A Juror Speaks Out: More on Bixby v KBR

A follow up  on a recent post. Our story so far:  Judge Papak issued a comprehensive 63-page opinion on Friday affirming the jury verdict in favor of 12 Oregon Army National Guard veterans against KBR. The men were injured by sodium dichromate contamination, while providing security at a KBR work site, the Qarmat Ali Water Treatment Plant, in Iraq in 2003.  My work on the team representing the veterans has consumed a good part of my professional life.

Under the rules that govern the conduct of Oregon lawyers, I am not allowed to approach jurors and ask them for feedback on their service in a case I have tried. The rule exists for good reasons. We don’t want lawyers to be able to use jurors’ statements to undermine verdicts, and we never want to add additional burden to the difficult duty of serving on a jury. The rule is straightforward: We can talk if a juror initiates contact but cannot contact jurors.

That said, I am always incredibly interested in what jurors think. (Most every trial lawyer is, so in that regard I’m not special.)

That’s why I found this follow up news report so exciting. Mike Francis, The Oregonian reporter, is not under the same restrictions. He can ask jurors for feedback and comments after the trial, and he got a response from Ken Howe, the presiding juror.

Very cool to hear Mr. Howe’s take. I was initially blown away to read that Mr. Howe had gotten a copy of the opinion and read it over the weekend. Then I was appreciative all over again of how hard this jury worked.

While there is a lot of law in the opinion–that’s required with what we do–Judge Papak’s  opinion focuses on the evidence in detail. From  The Oregonian, it appears that Mr. Howe and Judge Papak viewed the evidence in similar fashion.

As Mike Francis reports, Mr. Howe explained:

“‘His [Judge Papak’s] analysis of the evidence closely echoed our discussions during deliberations,” *** “Not being trained in the legal profession, I don’t fully understand the reduction of the non-economic damages award, but I was pleased to see that Judge Papak let the punitive damages stand — another confirmation of our verdict.'”

As Mike Francis noted:

“Papak’s opinion amounts to a point-by-point refutation of KBR’s legal arguments during the trial.”

There are many reasons why this case is important. There are many pieces to this big story that will be told for a while and remembered for the rest of our lives. That said, every hour, every sleepless night, every worry has been worthwhile for these veterans. When our system of justice works, it is a sweet thing.

I’m sure the jurors who served know that the veterans, and those of us who served as counsel, stand in awe. Their service, too, is a huge part of this story. It’s one I imagine I’ll never get to hear or tell, but that’s the life of a trial lawyer.

-David Sugerman

Oregon Court Confirms Jury Verdict for Oregon Qarmat Ali Veterans

It’s a good day for the Oregon Qarmat Ali veterans.

Today,  the Court confirmed the jury verdict in favor of the first 12 Oregon Army National Guard veterans who suffered contamination injuries at the Qarmat Ali Water Treatment Plant in Iraq in 2003.  Here is a link to the PDF opinion:  724 – opinion & order re trial

Judge Papak denied virtually all of KBR’s motions for which it sought a new a trial. Judge Papak left intact each veteran’s $6,250,000  punitive damage assessment and reduced each veteran’s compensatory damage assessment from $850,000 to $500,000. Judge Papak reduced those damages based on a case that came down after argument, Howell v. Boyle, 353 Or. 359, 298 P.3d 1 (2013). Just so we’re clear, the veterans disagree with the reduction part of Judge Papak’s legal ruling.

In any event, this is a great day for the veterans and their families. They told their stories to the jury, and the jury did justice. After a detailed, independent review, Judge Papak confirmed the jury’s findings.

For my part, I could not be happier for these vets and their families. When our system of justice works, it is a thing of beauty.

Zippers, coffee, Twitter and very tender man parts

I don’t really have time for this. I have two briefs due this week. The first is an opposition to a motion for summary judgment in a product liability case. The second is a reply brief in our consumer fraud class action against BP for failing to disclose debit card charges to Oregon gas purchasers. And if that’s not enough, I have legislative meetings this week on consumer legislation that would help end insurance abuses by covering Oregon insurance companies under the Unlawful Trade Practices Act.

All of that is an over-long explanation of why this post is going to be quick and somewhat dirty. Too many things.

