Bixby v. KBR–Oregon Congressional Delegation members push back on KBR and Department of Defense

The Oregon Qarmat Ali Vets’ case, Bixby v. KBR, continues. A group of 12 of these veterans won a stunning $85 million verdict against KBR for toxic harms suffered in Iraq at a KBR- contaminated site. After the verdict, and while the case was on KBR’s slow-track appeal, the U.S. Supreme Court issued, Walden v. Fiorean opinion in an unrelated case that changed the rules of jurisdiction. When the case came before the Ninth Circuit, it remanded the case because jurisdiction was improper.

And then KBR filed a claim for costs against these veterans, seeking approximately $850,000 from 12 sick vets who provided KBR with security. KBR got paid handsomely for its war-time work on a no-bid contract. KBR is seeking to have the United States indemnify it for all costs in these lawsuits. And even so–after winning on a technicality–KBR is now seeking to bankrupt these vets.

There are countless horror stories involving our vets. And this is one more. They served. They were sent. They did their jobs. They sacrificed. And now this.

It is perhaps too much to hope that anyone will care. And that is the point of this post. Thanks are due to members of the Oregon Congressional Delegation: Senator Wyden, Senator Merkley, Rep. Blumanauer, Rep. Schrader, Rep. Bonamici, and Rep. DeFazio did Oregon proud when they wrote this  Ltr Or Cong to DOD 15 July 2015 letter to the Department of Defense, blasting KBR and calling on the Department of Defense to take over these cases and resolve them equitably.

“These veterans deserve better***.”  I couldn’t agree more.

-David

BP ARCO class action: A straight-up win for consumers

On Friday, January 31, 2014, the jury returned its verdict in favor of BP Oregon ARCO and am-pm minimarket gas purchasers. The jury found that BP recklessly violated the Oregon Unlawful Trade Practices Act. The 2.9 million class members are each entitled to make claims for $200. Media reports are here (OregonLive), here (KOIN-6), and here (KATU-2 pretrial)

Yes, that is a $580 million result. It is fair to say we are pleased. And proud.

We’re getting a lot of questions. I’ll try to answer some here.

So what’s next?

We are due back in court on March 7 to discuss the next round of proceedings. In the near future, we’ll start a claim form process. It’s really important that you file a claim form once the claim process opens. We do not know yet when that will happen, but we’ll note a number of resources for you here.

How do I stay informed?

We’ll continue to post updates here on this blog. We also add updates on our Facebook page. If you’re a user, like us there, and you’ll get updates and links back to the longer updates here.

You should also register with the official information page to receive official update information.

Do I need to take any action to protect my rights?

If you meet the class definition, you do not. We don’t know what requirements the court will set to prove claims. If you have access to receipts or bank records showing a gas debit card purchase with a transaction fee at Oregon ARCO or am-pm stations, it would be wise to save those documents. It may help you prove your claim.

When will consumers see their money?

Good question. BP has announced its intention to appeal. While the claim process could start as early as March (or maybe later), an appeal could string this out for years. That is why registration is important.


A few parting thoughts

We are deeply appreciative of the service provided by the jurors who served for three weeks in the trial in front of Hon. Jerome LaBarre. The entire case shows that a small group of determined consumers can take on a corporate giant like BP and have a fair trial in Oregon.

Further updates?

Well sure. When we know more, we’ll post it.

David Sugerman

Economic Fairness Oregon weighs in on ending the consumer fraud exemption for insurance companies

Nice piece here at Blue Oregon from Economic Fairness of Oregon relating to the need to end the consumer fraud exemption for insurance companies. Disclosure: When it comes to EFO, I’ve long been an unabashed  fanboy–they do tremendous pro-consumer work.

HB 3160-A is pending in the Oregon Senate. To my way of thinking this isn’t a blue or red issue. Last I checked, insurance companies don’t discriminate based on political affiliation. They hose the D’s and the R’s, those who live in the city and those who live in the country, the rich and the poor. The things that divide us simply do not matter when it comes to insurance companies taking advantage.

Let’s hope our State senate is listening to EFO and constituents who are pushing on this issue. It’s time to end the special break for insurance companies. Like every other business, they should be covered by Oregon consumer fraud laws.

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.

Twitter from the jury box in Brooklyn

My sleepy Monday started with full-on Twitter commentary emanating from a courtroom in Brooklyn. It seems that Ryan J. Davis (@RyanNewYork), a Brooklyn social media-active guy had gotten pulled into court for jury duty.

Mr. Davis was live-tweeting voir dire–AKA jury selection–from the court room. That’s to say, he was broadcasting his observations on Twitter while sitting on a case. He explained:

Ryan J. Davis

@RyanNewYork Ryan J. Davis

“Nobody had told me not to tweet, everyone can see me clearly on my phone.”

Some of his tweets were amusing and harmless, but at least a few crossed the line, including one regarding the merits:

Ryan J. Davis

@RyanNewYork Ryan J. Davis
“Apparently the woman suing the nursing home has been in like 6 accidents and is always suing. Raises some flags.”

And then there was this somewhat ominous appraisal of one party’s attorney:

Ryan J. Davis

@RyanNewYork Ryan J. Davis

“Plaintiff’s attorney said “you won’t see me on any late night tv ads'” I don’t believe him.”

