Here’s the US Department of Agriculture’s brochure on new rules requiring labeling of the country of orgiin of meats, fish and produce.  At the same time, the State of California is requiring larger restaurant chains to provide calorie and nutrition information to consumers. Both sets of rules provide important information to consumers, though each works on different parts of food issues.

I’m a fan of both, even if they will no doubt draw the ire of those who say that there are too many regulations.

As to country of origin rules, until China puts systems in place to provide safe products, I’m not feeding my kids food from there. Apart from that, country of origin labeling helps with a separate problem. It takes an awful lot of oil to grow and ship kiwis from New Zealand and grapes from Chile to North America. My preference is to buy food that doesn’t consume Middle Eastern oil or add more greenhouse gas to the atmosphere.  So country of origin labeling helps a little on that front.

And as for the food menu calorie rules, we’ve got the whole obesity problem. The theory is that calorie count information will help consumers make wise choices. I’m not sure whether it will work, as I can imagine that more information won’t lead  people to make better food choices at the food court. But even if the new rules don’t lead all consumers to think before they order, providing information gives motivated consumers the ability to make choices.  Put another way, once you know that the Outback’s Bloomin’ Onion appetizer has 2300 calories, you can make informed choices if you’re concerned about weight.

Both sets of rules seem like wise policy to me.

David Sugerman

I try like heck to avoid the media’s scare-of-the-day mentality. But this New York Times mag report leaves me with one of those bad feelings in the gut.  Drugs manufactured in China? Great. After the various lead paint toy problems, I’ll pass.

Part of the problem is the Wal-Mart syndrome that says that lower prices are always better. In pursuing the lowest possible price, sellers move production off shore. Of course, you could make a car cheaper by simply omitting the brakes. That would be a good example of price slashing going too far.

Call me crazy, but I’ll pay more for aspirin if it means that I’m getting aspirin I can rely on to be safe. Unfortunately, recent Chinese manufacturing scandals give consumers reasons to worry.

David Sugerman

The State of Oregon Department of Consumer and Business Services reportedly fined Bankers Life and Casualty Co. $150,000 over its sale of unsuitable annuities to seniors. Bankers’ Life reportedly refunded premiums to approximately 20 Oregon seniors who were paying so much on annuity contracts that they could not afford to cover living expenses.

Interesting legal question as to whether Bankers’ Life sharp practices qualify as elder financial abuse under ORS 124.110. That statute is designed to protect seniors from financial abuse. It’s a powerful law that provides a means of checking physical or financial abuse of Oregon seniors.

I don’t have any knowledge of the State’s actions, other than the media reports. It’s good that the State took action. My hope is that the affected seniors got fairly compensated for all of their harms and losses. I have to wonder whether there are other victims out there, as it’s hard to imagine that Bankers’ Life only sold 20 of these types of policies to vulnerable Oregon seniors.

David Sugerman

News today is that the Oregon Supreme Court issued this opinion that could help Oregon consumers with property damage insurance claims.  I have to confess that insurance policy cases make for dry reading.  So it can be hard to follow these types of cases.

Here’s what the Court decided.

When you are in a wreck, the company that insures your car must restore the car to its pre-collision condition.  If it cannot, the insurance company must pay the consumer the diminished value of the vehicle.  It’s a nice result for consumers. Consumers get nickled and dimed to the poorhouse, and this is simply one modest change that helps consumers get the benefit of the insurance that they buy.

This really becomes more of an issue when you’re injured in a car crash. It’s bad enough that you have to deal with the physical injury, the pain, and the long process of getting back to health.  But when–on top of that–you’re being nickled and dimed by your insurance carrier, it just seems like there’s something wrong. After all, when we pay for insurance, we should get full coverage. The Court ruled the right way today, and that’s a good thing.

It will be interesting to see whether the Oregon insurance industry lobbies for a re-write of this rule when the Oregon legislature reconvenes in a few months. Wouldn’t suprise me a whit. But then I take a fairly jaundiced view of these things.

David Sugerman

Corrected 26 Jan 2009:

It’s so hard to read this story of grief involving an Oregon family. A sand rail collision on the Oregon dunes decimated David Leach and his fiance’s family.  According to the news report, David Rieman, the other driver, may have been drinking.

The obvious thing is that alcohol and dune riding don’t mix. I suppose it’s maybe too tempting. It’s beautiful out there on the Oregon dunes, and if you’re out on a warm day, it’s hard not to knock back a few beers. But anyone who has been out there can tell you that the beautiful dunes are also dangerous as all get-out.

Apart from alcohol, the Dunes are beautiful, but they demand caution and attention. Terrain shifts, and some of the off-roaders drive like bats out of the hot place below. You often can’t see what’s coming over the crest of this dune or the next. It’s no place for anyone impaired.

This isn’t mean to heap blame or find fault. To the families involved, there’s nothing ahead but profound pain. But for the rest of us who love to frolic in the dunes, maybe this tragedy provides a moment to reflect and to renew the commitment to separate alcohol from off-roading.  Maybe, also, it’s a teachable moment for others who aren’t operating safe vehicles out there.

David Sugerman

This piece–including graphic pictures of burn victims–addresses the nightmare scenario of waking from surgery to find yourself in a burn unit with profound lifetime injuries.  Apparently, flash fires in surgery are more common than previously believed.

The problem illustrates the need for open courts in cases involving medical errors. If you have any doubt about the need for a healthy civil justice system, look at the faces of patients who suffered severe burns while undergoing surgery.

