Oregon Trial Advocate

Personal Injury Law & Politics

Oregon Court of Appeals Upholds $1.5 Million Verdict in Herring v. AMR

By Mark McDougal on Posted in Jury Verdicts, K&M in the News, Sexual Abuse

See The Oregonian’s coverage of the trial at the following links:

http://www.kafourymcdougal.com/headline-victories/sex-abuse/

http://www.oregonlive.com/news/index.ssf/2009/09/jury_awards_victim_of_amr_para.html

On September 9, 2009, a Multnomah County jury rendered the following verdict:

(Excerpt of actual verdict form.)

 

AMR Northwest challenged the jury’s finding on appeal, arguing that Royshekka Herring, who was being transported by AMR Northwest, was not a vulnerable person because she was only temporarily incapacitated.  AMR Northwest argued that you had to be incapacitated for days in order to be entitled to a remedy under the Vulnerable Person Abuse Act.

The Court of Appeals upheld the jury’s verdict, finding that nothing in the Vulnerable Person Abuse Act requires the duration of incapacitation to exceed the period during which the abuse occurs.

AMR Northwest also challenged the tripling of the jury’s verdict from $500,000 to $1,500,000 on the vulnerable person abuse claim as provided by statute.  AMR Northwest argued that tripling the jury’s verdict as required by statute violated the Constitution.  The Court of Appeals held that AMR Northwest had notice that abusing vulnerable persons would result in a tripled award.  The Court of Appeals further restated the trial court’s finding:

The trial court found:  “It was reasonable for this jury to conclude that [defendant] ‘permitted’ Lannie Haszard to abuse plaintiff by negligently failing to prevent the abuse.  Clearly, there was a great deal of evidence at trial that [defendant] knew of other instances of alleged abuse committed by Mr. Haszard.”

The Court of Appeals also pointed out that AMR Northwest had “stipulated to the fact that, of the 108 women who had been transported by Haszard, 18 had been subjected to sexually inappropriate conduct.”

Full text of the Court of Appeals opinion available here: http://www.publications.ojd.state.or.us/docs/A144168.pdf.

 

Secret, Anonymous Witness Allowed in Federal Terrorism Trial

By Greg Kafoury on Posted in Political Corner

A quarter of a century ago, I had a case in which an elderly woman suffered a stroke after she had been awakened in the middle of the night by police bashing in her front door, ransacking her home.  The City of Portland was the named defendant, but the target was the Portland Police Narcotics Unit, which received a warrant to search the house based on allegations of a police informant.  The house had been divided into several apartments, and the description of the inside of the house given by the informant strongly suggested that she had never actually been inside the house.  As a result, the court found that the warrant had been illegally obtained, and evidence turned up during the search of one of the apartments was thrown out by the court because the warrant had been illegally obtained.

At the civil trial, the City tried to offer anonymous testimony by the informant.  The City asked the judge to rule that the informant could testify by telephone without making a physical appearance in court, could do so while having her voice altered, and, further, the City asked the Court to rule that I would not be allowed to ask any questions which might reveal the identity of the informant. 

Judge James Ellis held a hearing on the matter, and when it came my turn to cross-examine the informant, I referred to her as “Disembodied Voice,” and asked a series of questions such as, “Can you name three people who could verify that you are someone whose testimony can be trusted?”  I asked the Disembodied Voice where she went to high school, what work she had, whether she had ever been convicted of crimes.  In each case, the defense objected, and the Court did not require the witness to answer. 

At the end of the hearing, Judge Ellis quite properly ruled that this witness would not be allowed to testify, “because the plaintiff has not been allowed to pursue her full rights to cross-examination.” 

Something quite different is unfolding in the federal courtroom of Judge Garr M. King.  Judge King, one of the most respected of the federal judges in the Northwest, has ruled in the terrorism trial of Mohamed Mohamud that employees of the FBI who contacted Mohamud, praised him for his courage and dedication to Allah — and who eventually supplied him with a fake bomb — could testify while wearing disguises, and without the defense lawyers being able to ask just who these men were, where they came from, or other questions that would indicate whether or not they were trustworthy.  They were, in essence, “Disembodied Voices.” 

