to be barred from the courthouse. It’s not just filing fees. The courts will now charge costs at stage of the case (motions, orders, appearances, arguments). The Oregonian article missed that part of the story. Unless we face up to funding services in our state, only the rich will enjoy basic rights like access to justice. You can’t afford it? No justice for you.
Nice write up online for the Willamette Week here about how liability insurance rates for Oregon physicians fell. The study from the State of Oregon Department of Consumer and Business Services dispels a major political myth.
While it’s hard to remember, Oregon voters rejected a cap on damages in medical malpractice cases several years ago. The initiative, Measure 35, was sold as necessary due to a crisis. Check out the linked power ponit to see how badly proponents of Measure 35 overstated their position.
Oregon voters saw through the rhetoric and chose the wise course. Today’s study simply confirms the wisdom of that choice.
It should be interesting to see whether this objective information stifles the recurring urge by some to put limits on damages. The absence of any crisis makes it pretty difficult to argue for caps on damages.
A new proposed law pending in the Oregon Legislature, HB 2726, would require chain restaurants to provide Oregon consumers with calorie and nutrition information on items on the menu. Onward Oregon is pushing the bill. As I’ve noted before, giving consumers calorie and nutrition information is a great idea.
Those who are critical of obesity fast-food lawsuits should be quick to hop on board. Legislative regulation is a great alternative to regulation by litigation. After all, if you give a consumers truthful and timely information about the food they are buying, they can’t claim that they were misled by the seller.
Some are critical of this approach. After all, we’re told, some warnings are ridiculous. True, a warning like, “Be careful, don’t hit your finger,” on the side of a hammer is goofy or worse. But when–due to its design–the same hammer can shatter into a thousand pieces and project metal splinters, you better believe that consumers should be informed.
If you’re interested in supporting HB 2726, go here and let your legislator know.
For those following the Providence Health System medical record data theft case, this is a summary of oral argument at the Oregon Court of Appeals last Friday. The three-judge panel, Judges Haselton, Armstrong, and Rosenblum were completely engaged and extremely well prepared.
There are several major legal issues. The first is whether Oregon law recognizes that patients may recover for emotional distress when a medical provider wrongfully fails to protect confidential patient information. Oregon has been pretty conservative in its approach to emotional distress damages. The Court of Appeals earlier cases have generally required either physical injury or a very short list of exceptions.
While I would love to see a change in the Court’s framework, it’s not necessary to resolve this case. The law recognizes what are called “special relationships,” and that includes the relationship between patients and their medical providers. So the gist of the argument was that in a special relationship case like this one, patients can recover non-economic damages when medical providers wrongfully fail to keep patient records confidential.
Sounds kind of like a no-brainer, I suppose, but the Court was definitely grappling with how the lines are to be drawn. These gray areas are perhaps more complicated for the Court because they have to decide this case but also think ahead to the implications of the ruling.
The other big legal issue arose under the Unlawful Trade Practices Act claim. The Court seemed to have no trouble understanding that patients who spent money to protect themselves suffered a recognizable loss for purposes of the Unlawful Trade Practices Act.
I have to say that the patients’ legal team felt like oral argument went well. But it’s important to not read too much into that. I’ve won cases where I felt good about oral argument and lost them, too. So it’s not necessarily the best predictor. My best guess is that we’ll hear from the Court with a decision before the end of the year.
When that day comes, it will not be the end. Instead, it will simply be another day in this long fight.
Of course we knew too much about it before it broke in the papers. David Paul’s case on behalf of the Collins twins against Oregon’s Department of Human Services is winding to a close. A detailed report here appeared in the Sunday Oregonian. David has done another masterful job of representing kids who fall off the radar.
The article details the worst kind of abuse and neglect. The foster parents claim that they did nothing wrong. Anyone who reads the article can only wonder how anyone could treat innocent kids this way.
David’s most important work here is shining a light on the abuse and the neglect. It would thrill us both silly if this is the last case of DHS neglect and foster parent abuse that Oregon ever sees.
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.
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.
