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2015 - Second Quarter

July 1, 2015

Trial Numbers

  • MVA - Plaintiffs won 3/4.
  • Medical Malpractice - Plaintiffs won 0/3.
  • Bicycle Injury - Plaintiffs won 2/3.
  • Assault - Plaintiffs won 2/2.
  • Uninsured Motorist - Plaintiffs won 1/1.
  • Insurance Bad Faith - Plaintiffs won 1/1.
  • Personal Injury Protection Denial - Plaintiffs won 1/1.
  • Pedestrian Injury - Plaintiffs won 0/1.

Notable Trials

Tuter v. GEICO and Smith Freed and Eberhard PC, Multnomah County Case No. 1309-13606

Plaintiff was sued as a result of a car versus motorcycle collision in August of 2007.  Defendant, GEICO, was his auto insurance company. Plaintiff had an insurance policy with $100,000 limits. The lawyer for the injured party made multiple demands to GEICO in which they offered to settle for the limits of Plaintiff’s insurance policy and not pursue Plaintiff for amounts in excess of the policy.  GEICO would not agree to pay limits unless the injured party’s health insurer was named on the check as well as the injured party. The lawyer for the injured party explained to GEICO that the health insurer did not have a statutory lien so it would be up to the injured party to pay or negotiate amounts due the health insurer. Plaintiff offered to sign a release that would hold GEICO harmless in the event the health insurer made a claim against GEICO.

GEICO refused the limits offers and hired the Portland law firm Smith Freed & Eberhard (“Smith Freed”) to defend Plaintiff. Further policy limits offers made to the law firm were rejected. The lawyers at Smith Freed told Plaintiff that there was an enforceable healthcare lien. The lawyers and GEICO never told Plaintiff about the repeated policy limits demands and the decision to reject them or what that might mean to Plaintiff in the event of a verdict in excess of his limits.  Instead, they advised Plaintiff and took steps to assist him in filing for bankruptcy before trial.  The attorneys and GEICO never advised Plaintiff that if he filed for bankruptcy he would be prevented from accruing a cause of action against GEICO or Smith Freed for negligently causing him to be subjected to an excess verdict.

Plaintiff ultimately decided against filing for bankruptcy and the case proceeded to trial.  The injured party obtained a verdict in the amount of $329,820.50.   After the verdict GEICO and the lawyers at Smith Freed continued to advise Plaintiff to file for bankruptcy.  GEICO, with advice and counsel from Smith Freed, refused to allow Plaintiff to assign his negligence claims against GEICO to the injured party thus satisfying the judgment against him.  GEICO paid the injured party their $100,000 and left Plaintiff on the hook for the remaining amounts.   Plaintiff, in an agreement with the injured party to satisfy the judgment, brought this lawsuit against GEICO for negligence and breach of contract.

Plaintiff sought $329,820.50 for the amount of the judgment he was subject to and also sought $29,000,000.00 in punitive damages.

GEICO took the position that they did everything required of an insurance company when they tendered limits with the condition that the injured party’s health insurer be named on the check.  The reason for this was the risk of litigation from the health insurer directly against Plaintiff for not including them on the check when they had an enforceable lien.  GEICO further took the position that Smith Freed did not adequately advise them regarding Oregon law with respect to liens, excess verdicts and assignments.  GEICO also claimed that they never advised Plaintiff to declare bankruptcy; they only referred him to a bankruptcy lawyer. Smith Freed settled with Plaintiff before trial leaving only GEICO as a defendant.

Total Verdict - $17,835,888.76 including $17,500,000 in punitive damages.

Rausch v. McFadden Lane Inc., Multnomah County Case No. 1404-04162

Plaintiff was a patron at Defendant’s bar. Plaintiff alleges that Defendant’s bouncers ejected him from the bar for slapping the side of a pinball machine. Plaintiff went outside and pushed Defendant’s sandwich board advertising to the ground before leaving the area. Defendant’s bouncers pursued Plaintiff down the street.  Plaintiff was afraid of being “cornered” so he pushed the closest bouncer to keep him away. Plaintiff was then thrown onto a parked car and assaulted without justification. Plaintiff sustained a severe finger fracture which required surgery. He sought economic damages for past medical bills totaling $23,700 and $250,000 in non-economic damages.