So on the Twitter, I wandered into a conversation–if you can call it that–between Nicole Augenti (@Nicole1515), a Connecticut trial lawyer, and Ted Frank, @tedfrank*, a lawyer who I understand devotes most of his practice to objections in consumer class actions. Ted also blogs at the Manhattan Institute’s Point of Law blog, a blog that is supported by the Manhattan Institute, a well-known corporate-funded think tank devoted to re-design of the U.S. civil justice system to make it more corporate friendly. “Corporate friendly” is a euphemism. These smart people reportedly funded by the Koch brothers and a number of large corporations are bent on destroying the civil justice system through radical restrictions of the right to trial by jury.They do so through a number of initiatives, with allies like The Federalist Society, think tanks, blogs, coordinated message points, etc.

They are doing this through “tort reform”–an insidious notion that they know better than juries whether corporations should be held responsible when they misbehave. They are doing so through mandatory arbitration to ensure that consumer and employee claims never make it into the courtroom. And they are doing it through allied media and public relations firms.

So against this backdrop, Mr. Frank is called out for this particularly inane blog post. Ms. Augenti comically tweets: “So, Ted Frank (TORT REFORMER!) is mad he can’t sue for penis zipper injuries?? http://www.pointoflaw.com/archives/2013/03/zippers-and-mcdonalds-hot-coffee.php … ” The Twitter back and forth starts with a very smart, accomplished intellectual of the caliber of Ted Frank accusing Ms. Augenti of illiteracy and wondering whether she isn’t a walking malpractice trap.

But the point, which he doesn’t want to address, is how messed up Mr. Frank is on the law of product liability. He is too busy taking swipes at another pal of mine, Susan Saladoff, for her seminal work on the great documentary, Hot Coffee, the Movie.

So now let’s get to the errors of Mr. Frank’s analysis. That’s why I am writing this, after all.

According to Ted Frank, if Stella Liebeck, the consumer in the McDonald’s case, can sue because she burned herself on hot coffee, so can men who suffer injuries to delicate organs (informally referred to as the Johnson, the little brain, the schlong; more formally known as the penis) when using zippers.

How does Mr. Frank get to the schlong injury claim? He oversimplifies and misstates the law of product liability.  According to Mr. Frank, Susan Saladoff, who had a great run as a capable Oregon trial lawyer, advances the theory that product liability claims exist anytime someone or many people get injured by a product. He knows that he has oversimplified Susan’s point. She doesn’t say that.

What Mr. Frank ignores is that the consumer must prove that a product is unreasonably dangerous to pursue a product liability case. “So coffee is hot and everyone knows that,” is the prevailing knock on the McDonald’s case. What people don’t realize is that the coffee temperature was not hot, it was HOT. McDonald’s sold it at a temperature that caused major, horrible burns when spilled on humans. And they did it knowing that this was a problem, based on the hundreds of prior injuries.So it’s not that coffee can burn, but that McDonalds set the temperature at an unexpected and unreasonably high temperature that is a danger.

And now Mr. Frank wants to talk about zipper injuries to the schlong. So let’s talk. Here is how it works. If the manufacturer sells a dangerous product and the danger could be eliminated by design, then the manufacturer is responsible. After all, it is up to manufacturers who profit from selling products to take steps to avoid needlessly injuring consumers. I assume even the Manhattan Institute agrees with that basic principle, but maybe I am wrong.

So if a manufacturer uses razor sharp edges on his new, hip jeans, and Mr. Frank slices off his Johnson, he can sue. I imagine every guy would agree that such an injury would be horrifying…. But apart from the sensitive topics, the consumer–here Mr. Frank–must prove that the product was dangerously defective, usually by design. Mr. Frank knows this. He simply does not like that such cases exist.

Worse, he chides Saladoff and those of us who dare to call out corporations for misconduct by misstating what we must do to prove our cases. It’s not enough to show that 700 or thousands are injured while using a product. While that fact is interesting, and it may bear on what the corporation should have known, it does not prove the case. The 700 instances in McDonald’s coffee litigation was part of the factual showing, but if that’s all that was proved, the case would not have gone to the jury.

Two things gall me about the Manhattan Institute and their ilk. First, they invariably think they know better than juries. Ted Frank is a smart guy. I mean that genuinely and in a non-snarky fashion. He is accomplished, well-educated and highly credentialed. That said, he is not smarter than a jury. No single person is.

I say that as someone who has won and lost case. I’ve won very big verdicts, and I’ve lost in heartbreaking fashion. But at the end of the day, I am prepared to accept the judgment of the jury. That was the genius of our founders. It is what is enshrined in the Seventh Amendment. In my experience, those who try cases on both sides recognize the wisdom of the jury. This is true of my colleagues who represent corporations in the courtroom.