In my jury trial before Judge Ellis, the only thing at stake was money.  Judge Ellis’ ruling was simply based on the traditional right to cross-examine witnesses.  In Mr. Mohamud’s case, he is facing life in prison, and at stake is the constitutional right of all persons accused to confront the witnesses against them.  Further, by allowing witnesses to testify in disguise, and in clearing the courtroom of observers, the Court is virtually declaring that Mohamud is a terrorist, since such security would be unnecessary if he were – as the defense contends – simply a deeply troubled and easily manipulated teenager.

This country managed to win wars against Imperial Japan and Nazi Germany without using torture, rendition, drones, espionage charges against honorable whistleblowers, massive wiretapping, data mining, or anonymous witnesses in criminal trials. 

Now, in response to a relative handful of religious fanatics who once were able to inflict great damage upon a great city by using box cutters to commandeer airplanes, we have all of these anti-democratic practices, and more. 

The foundation for a lawless and technologically advanced police state is being built up around us, every day.

What are my rights if I was abused by a Catholic priest?

By Jason Kafoury on Posted in Sexual Abuse

Over the last fifteen years, hundreds of victims of sexual abuse by Catholic priests have come forward and demanded justice.  Many victims were children, whose abuse dates back decades. Here in Oregon, these suits forced the Archdiocese of Portland to declare bankruptcy in April, 2007, after it paid out more than $50 million to a 175 victims.  As part of the bankruptcy agreement, the Archdiocese of Portland was forced to set aside $20 million for any future claimants who could prove they suffered abuse.  That $20 million fund will expire in 2017.

The Catholic cases have reached all the way to the Vatican in Rome.  A group of U.S. attorneys have fought a battle against the Vatican in Oregon’s federal court system for nearly ten years. Earlier this year, U.S. District Judge Michael Mossman ordered the Vatican to produce documents regarding the abuse (the tricky part is that the documents produced are vast and in Latin). In August, Mossman dismissed the lawsuit against the Vatican, concluding that the Vatican did not directly employee the alleged abuser Father Andrew Ronan (the victim’s attorneys plan to appeal the ruling to the Ninth Circuit Court of Appeals

Our firm filed a case last year on behalf of a 34-year-old Eugene man who was abused from 1986 until the mid-1990s by Father Donald Durand.  An article by Bryan Denson in The Oregonian outlines how Fr. Durand has been accused of abusing at least 11 men over a 40 year period, and how Durand, in a July 2005 deposition invoked his Fifth Amendment rights against self-incrimination more than 80 times.

If you or someone you know was victimized by a Catholic priest, you should contact an Oregon attorney to determine your legal rights.  Under Oregon law ORS 12.117, a victim abused before the age of 18 can bring a claim at any time before they turn 40 or 5 years after they discover the causal connection between the child abuse and their injuries, whichever period is long

To find out if the Catholic Church has documents relating to an Archdiocese of Portland priest, you can go to www.archdiocesedocuments.org and search by specific priests (as ordered by the Hon. Michael Hogan in November of 2008).  To check on bishops nationally, you can go to www.bishop-accountability.org and look up documents of specific priests.

Remember, you are not alone.

UPDATE: Dr. Makker finally surrenders license

By Greg Kafoury on Posted in Medical Malpractice

Surgeon’s bloody trail finally comes to an end.

With the revocation of his medical license a virtual certainty, neurosurgeon V. James Makker has finally surrendered his license.

Dr. Makker, 42, has been the target this year of some 30 malpractice lawsuits, and of an investigation by the Oregon Medical Board.  A Wall Street Journal article in March, 2011, noted that Makker performed multiple spinal fusion surgeries at a rate 10 times the national average.  In some cases, Makker performed eight, 10, or even 12 spinal surgeries on the same patient.

