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

Reported here is the impending settlement of a claim by the estate of James Perez against the City of Portland. Back in 2004, Mr. Perez was shot to death by Portland police in a traffic stop. Details are sketchy, except that Elden Rosenthal represents the family. Elden is a rock star when it comes to tough civil rights cases.  I expect to hear more about this in the coming days.

In a situation like this, you can’t really congratulate the family. While money from the settlement apparently will be used to provide care to Mr. Perez’s ailing mother, there’s little joy in the resolution of these types of tragedies.

David Sugerman

Today, the Oregon Supreme Court ruled that caps on non-economic damages in wrongful death claims do not violate the Oregon constitution. In Hughes v. PeaceHealth, the Court declined to find the caps unconstitutional. Here is the link for the opinion: http://www.publications.ojd.state.or.us/S053447.htm.

Justice Walters’ dissenting opinion features one of the most eloquent descriptions of the jury system that I have ever read. It bears quoting here, as her prose is as brilliant as her analysis:

“The 12 in whom our constitution places its trust are the 12 who hear each word spoken from the stand, and the silences between. They are the 12 whose eyes watch others’ eyes and take their measure. By their absence, legislators cannot fill that role. Legislators may decide the categories of harm the state should address and the categories of persons who may bring claims in courts of law. But only jurors can shake right out from wrong for individual human beings and do them justice. ”

For those keeping score at home, the outcome is a bit hard to fathom. As to general injury cases, the Oregon legislature cannot place caps on the damages recoverable by injured consumers because those caps run afoul of the Oregon constitution. Ironically, if the injured consumer dies from the injuries, the recovery may be capped.

Go figure.

David F. Sugerman