Catching up some more…can one blogger ever go on vacation?! Here’s a neat piece from the Oregon Supreme Court on Bill Sizemore, racketeer. It’s a court opinion, so a lot of it is in legalese. But there are sections worth lifting from Justice Balmer’s opinion for the unanimous court:
“A jury found that defendants–a political action committee and a nonprofit corporation controlled by the same individuals–engaged with others in a pattern of racketeering activity, as defined in ORICO, by forging signatures to qualify two ballot measures for the 2000 general election and by filing false statements with the state from 1998 through 2000 concerning their expenditures and contributions. The jury also found that defendants’ illegal conduct injured plaintiffs–two labor organizations–that spent substantial amounts of money opposing the ballot measures. The jury determined that plaintiffs had suffered damages of approximately $840,000….”
The Court goes on to explain that a jury found that an enterprise that included Bill Sizemore engaged in racketeering. Mr. Sizemore–for those who don’t know–makes a living submitting poorly written and confusing initiatives to Oregon voters. Turns out he does this by way of fraud and forgery.
As the Court explained, Sizemore’s group, Oregon Taxpayers United and the rest of the defendants, did not, “challenge the jury’s findings that they did, in fact, forge sponsorship and petition signatures or that OTU-EF submitted false reports to the Attorney General regarding its charitable activities.” Instead, the defendants made a number of technical arguments that the Oregon Supreme Court rejected.
So maybe now Bill Sizemore, Racketeer, becomes the name rightfully attached to all these horrible-idea initiatives. For years, I’ve had a sense that some people were using the Oregon initative process in inappropriate ways. But it’s only as a result of this case that I’ve come to understand that Oregonians are being played by a bunch of corrupt racketeers who are intent on hijacking our initiative system. There ought to be a law.
Kudos to the people who pursued this case and shined a light on Bill Sizemore, Racketeer. The legal team handling the challenge includes a number of friends who should be proud of their great work for Oregonians. Two of the lawyers, Mike Morris and Gene Mechanic, are old friends who do top-flight work. It’s particularly gratifying to see that they nailed Bill Sizemore, Racketeer. Maybe this is a lesson to Bill Sizemore, Racketeer that his days of pushing his corrupt agenda on us are coming to a close.
You can be a part of saying no more to Bill Sizemore, Racketeer. Next time you see a petitioner circulating one of those initiative petitions, be sure to ask whether Bill Sizemore, Racketeer is involved. And if he is, tell them that we don’t do business with Bill Sizemore, Racketeer. And then don’t sign. Because I imagine that you agree that there’s no place in Oregon for Bill Sizemore, Racketeer.
I’m totally transfixed by news reports on the Craig Berkman trial. According to this report, Mr. Berkman admitted that he falsified his personal financial statement. It wasn’t one of those tiny little white lies, either. Apparently, he circulated financial statements showing his net worth to be $25 million when he was actually $5 million in debt.
Short version backstory: Craig Berkman is a former Oregon guberntorial candidate who lived the good life as a way wealth investment hotshot. Apparently, that living came either from self-lending made without investors’ knowledge or from outright theft. (Or maybe it’s somewhere in between?)
There are a number of other misstatements set forth in the article, too. But let’s not rush to judgment. Mr. Berkman apparently still denies that he stole money, claiming, instead, that the borrowed it and paid it back with interest.
One of the striking things about the news report is that it shows that it took a lawsuit to get to the bottom of his dealings. Until lawyers at Bullivant Houser filed a lawsuit, the investors couldn’t get the records that sheds the light that forced Mr. Berkman’s admissions. I wonder what the story would be today if the lawyers for the investors hadn’t dug deep to get the records?
Can’t wait to see how this one turns out, but if I had to bet money–and I don’t–I wouldn’t be betting on Mr. Berkman here. At least not from what I read in the press.
Just announced today: The Oregon Attorney General’s office led the way in a multi-state settlement with Merk over its marketing of Vioxx. The settlement includes a payment of $58 million to the participating states. As well, the settlement requires Merk to get pre-approval of its advertising from the FDA.
Merck aggressively promoted Vioxx in direct consumer ads. Based on the Oregon press release, it looks like Merck’s marketeers may have been a tad…uh…aggressive.
No word on how the money from the settlement will be distributed.
Kudos to the folks in the Department of Justice consumer section for pushing. Proper enforcement of consumer laws is especially important when a drug that can cause serious injury is oversold by a drug company.