The Journal noted that a disproportionate number of the repeat surgeries were billed to Washington’s version of workers’ compensation, which pays more money per surgery than other insurance plans.

The latest Board investigation of Makker follows on the heels of a 2006 Board investigation, in which Makker was accused of performing “unnecessary surgeries,” and “gross or repeated negligence.”  The Board let Makker off with the promise to get more training.

This case follows a consistent pattern, both for the Oregon Medical Board and the medical boards of other states, in which doctors who have left a trail of crippled lives in their wake were allowed to waltz away with a slap on the wrist.

Who will investigate Providence Hospital, which managed to look the other way while Makker’s stream of botched and repeated surgeries showered the hospital with undeserved riches?  Kafoury & McDougal have one of the pending malpractice cases; nearly all the others have settled.  We will keep you posted.

Will Corporate Power Crush our Jury System?

By Greg Kafoury on Posted in You Ought To Know

Traditionally, Americans have been people who understood their rights and enforced them. Civil trials are much more than a means to resolve disputes, they are a great stage upon which we play out and renew our commitment to individual freedom, dignity and justice.

The jury is the most democratic of our institutions; and it is where ordinary people have the most power.  That is why it has been targeted by powerful corporate interests.  In the mid-1980’s, the largest insurance companies hired major P.R. firms in Washington D.C. and New York and told them to use all their powers to discredit the jury system.  This effort is ongoing.

As a result, you have all heard the tales that our courts are clogged, that many or most law suits are frivolous, that we have become a litigious society.  In fact, out of the 1.5 million people in Multnomah County, there are only about 100 civil jury trials each year.  Clackamas County averages twelve.  Insurance company propaganda, litigation costs, procedural hurdles, mediation and arbitration, have all conspired to further diminish the role and numbers of civil trials.

Our firm had fifteen civil trials last year.  You, too, should do your part to preserve our justice system by speaking up whenever you hear our jury system subjected to ignorant criticism.

Everyday Heroes: Your Rights and Risks if You Blow the Whistle at Work

By Jason Kafoury on Posted in You Ought To Know

One of Kafoury & McDougal’s clients was a pharmacist at a huge retail store who saw a customer slip on a wet floor, suffering grave injuries.  The store manager immediately ordered the employees to place cones around the fallen man, and then take photos.  The customer never recovered from his injuries, and a wrongful death lawsuit was filed.  A number of employees dutifully knuckled under to the power of their employer, claiming that the man had fallen because he had ignored the safety cones.  When the pharmacist refused to join the cover-up, the company quickly settled the case and later fired the pharmacist, claiming they had done so because he was occasionally late for work.

His story is all too familiar.  Employees who witness negligence, misconduct, and even crimes committed by their employers know that their only safe course is to ignore what they have seen.  All too often, the employers lean on employees to go much further, to lie about what they know, often demanding that employees perjure themselves to protect the company.

How can an employee maintain their personal integrity in the face of corruption, when they know that doing the right thing may cost them their job, or even their career?

Years ago, Kafoury & McDougal represented Pamela Settlegoode, an adaptive PE teacher who worked with severely disabled children in the Portland Public Schools.  When she saw that the children’s federal rights to equal educational opportunities were being systematically denied, she complained in writing to her superiors.  They wrote back that she should stop such writings, because “writing is not an effective means of communication.”  She kept on writing, on up the chain of command, until she reached the superintendent of schools.  Thereafter, Settlegoode found her file being papered with criticisms of her teaching, and her employment was not renewed.  We sued the school district and her superiors, and a federal jury in 2001 awarded her the prayer, $1.1 million.