Along those lines, I would be surprised if Mr. Frank or anyone else at Point of Law has much jury trial experience. (Open invitation: Please let me know if I am wrong.) But even so, they are smarter than juries?

I said there were two things that galled me. The second is something I’ve seen many times in the decades in my law practice. A person is injured,  a consumer is wronged, a family is harmed. The injury may be a result of something as simple as a dangerous, inattentive driver causing a wreck, or a corporation wrongfully taking money to which it not entitled. Or it may be something as complicated as injury from toxic chemicals. The injured person often looks at me and says, “Well, I’m really injured, not like so many of those people you hear about….” I try to remain neutral and gracious and ultimately attribute it to an old adage: Comedy is when you slip on a banana peel; tragedy is when I slip on a banana peel.

So all this is the long answer to Ted Frank and why from time-to-time he gets push back from me on Twitter. Ted is obviously a true believer. But he is wrong to believe that he knows better than the founders who gave us the Seventh Amendment and more than a group of jurors who listen to the evidence and render decisions.


*Was going to provide a link to Ted Frank’s Twitter feed, but apparently he blocked me. Sadz, as the kids say.

Update: Le Cordon Bleu Portland/Western Culinary Int. and Career Education Corp case on hold for appeal

From a recent blog comment and email, I realized that we did not update our blog on this case. The Court of Appeals denied our motion to dismiss. As a result, the case is on hold, and the January trial date is off.

The news came while I was in trial on Bixby v. KBR and in the tumult of that case, the need to update readers here fell of my radar. My apologies to all who are waiting for news.

The Court of Appeals’ denial of our motion to dismiss means that we must go through the long process of appeals. My guess is that we’ll have the case briefed and argued this year, but a decision and final return to the trial court might not happen until 2014 or even possibly later.

The appeal is over whether some people in the class–those who signed later enrollment agreements–must go to arbitration. It’s particularly aggravating because approximately half the the class who signed early versions of the enrollment agreement are not impacted by the appeal.

We are disappointed, of course. This early appeal appears to be part of Career Education Corp’s plan of delay. While the case may be delayed, the legal team remains fully engaged and committed. Our day will come.

Please let us know if you have questions. But keep in mind that we don’t provide legal advice via blog comment.

David Sugerman

For those facing collections efforts from Sallie Mae for Western Culinary Inst./Le Cordon Bleu Portland tuition

So we’ve been hearing a lot from class members about Sallie Mae efforts at collection of debts arising from loans for those who attended Western Culinary Institute and Le Cordon Bleu Portland who are part of the class action against those defendants.

If you are in that situation, please understand that our role is limited to serving as class counsel to seek recovery in the current case, Adams, et al. v. Western Culinary Institute, et al., State of Oregon, Multnomah County Circuit Court Case No. 0803-03530. That said, I took the liberty of drafting a letter that class members who are facing collection may want to send.

I’ve pasted the letter below, but there is some important information:

1) We cannot and are not representing class members on collection issues. If you are in a collection situation, I strongly urge you to to confer with separate counsel in your state about your rights and remedies. If you do so, please provide them with information about this lawsuit.

2) This letter is specifically intended only for the use of those members of this class who are facing collection claims from Sallie Mae. It is not meant for generic use. If you are not part of this case, use of this letter might create very serious problems for you. I strongly suggest that you confer with counsel about your own unique circumstances.


I understand that you represent Sallie Mae and that you are attempting to collect student loan debts related to my attendance at Western Culinary Institute, now known as Le Cordon Bleu Portland. I am writing to make clear that I dispute the debt.

I borrowed money from Sallie Mae to attend the school, and in doing so signed an agreement that included a holder in due course provision. As part of a class action pending in the State of Oregon, Adams v. Western Culinary Institute, State of Oregon, Multnomah County Circuit Court Case No. 0803-03530, I am pursuing claims for tuition refunds based upon fraud and violations of the Oregon Unlawful Trade Practices Act. The defendants are Career Education Corp. and Western Culinary Institute/Le Cordon Bleu Portland.

Sallie Mae has no right to seek collection of a debt incurred by fraud. If you persist in your collection efforts, I reserve all rights, including the right to make a counterclaim and seek class adjudication of Sallie Mae’s rights to collect on this disputed debt.

You may be aware that the Federal Trade Commission recently indicated that lenders may be held financially responsible for monetary damages to the extent the underlying seller—here Career Education Corp.—is unable to satisfy its obligations.

If you have questions about the underlying case, I suggest you contact lead counsel, David F. Sugerman, 707 SW Washington St., Suite 600 Portland, OR 97205; 503.228.6474.


