This one slipped under my radar. Only the heads up from a colleague alerted me that Providence healthcare system has agreed to a fine for HIPPA violations arising out of the data loss of 2005.

FYI, along with several other lawyers, I represent patients whose unencrypted computerized data was lost when a car burgler stole data from a parked car. The case for money damages is currently pending in the Oregon Court of Appeals.  We filed our opening brief on behalf of the patients, and Providence is due to file its response shortly. After they file their response, we’ll have one more brief, and the Court of Appeals will hear oral argument. I doubt very seriously that we’ll get a decision before 2009.

As for the HIPPA fine, $100,000 seems like a lot on its face, except when you realize that hundreds of thousands of patients were affected by the data loss.  Providence has now settled with both the State of Oregon and the U.S. government. Even so, they are still fighting damage claims brought by patients who seek compensation for their harms and losses.

In the life of the case on behalf of the patients, this is a non-event. We will continue forward.

David Sugerman

Post-Katrina (still?!) formaldehyde exposure is at the center of this Congressional dust-up. It seems that Our Congress is debating whether the manufacturers or the government should shoulder responsibility for the dangerous condition of FEMA trailers provided to people displaced by Katrina.

I can’t help but think there’s a more basic question that isn’t getting asked.  Exactly why are people still living in dangerous post-Katrina trailers?  It’s tempting to go all caustic here and wonder about race and class and poverty. But I won’t.

One of the political ironies is that the Republicans want to blame the government for failing to have formaldehyde standards. Interesting. They are now wanting more regulation? But of course, neither side gets all the blame or all the credit. You have to wonder whether the Democrats can’t find a more expedient approach to solving the underlying problem.

As for the legal side, it’s pretty simple. A manufacturer that sells a dangerous product bears responsibility for the harms and losses caused by the product. That would include toxic trailers.

Manufacturers don’t get to blame the government. The government didn’t make or sell the trailers. The government didn’t make hundreds of millions of dollars selling the trailers.  Since they made and sold the goods, the manufacturers have to take the bitter with the sweet. If the product that they sold is dangerous, they pay what is necessary to cover the harms and losses caused by the dangerous product. Simple rule.

But of course, the whole discussion is sickening, in that the first priority has to be prevention of injury by getting people out of toxic buildings.

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 U.S. Supreme Court granted cert in Williams v. Philip Morris again, but it’s a little quick for Philip Morris to start celebrating, as it’s a long way to a reversal.

Here’s the kind of analysis, from Portland’s Ater Wynne, that drives me to drink: “The U.S. Supreme Court today agreed to review only whether the state court was prohibited from, in effect, ignoring its directive to apply the federal constitutional standard.”

But this is the exact question, from Philip Morris’ petition, which the U.S. Supreme Court agreed to review:

“1. Whether, after this Court has adjudicated the
merits of a party’s federal claim and remanded the
case to state court with instructions to “apply” the
correct constitutional standard, the state court may
interpose~for the first time in the litigation–a
state-law procedural bar that is neither firmly established
nor regularly followed”

And the problem, of course, is that any Oregon trial lawyer will confirm that the rule requiring a party to submit accurate jury instructions is both “firmly established” and “regularly followed.” If the U.S. Supreme Court decides the question on the merits with reference to Oregon law, the outcome will be straightforward. Of course, there is no guarantee that this Court will decide the case on the rule of law. See generally, Bush v. Gore.

David Sugerman

This report from The Oregonian on the Berkman trial. According to news reports, Mr. Berkman testified yesterday that he always intended to repay the investor money that he took, and thus they were loans.  I imagine this one is going to be hard one to pull off.

The news reports also highlight Mr. Fortino (one of the investors’ lawyers) cross examination, reporting that Paul Fortino got Mr. Berkman to concede that “loans” are customarily transactions in which the borrowers atcually know that they were lending money. Apparently, these were “loans” that weren’t actually disclosed to the borrowers.

It’s not in the news report, and I don’t have a transcript or first-hand knowledge, so the rest of the cross examination is something I can only imagine. But I suspect that Mr. Fortino went through a litany about a lack of documentation including promissory notes, contracts, loan documents, and the like. He probably had a lot of fun asking about the particulars of these “loans” like the amount of principal, the interest rate, and the repayment date.

I suppose all of this should be written and read with a shred of skepticism, or what in law talk we call, a caveat. News reports sometimes get trials wrong…really wrong. Sometimes that’s innocent when a hard working and honest journalist simply misses something. Sometimes–rarely, I hope–it’s because the reporter has an agenda. And sometimes it’s as simple as an editor nixed part of the report for good or bad reason. So it’s possible that the news report gives a misleading impression of the trial. And all of us owe the system and the parties the grace of waiting for the jury to tell us how it turns out.

Still, it’s impossible not to react to the news report. While I haven’t watched a lick of this trial, it strikes me that Mr. Berkman is coming across like a youngster who hasn’t mastered the fine art of lying. There are several common attributes of good liars, including telling a story that is plausible enough for the listener to suspend his or her critical thinking. And if you’re going to be a good liar, never spin a yarn that is completely at odds with how the world works. Because who could possibly believe that this was a loan?

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

Somehow I’m not surprised. But this report summarizes a new study indicating that employers fare better than employees when an arbitration result is challenged in court. The author describes the employees’ chances in arbitration reviews as “snowballing futility.” Nice phrase; horrible condition.

Congress is set to revisit the mandatory arbitration system abuses. Those who benefit from mandatory arbitration describe it as a fair, cheap, fast, less formal dispute resolution system. It’s often more expensive. Sometimes it’s faster, but often not. Whether arbitration is quicker depends on the speed of the various States’ court systems.

But the real lie is that it’s fair. While that is true at times, there is a perception–based on data points like this one–that it’s closer to a ring toss game at a carnival. What looks to be a fair and even chance at taking home that big teddy bear is just an illusion.

David Sugerman

I suppose it should come as no surprise, but a new study reveals much higher than expected medication error rates for hospitalized children. Prior to the study, the accepted medication error rate for hospitalized children was two out of 100. The study reveals that the rate is more than five times higher at 11 out of 100.

That translates to 7.3 percent of hospitalized kids. Projected out, we’re talking about 540,000 kids per year.

The issue has been under study for some time, but the findings are getting more publicity because of the Quaid twins incident. Medication errors are one of those never-should-happen malpractice events. These results really raise a red flag for those of us concerned with child safety. Let’s hope that our medical providers take these findings to heart, and that they develop new approaches to eliminate these preventable errors.

David Sugerman

By all accounts, it was a horrendous crash caused by a speeding driver. Yesterday’s fatal in rural Yamhill County involved a single Toyota Camry carrying seven passengers. That’s a five seater, so there was no way for all occupants to have seatbelts.

Only two survived the impact with a large tree. Probably no coincidence that one survivor–a toddler–was properly belted in a car seat. That’s another reminder that seat belts save lives. Some will say that seat belts are irrelevant here because the driver was out of control. True about the driver, but the thing is that passengers don’t control drivers, especially when the passengers are children. And no one controls other vehicles.

So it’s a simple sobering reminder. Buckle it.

David Sugerman