This summer, another Kafoury & McDougal client, Michael Wright, was awarded $970,000 plus his attorney fees in a case against the NW Regional Education Service District and its HR director, Jack Musser (link to Steve Duin column here).  Wright was a teacher of blind and visually-impaired children who complained that the district was not spending the money set aside for such students by the Oregon legislature.  The legislature became so appalled at the pitiful use made of these funds that they terminated the funding, causing incalculable harm to the students who needed the programs and specialized teachers that should have been provided to them.  As for Michael Wright, he was written up for being “unprofessional” for providing too much “advocacy” on behalf of blind students, and then fired over a technicality which was routinely ignored for other teachers.

The lessons of the Settlegoode and Wright cases are both that whistleblowers put their careers at risk, and that juries recognize and honor those who willingly place themselves in harm’s way in order to serve a greater good.

If you or someone you know should feel pressure to conceal or lie about wrongdoing by your employer, you should copy and keep relevant documents, make good notes, and call a lawyer for advice, sooner rather than later.

The Disgrace of Penn State

By Greg Kafoury on Posted in Sexual Abuse, You Ought To Know

In 2002, an assistant coach in Penn State’s football team told his boss, the legendary coach Joe Paterno, that he caught Jerry Sandusky, Paterno’s former defensive coach, anally raping a 10-year-old boy in the team’s locker room.  Coach Paterno reported the assault to the athletic director, and to the vice president of Penn State University.  The President was told a little later.

No one called the police.  No one conducted any form of investigation.

Meanwhile, Sandusky continued his work with The Second Mile, a charity for troubled youth that Sandusky had started in 1977.  The organization continued to deliver to Sandusky a stream of troubled young boys, and reports of Sandusky’s molestation and raping of these children have grown steadily in the days since the scandal broke.

University officials have been indicted for perjury and concealment, and Sandusky has been charged with the rape of children.  Paterno, lionized as a moral leader as well as perhaps the greatest football coach of the last half-century, now sees his reputation in ruin.

This dreadful pattern of denial and concealment of sexual abuse seems never to end.  Our law firm, Kafoury & McDougal, has represented more than a dozen women abused by the American Medical Response (AMR) ambulance attendant Lannie Haszard between 2005 and 2007.  One case went to trial, with the resulting judgment totaling nearly $4 million.  Many other cases have settled.  We also presently represent women sexually abused by AMR ambulance attendants in Missouri and California, and now represent three women who were sexually abused during surgery by Dr. Frederick Field, an anesthesiologist in The Dalles, Oregon, between 2008 and 2011.

From the Catholic Church to ambulance companies, hospitals, and Penn State University, protecting the institution at the expense of those it is entrusted to protect constitutes a great moral failure of our institutions.

Dr. Vishal James Makker: Medically Unnecessary Spinal Fusions

By Greg Kafoury on Posted in Medical Malpractice

By all accounts, Portland neurosurgeon Vishal James Makker is a man who makes a strong impression.  Young and handsome, gracious and articulate, a man with a compelling and charismatic personality.  Among all the neurosurgeons in America, he was singled out by the Wall Street Journal on March 29, 2011, for his professional work.

Unfortunately for his patients, what the press found most compelling about Makker was his number of repeat surgeries.  One luckless patient had six spinal surgeries at the hands of Dr. Makker in less than two years.  Each one seemed to do more harm than good.  Undaunted, Dr. Makker tried to persuade him to try his luck a seventh time.

Dr. Makker has a particular propensity for performing multiple spinal fusions on Medicare patients.  The Journal reported that for “every 100 initial fusions, he performed an additional 39 surgical fusions, the highest rate in the nation” among active surgeons.

In 2006, the Oregon Medical Board issued a complaint against Makker, claiming that he was performing “medically unnecessary” spinal fusions, including operations performed without the consent of his patients.  He was also cited for billing for procedures he had not performed.  Yet Makker was able to resolve the problem by completing a remedial training program and a billing course.

Kafoury & McDougal are presently evaluating Dr. Makker’s surgical performance for a woman who had huge amounts of steel implanted in her cervical spine by Dr. Makker, and was then told by the good doctor that “it looks like we’re going to have to do this again.”  She eventually had a surgery from another neurosurgeon who tried to repair what had been done, but she wound up in the intensive care unit on life support, strapped down on a bed with tubes inserted into her.