It’s only minor comfort to learn that it’s a rare catastrophe. But it also looks like fires in surgery can be prevented by controlling tools that spark the fire or adjusting the environment.  I wonder if this one is also on the list of “never errors” that our friends in the medical profession use in reviewing injury problems.

David Sugerman

Saw this report over the weekend about the newly filed wrongful death case on behalf of one of the families that lost a son in the recent helicopter crash.  As I often observe–and by way of caveat–news reporters sometimes get reports about lawsuits wrong, and I offer that at the front end.  Even so, I’m a bit taken by a major difference between Oregon and California lawyers.

In Oregon, we don’t file cases simply to find out if someone made a mistake. Our courts require Oregon parties and lawyers to have a basis for the lawsuit.  In other words, the family and its lawyer need to have a good faith basis for claiming that someone did something wrong before filing the lawsuit. To be sure, you wind up learning a lot through the process of a lawsuit, but it’s not supposed to be a process of suing without knowledge.

Having said that, my heart goes out to the family. Most of us who are parents have some inkling of the profound heartache that comes of losing a child.

I suppose it easy to be critical of this tragically wounded family. But at bottom, they only dare to want to call someone to account for wrongfully killing their child.   In that respect, the scorn being heaped upon them seems to me to be callous and mean.  To be sure, most Oregon lawyers would have acted differently. But if it were my case and I found fault, I would surely advise the family of their options.

Some of the scorn seems particularly harsh to my ear because of the current financial crisis. But that’s just me talking, I guess.

David Sugerman

In opening the beloved Tale of Two Cities, Dickens observed, “It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness….” He could have been talking about Oregon Health & Sciences University.  Here’s a glimpse of foolishness. OHSU’s  bonus program is alive and well, with payments to top executives of bonuses totaling some $1.7 million this year. That’s on top of the high six-figure salaries, and the valuable perks. And it’s happening amidst staff layoffs and clinic closings.

So what’s wrong with this picture? OHSU claims to be a publc corporation and claims to put the interests of Oregonians ahead of profit.  A few articulate Oregonians make a case otherwise, here.

The bigger piece is that OHSU is in the hole due to overbuilding and overspending. OHSU cried wolf recently when the Oregon Supreme Court ruled that the cap on damages could not be enforced in Jordaan Clark’s case.  OHSU went to an austerity budget, laying off hundreds and closing clinics. But the bonuses still flowed.

So here’s the score. OHSU causes profound injury to Jordaan Clark. When push comes to shove, the Oregon Supreme Court tells OHSU that it cannot rely on a horribly inadequate cap and that it will have to answer to the profoundly injured child. OHSU blames the child for its financial crisis but overlooks its own profligate spending in the South Waterfront debacle, the designer tram, and the losses of research dollars.  OHSU lays off care givers and closes clinics, laying the blame at the high cost of insurance.

Against this backdrop, we’re rewarding these people with bonuses. You’ve got to be kidding me.

David Sugerman

Good explanation in–of all places–Forbes on how caps on damages discriminate against retired and lower-earning individuals. Oregon legislators and voters are often asked to consider capping damages, and for that reason, this is a good read.

As the author explains, caps on damages typically limit non-economic damages.  Non-economic damages have been wrongfully labeled as “compensation for pain and suffering.” In fact, those damages address all forms of harms and losses bound up in the joys and pleasures inherent in life that can’t be measured by a simple paycheck or bill. So if you lose the loving relationship of your mother, that is a non-economic harm and loss. Same deal if you lose your ability to lift your child, taste food, see a sunset, or walk on the beach. Those profoud human joys are at the core of non-economic damages.

Caps often do not limit what are called economic damages, which address an injured person’s out-of-pocket losses. Miss a month of work because you got hit by a drunk driver and that loss of pay is an economic damage. So are the medical bills that you incurred.

So here’s the problem. Those who fare well in the legal system are only those who have large economic losses. If you lost 10 years of earnings from a doctor’s mistake or if you will need lifetime medical care, you will be able to recover full compensation. But if you were retired or under- or unemployed, you won’t. The capped claim system doles out justice based on wealth.  In that respect, it is fundamentally wrong.

David Sugerman

In many areas of litigation, expert witnesses provide crucial testimony about all sorts of things. Issues addressed by experts include the medical condition of a party, the complex financial transactions of an investment scheme, the mental capacity or sanity of an accused, and the safety of a product.

In the American system, experts are hired by either party, and they testify for the party that hires them. In many other judicial systems, experts are hired to advise the court and do not work for either party.

Some view the American system as a horrible practice. The criticism is that experts become little more than information prostitutes who sell themselves to the highest bidder. I don’t subscribe to this view, for what it’s worth.  My take is that an expert who can’t be objective is nearly worthless. Jurors look to us for credibility. I lose that credibility if my expert cannot take a principled approach to testimony.

All this is a long way around to this New York Times article about expert hot tubbing.  In expert hot tubbing, the experts appear at trial together and address the issues jointly. They even ask questions of each other and discuss the case jointly in front of the trier of fact.  The article claims that the practice originated in Australia.  It’s an interesting thought, though I have to wonder whether it’s the panacea suggested by its advocates.   After all, if an expert truly lacks scruples he or she isn’t going to change that point of view by appearing at trial with the opposing expert.

Even so, it’s an interesting view of the world. For those who geek out on the details of the civil justice system, it’s well worth the read.

David Sugerman