Defendant alleges that Plaintiff was ejected from the bar after punching the pinball machine. Defendant claims that its security personnel followed Plaintiff at a safe distance to make sure he did not attempt to go in their back entrance.  Plaintiff attacked the security who then acted in self defense. They also claim that Plaintiff may have suffered the injury when he punched the pinball machine.

Total Verdict - $143,700.00

Sproston v. Symank, Multnomah County Case No. 1401-00711

Plaintiff was riding a bicycle on NW Overton when Defendant drove through a stop sign and struck him.  Plaintiff alleged injuries including permanent nerve damage to his right L5 nerve root. Plaintiff sought economic damages of $250,000 for medical care, future medical care, wage loss and lost earning capacity.  He requested $150,000 in non-economic damages. Defendant admitted liability but contested causation and damages. Total Verdict - $61,161.80.

Tran v. National General Insurance, Multnomah County Case No. 1404-04693

Plaintiff was hit by an uninsured driver in a rear-end car crash. She brought this lawsuit against her own insurance company for uninsured motorist coverage. She alleged injuries including a foot sprain, plantar fasciitis, neck strain, back strain, hand and wrist strains. Her past medical bills totaled $18,278.39. All but $1,439.82 were covered by Defendant through the PIP portion of Plaintiff’s insurance policy. Plaintiff sought the $1,439.82 in unpaid medical expenses, $35,000 in future medical expenses, $250,000 in non-economic damages and attorney fees pursuant to ORS  742.061. Defendant contested only the nature and extent of Plaintiff’s injuries. Total Verdict - $51,616.82. Plaintiff sought $37,170.00 in attorney fees after the judgment. the attorney fee issue was settled before a judge could rule.

Mead v. Legacy Health et. al, Multnomah County Case No. 0402-01947

This case was a re-trial of a case back from the Oregon Supreme Court after an initial trial in 2005.

Plaintiff went to Legacy Good Samaritan hospital complaining of back pain on July 1, 2002. She had a history of chronic back pain and associated neurologic symptoms. Emergency room doctors treated Plaintiff and took an MRI. Defendant was the on-call neurosurgeon that week. The ER doctors consulted with Defendant over the phone and Defendant advised that Plaintiff was not a surgical candidate. The ER doctors admitted Plaintiff for observation.

Plaintiff claims that Defendant was finally persuaded to engage in care for her on July 3, 2002. She says Defendant did a cursory exam and declared to staff that Plaintiff did not need surgery as she was, “just a big fat woman with a sore back.” After Plaintiff’s condition worsened, Defendant finally did a thorough exam and immediately took Plaintiff into surgery to attempt to reverse the effects of cauda equina syndrome but was unsuccessful. Plaintiff alleged that Defendant was negligent for failing to timely diagnose and treat her condition. She alleged damages including impaired bladder and bowel function as well as impaired use of her legs. Plaintiff sought damages of over 12 million dollars.

Defendant claims that during the initial phone consult he was never asked to come to the hospital or review an MRI. He says he was instructed that Plaintiff was neurologically intact. Legally, he never developed a physician/patient relationship with Plaintiff and therefore cannot be liable to Plaintiff. He claimed that he never actually saw Plaintiff until he was asked to examine her on July 5, 2002 when he immediately took her into emergency surgery. He claims that any negligence was on the part of the ER doctors and hospital who had previously settled with Plaintiff. Defense Verdict.

Morales v. State Farm, Multnomah County Case No. 1402-01417

This was a lawsuit brought by Plaintiff against her own auto insurance company for denial of personal injury protection ("PIP") benefits. After a motor vehicle crash, Plaintiff sought medical care for injuries she alleged were reasonable, necessary and related to the crash. After paying for some care, Defendant terminated her benefits and refused to pay for further care arguing that the additional care was no longer reasonable and necessary. The jury determined that the care was reasonable and necessary. Plaintiffs Verdict. The Court awarded $26,248.00 in attorney fees pursuant to ORS 742.061.

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