Before you let any surgeon work on you, you should check all publicly-available resources to learn what you can about the physician.

Settlement Lawyers v. Trial Lawyers

By Mark McDougal on Posted in You Ought To Know

The number of civil jury trials has been steadily declining over the past few decades.  In the entire federal court system, there were only 400 personal injury trials in 2010.  Judges fully understand the importance and need for jury trials.  In Oregon, Multnomah County judges were so concerned about the trend in declining jury trials in state court that they actually put together a panel to study the issue. The panel explored a variety of reasons for declining jury trials, however, it seems the panel overlooked the main cause: the emergence of the “settlement lawyer.”

A group of lawyers who never would have survived a couple of decades ago, so-called “settlement lawyers,” have managed to thrive by marketing themselves to injured persons.  These “settlement lawyers” devalue everyone’s claims because the insurance companies know that they will not take cases to court.  Jury trials are disappearing because people who suffer personal injuries are not educated about how to choose a lawyer and often end up with a “settlement lawyer”.

“Settlement lawyers” accept the low-ball offers from the insurance companies and make a full contingent fee, even though an honest contingent fee is premised on the lawyer’s willingness and ability to take a case to trial if a fair settlement offer is not made.  Most plaintiff’s lawyers set contingency fees, meaning they only collect fees if you win your case.  The low settlements made by these “settlement lawyers” get entered into the insurance company computers and are used to value new claims.  “Settlement lawyers” are causing a downward spiral, actually helping insurance companies under-value claims. Some cases are best settled, but if your insurance company knows the attorney will settle, it undervalues the claim.

These “settlement lawyers” also do not work up cases for trial because they aren’t going to try the case. Many of them also don’t understand the rules of evidence, because they rarely, if ever, have used them in court. Knowing what evidence is admissible is crucial to the ability to properly value a case.

In 2010, there were only 100 civil jury trials in Multnomah County.  So far this year in 2011, we have already tried 10 cases as of the end of June.

Make sure you hire a trial lawyer if you are injured.  Here are three questions to ask your current or perspective lawyer:

  • How many trials have you had over the last 2 years?
  • What’s your biggest jury verdict?
  • How many years have you been a plaintiff’s attorney representing injured people?

Should You Deal with Other Insurance Company After an Accident?

By Greg Kafoury on Posted in You Ought To Know

“Do I Really Need a Lawyer? The Insurance People Seem So Nice . . .”

“We are sorry our client ran into you.  We’re here to help.  I’m sure we can work this out.  Let me just turn on the tape recorder and get your statement, and please sign this form, which just allows us to get your medical records. . . .”

Insurance adjusters are trained to lull you into thinking that you will get a fair deal from them, and that you really don’t need to have a lawyer on your side.  Then, months later, they make a settlement offer which is a small fraction of the value of your case, and they tell you that that is all you’re going to get.

So at this point, where are you?  They have all your medical records, including records of unrelated body parts and unrelated conditions, and perhaps even psychological or psychiatric records.  They have your complete statement, and woe be unto you if you left anything out of it.  They have also done an on-scene investigation.

What do you have?

You have no statement from the other driver.  You have lost control over your own medical records.  You have lost such crucial evidence as the opportunity to measure skid marks, to document the point of impact, be the first to talk to eyewitnesses, and to get photos of their vehicle before it is repaired.

So, the insurance company has everything, and you have nothing.  Of course, sometimes things are much worse.  Perhaps the bump on the knee that you neglected to mention while the insurance company was recording you has gotten worse, and now you need surgery.  Too bad.

The point is simple:  Insurance people are serious professionals, and their only goal is to protect the insurance company by making sure you get as little compensation as possible.

If you’ve been hurt by the fault of another driver—or by any other person or business, for that matter—call a car accident lawyer that you can trust.  Treat your claim seriously, because the other side will.