Moving to dismiss the appeal brought by Career Education Corp and Western Culinary

For those interested, I’m posting our recent motion to dismiss and motion for reconsideration in Surrett v. Career Education Corp., our consumer fraud class against Career Education Corp for Western Culinary Institute/Le Cordon Bleu Portland students.

We had cleared all pretrial motions and were steaming toward our January trial date when the Career Education Corp defendants filed an appeal of a ruling made by the trial judge. The problem with that is that if the appeal is allowed to go forward, we will lose our trial date. We’ve asked the Court of Appeals to dismiss the appeal. Barring that, we’ve asked the Court to release those class members who aren’t affected by the appeal from the holding pattern so that they can go to trial.

Lots more about it than all that. But that’s the short version.

It’s dry and complicated, but it gives those who are in the class some idea of what the legal team is up to. Here it is in PDF: Plaintiff-Respondent Surrett’s Petition for Reconsideration and Motion to Dismiss Appeal

We will update when we hear from the Court of Appeals. Meanwhile, know that the fight goes on.


Oregon Qarmat Ali vets’ case against KBR headed to trial

Today, Judge Papak issued another summary judgment opinion denying KBR’s motions for summary judgment on fraud and negligence. Here is a PDF copy: 512 – opinion & order – fraud and neglig It’s a long opinion, but it provides a really clear view of some of the information that has come out during the course of our work on behalf of the Oregon Army National Guard veterans.

Trial begins October 9, 2012. We are looking forward to our day in court.

David Sugerman

Update: Consumer fraud class action against Career Education Corp and Western Culinary

This is a longer update on our case against Career Education Corp. and Western Culinary Institute/Le Cordon Bleu Portland. It’s an update for those following the case, including members of the class.

Brian Campf and I were back in court Friday. Judge Baldwin issued a number of rulings from the bench.  As well, Career Education Corp. defendants are trying to appeal Judge Baldwin’s previous decision denying their motion to compel arbitration of the claims of roughly half of the class. Let’s take these dense things one at a time.

1) The Friday motions and rulings: Judge Baldwin heard and decided three motions on Friday. First, he granted in part our motion to compel production of discovery from an investigation report of Career Education Corp placement practices that had been disclosed earlier. This is a win for the class. We’re looking forward to reviewing this information.

The class lost two motions filed by Career Education Corp. Judge Baldwin granted in part a motion to allow the Career Education to do a survey of class members by mailing a questionnaire to members of the class. We opposed only because we believe that the form of the survey was confusing and potentially misleading. Judge Baldwin limited the questionnaire but has allowed them to go forward. While we disagree with Judge Baldwin’s ruling, we respect his authority and will cooperate with the process so that we can move forward to trial.

Judge Baldwin also granted a motion that removes approximately 300 people from the class. The 300 or so stopped attending and did not withdraw and thus were dismissed for attendance or academic reasons. The Court concluded that they should not be part of the class. We argued against the motion. While we disagree with this ruling, we recognize that Judge Baldwin has authority to make the choices that he made. As part of the process, those who are no longer part of the class will be sent notice informing them that they are out.

2) The new appeal: We learned on Friday that the Career Education defendants are appealing Judge Baldwin’s prior ruling denying their motion to move approximately half of the class into individual one-case-at-a-time arbitration. We won that argument and believe that Judge Baldwin correctly denied their motion. At the same time, the Career Education defendants sought to stay proceedings in the trial court while the appeal goes on. Appeals can take years, so it’s pretty apparent that they are simply trying to avoid our January trial date.

We’re in the process of moving to dismiss the appeal. We believe that they are not allowed to appeal the order in question. This is a technical, dry area of the law involving concepts of procedure and jurisdiction. We remain optimistic that the appeal will be dismissed and that we will stay on schedule. But even if the appeal goes forward, we will fight there too. So the bottom line on this is know that we are continuing forward, that we remain confident, and that Career Education Corp. can hire more lawyers, file more motions, and try to delay more. But they will not shake us off this case.

3) Parting thoughts: One of the things about the cases that we handle is that I have the luxury of choice. I will not take on a case unless I believe that it is right, and I will not pursue a case unless I believe it is important. But once we commit, we dig in. Stonewalling only makes us more determined. And so we dig deeper. And so we go on.

