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2015 - Second Quarter

Table of Contents
July 1, 2015

Trials This Quarter

Assault Trials

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. Verdict - $143,700.00.

Bicycle Trials

Zickrick v. McLerran, Multnomah County Case No. 14CV04431

Mr. Zickrick was riding his bicycle westbound on North Broadway in the bicycle lane. Mr. McLerran was driving a car also westbound on North Broadway. McLerran began to take a right turn across the bike lane causing Zickrick to swerve left in an attempt to avoid a “right hook” style crash. As he did so, McLerran braked abruptly while sideways to the bicycle lane causing Zickrick to crash into the rear of his vehicle. Zickrick alleged that McLerran was negligent for failing to yield to the bicycle lane and driving without his required eyeglasses. Zickrick alleged injuries including facial and hand lacerations with resulting scarring, broken teeth and a jaw fracture. He sought $40,059.05 for past medical expenses, $60,000 for future medical expenses, $672.00 in lost wages, $500.00 for property damage, $195,000 for lost earning capacity and $450,000 in non-economic damages. McLerran denied liability and disputed damages. He claimed that the crash was Zickrick’s fault for travelling too fast, following too closely and not staying within the bicycle lane. Verdict – $71,231.05.

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.

Sunderman v. Bromley, Multnomah County Case No. 1404-04246

Plaintiff was on a bicycle crossing SE 74th Avenue in an unmarked crosswalk when she was struck by a car driven by Defendant. Plaintiff alleged that Defendant was negligent for not yielding to her as she was in the crosswalk, speeding and not keeping a proper lookout. She alleged injuries including a facial laceration, scarring, and damage to facial nerves.  She sought $175,000 in non-economic damages. Defendant alleged that the collision was due to Plaintiff’s own negligence including not yielding, using the crosswalk at greater than walking speed, failing to maintain control of her bicycle and operating her bicycle while under the influence of intoxicants. Defense Verdict.

Medical Malpractice Trials

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.

Potera-Haskins v. Willamette Valley Foot & Ankle et al., Multnomah County Case No. 1302-02902

Plaintiff saw a podiatrist, Dr. Russo, at Willamette Valley Foot & Ankle for an ingrown toenail in March of 2011. Dr. Russo performed a chemical treatment on Plaintiff’s toe. Plaintiff returned several weeks later with continuing pain. She was instructed to continue wearing her post operative shoe and to see a specialist if her pain persisted. Plaintiff had continuing problems and saw multiple other doctors before finally being diagnosed with tarsal tunnel syndrome by an out-of-state doctor.  She underwent surgery to help repair the toe. She alleged that Defendant was negligent for performing the chemical treatment without informed consent and failing to diagnose and treat tarsal tunnel syndrome. She alleged permanent injury to her toe which will require her to use a walking boot for the rest of her life.  She sought $300,000 for medical expenses and $3,500,000 in non-economic damages. Defendant denied every element of Plaintiff’s claim. Defense Verdict.

MVA Trials

Fuller v. Nava, Multnomah County Case No. 1404-03973

Plaintiff was stopped at a red light when her car was struck from behind by a car driven by Defendant. Defendant was under the influence of alcohol at the time of the crash. Plaintiff alleged soft tissue injuries in his neck. Plaintiff sought damages including $14,742.37 in medical expenses ($1,690.24 outstanding) , $25,000.00 in future medical expenses, $250,000 in non-economic damages and $10,000 in punitive damages. Defendant admitted liability but contested the nature and extent of Plaintiff’s injuries. Verdict – $14,190.24.

Cannon v. Flikkema, Multnomah County Case No. 1402-01841

Plaintiff was hit by Defendant in a rear-end car crash on I-205. Plaintiff alleged injuries including strains and sprains to his back and neck including aggravation of a pre-existing back injury requiring surgery. He sought $29,802.18 in medical expenses, $39,000 in future medical expenses and $350,000 in non-economic damages. Defendant admitted liability for following too close but disputed causation and Plaintiff’s damages. Verdict – $7,151.65.

Telles v. Coleman, Multnomah County Case No. 14CV04903

Plaintiff was a passenger in a vehicle at a red light when struck from behind by Defendant.  Plaintiff alleged injury to his head, neck, shoulder, knee and back.  He alleged that the injury to his neck required a fusion surgery at C5-6. Plaintiff sought $69,563.86 in economic damages and $125,000 in non-economic damages. Defendant acknowledged that his car “bumped” a car in front of him at a light but denied everything else. Verdict – $2,299.50.

Hayes v. Robinett, Multnomah County Case No. 1404-04283

Plaintiff was stopped at an intersection when she was hit from behind by Defendant. Plaintiff alleged that she suffered injuries to her neck, back, shoulder and arms including an aggravation of a pre-existing neck injury. She sought $10,000.00 including $1,000 in unpaid medical bills and $500 in lost wages. She also sought attorney fees pursuant to ORS 20.080. Defendant admitted liability but contested causation and the nature and degree of Plaintiff’s injuries. Defense Verdict.

Pedestrian Injury Trials

Pisotchi v. Snook, Multnomah County Case No. 1405-05786

Plaintiff claimed he was struck by the side mirror on Defendant’s car as he crossed SW 5th Avenue in the crosswalk. He claimed permanent injury to his elbow and back as well as the need for future surgery to repair damage to his shoulder. He sought $43,747.00 for past and future medical care and $150,000.00 in non-economic damages. Defendant denied striking Plaintiff. She also disputed the nature and extent of Plaintiff’s injuries. Defense Verdict

UM/UIM Trials

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. Verdict - $51,616.82.

Other 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.

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