I’ll update when we have more news. By the way, we do more frequent and shorter updates on our major cases on Facebook. You can get that news if you are a Facebook user by liking us here. When I post on this blog, I generally leave a note on the FB page, so it’s also an easy way to keep up with this blog. As well, you can always follow me on Twitter @DavidSug, though that’s more of a personal account. I don’t always self-censor, so it’s definitely not for everyone.

Thanks for your continuing interest in this case and our work. We’ll let you know when we know more.


From the trenches of the justice system: Thoughts on Oregon elections

It happens every election cycle that non-law friends and others may be casting about on races on which they may not be familiar. Sometimes I weigh in–especially when bad ballot measures or obvious choices make me speak.

I wear my biases on my sleeve. I represent consumers in hard, complicated cases in the civil justice system. I am the guy who jumps in to represent Oregon veterans’ on their toxic injury claims against KBR. Ditto when Comcast illegally bills late fees or when trade schools sell students a bill of goods and a sack of debts.

There are a few races that affect Oregon that may not be evident to a lot of voters. I’m leaving out the races on which I have no expertise. Portland mayor, for example, is a toss up to me, but I don’t claim any particular insight, so no one should care what I think.

Judicial races, the Attorney General race and Secretary of State are areas that impact the justice system in ways that may not be apparent. So for readers, friends, and web surfers, here is my thinking.

Oregon Supreme Court: Position 3 is a contested race between three highly-qualified people. Judge Sercombe sits on the Court of Appeals. Nena Cook is an attorney in private practice. Judge Richard Baldwin sits as a trial judge in Multnomah County. A disclaimer. All are qualified. All bring integrity and excellent skills to the race.

That said, Dick Baldwin is the clear pick for those of us concerned about individual access to justice, consumer protection and straight out common sense.

I have appeared in front of Judge Baldwin as an attorney for years. I have won issues in front of him, and I have lost them as well. That is beside the point. His demeanor and commitment to the justice system never seem to waiver. I’ve watched him sentence criminal offenders. I’ve seen him give measured and careful consideration to the plight of real people. That’s about all you can ask for in a judge.

Before he went on the bench, Judge Baldwin worked as a legal aid lawyer, representing people of modest means needing access to the justice system. That seems to color his work on the trial court bench. What he brings to the Supreme Court is a lot of experience in the trenches as a trial judge and legal aid lawyer. The Supreme Court needs former trial judges to balance those from other backgrounds.

The other contested judicial race is Court of Appeals Position 6. I know both Tim Volpert and Jim Egan. I do not know Allan Arlow, the third candidate. Of Tim and Jim, I can say both are capable, honest and good people. But here again, I think the obvious choice is my old friend Jim Egan, a trial judge from Linn County. The trial judge experience is important here again. So is a non-Portland perspective, as he comes from Linn County. Jim is another common sense guy. Before he went on the bench he represented injured people and did so with clarity and compassion. Like Dick Baldwin, he has great real-life experience that translates well on the bench.

Attorney General The other heavy race is Attorney General. Both Ellen Rosenblum and Dwight Holton are highly qualified. Both have strengths, and I think we will be fine no matter who wins. I like Dwight’s energy a lot. That said, I am voting for Ellen Rosenblum.

The biggest is that Dwight’s commitment to Measure 11 (mandatory minimum sentences) is a huge deal breaker for me.

The advocates of mandatory sentences mean well. They truly believe that locking up criminals for long periods of time make us safer. For complicated reasons, I do not believe that. The short version: addiction, domestic violence, criminal system dysfunction cloud the penal model. The advocates of mandatory minimum sentences work on an oversimplified version of the problems.

I can’t sit silently while we sacrifice the State treasury for prison building at the expense of schools, roads and healthcare. It’s taken me a while to make up my mind on this race. To his credit Dwight Holton will do great things if he gets the nod, so I’m not worrying on this one. Ellen’s comments about mandatory sentencing (vaguely: need to rethink), medical marijuana (enforcement not a priority) or the death penalty (opposed personally, but as a judge handed it down) reflect views that I share, but I’m not sure whether she will push and, even if she does, how much room there is for reform. So worst case is that we remain at status quo with either of them.

The other question and priority is straightening out the Oregon Department of Justice. I’m not sure who is better suited for an overdue housecleaning, but it seems like we need a real adult to lead DOJ from its current problems to the pro-justice entity it should be.This may well be a toss-up. I can’t tell.

Secretary of State. This is a no-brainer. Kate Brown. Okay, I’ll admit that I’ve been a Kate fan since we were in law school together. Still, she’s the real deal, and we’re lucky to have her overseeing elections, ballot measures and the like. We need her. Enough said.