Ryan, being a skilled social media user, quickly saw that a small group of trial lawyers were talking about what he was doing. He was eventually told by the judge that he should not be posting on Twitter, and he wondered whether one of us had complained to the judge.

Through the limited space of Twitter posts, I explained that I had not and promised to elaborate on the complicated problems of jurors and social media.

So now we’re caught up, and Ryan this is for you.

Our civil justice system stands and falls on the jury and the integrity of the process. The injured woman sought access to justice because she believed that the nursing home should be held accountable for maintaining its facility in a way that was safe for those entering the business. Whether she is right or wrong, injured or not, it is up to the jury selected to hear the evidence and render a verdict. My worry is that Twitter and social media disrupt that process.

You engaged in the very human process of forming impressions on things that mattered (the woman’s credibility based upon someone’s claim that she had made prior claims) the credibility of her counsel (based upon his appearance and conduct). You did that without the benefit of actual evidence.

I imagine that happens to many potential jurors, so you’re still in an unremarkable position. But then those are broadcast to tens of thousands of people who follow you and beyond. Until earlier today, I did not follow you; I only picked up on the stream because someone flagged it for me.

So we’ve taken the initial impressions that aren’t based on evidence and broadcast them outward from the courtroom. I imagine some of your 30,000+ followers responded, retweeted, etc. and next thing you know the merits of a case in Brooklyn are grist for the social media mill.

Now if it seems like I’m picking on Ryan, that’s not my intention. Assuming Ryan accurately heard all and correctly tweeted the lack of instructions regarding use of Twitter, the problem is upstream with the court and counsel. But it is a problem.

It goes back to the foundation of the civil justice system–the jury. The parties need to know that their case will be tried on evidence in the courtroom. Put another way, if I am trying that case, I know how to put on a case, challenge through cross-examination witnesses who are adverse, and analyze and argue the evidence. But I can’t argue with information and influence that enters the jury room through Twitter and other social media.

Some in the social media world may say, “Tough luck, pal. This is the new world; get used to it.” To which I say, “Not without a fight.” Because the civil justice system is what levels the playing field between oligarchs, corporations and consumers. Do you have any doubt about a large, institutional corporate nursing home’s chain ability to influence via social media jurors who are willing to listen during trial? Do we doubt for a moment the power of protected corporate interests to exploit these channels?

So at the risk of sounding pompous (or worse), we need to figure out how to divorce social media from the jury box. To do otherwise is a loss for consumers who count on the integrity of the civil justice system as a uniquely American means of leveling the playing field between the oligarchs and the rest of us.

Ryan, if you catch this, thanks for the teachable moment. Hope that I’ve explained my concerns and the stakes adequately. Happy to discuss in detail if this is of further interest.

David

 

 

Sen. Santorum and the hyporcisy of damage caps

I’ve heard so much about the Santorum surge and how he is a man of principle–a values candidate, a different kind of politician.

Senator Santorum has been part of the echo chamber for caps on damages in medical injury lawsuits. He hits all the rhetoric about how caps are necessary because of frivolous lawsuits, rising health care costs, etc. According to Senator Santorum, Congress knows better than a jury the value of all patient injury cases, and no patient should ever recover more than $250,000 in non-economic harms when the defendant is a doctor or a hospital.

Yes, that includes the drunken doctor botching a surgery, sex abusers in the exam room, and hospitals that dump patients on the streets. Never more than $250,000 because Senator Santorum and Congress know better than a jury.

So imagine my surprise when a colleague in New York, Andy Barovick (@AndyBarovick), posted a link on Twitter to a news report about Senator Santorum’s wife’s malpractice claim against her chiropractor in which she sought $500,000 in non-economic harms. For those playing at home, that’s twice the amount of the cap Senator Santorum and Congress want to impose on the rest of us.

Here’s the corrected link to the news report (second video)Well worth watching.

Senator, On the off chance that you or your staff are reading this: Shame on you.

Update 7 Jan 2012: Law blogger, Eric Turkewitz, New York Personal Injury Law Blog, takes a different approach in defense of Senator Santorum here. While he makes a good point that Senator Santorum is not responsible for his wife’s choices, he misses the mark. Senator Santorum participated in the case, testifying as a damages witness. In the linked interview (above), Senator Santorum claims that the verdict included a substantial amount of economic damages that would not be subject to the cap. The news report debunks that excuse and lie. At bottom, Senator Santorum knows from personal experience that the proposed cap is wrong because one size justice does not fit all. We need to trust juries to do what is right and not put in Congress’s hands the ability to determine damages in all cases.

On Veterans’ Day, let’s hold KBR accountable

So here is what is happening in my law office today, Veteran’s Day, 2011: Kevin Stanger is giving a deposition in Bixby v. KBR, the case in U.S. District Court here in Oregon where veterans dare to call corporate giant KBR to account.

Mr. Stanger is one of the vets sickened by exposure to sodium dichromate at the Qarmat Ali Water Treatment Plant. The Vets dare to demand an accounting and justice from KBR.

In 2003, Mr. Stanger was in the command unit of the Oregon Army National Guard. He was one of the many soldiers who relied on KBR to be straight about the dangers at Qarmat Ali. KBR failed to do its job, and now Mr. Stanger and many of his brothers in arms are sick.

The vets’ depositions are grueling. Each vet sits in our conference room for a day. answering KBR lawyers’ questions under oath. I’ve had to apologize to the guys–it’s a lousy process.

Even so, there is some beauty and irony in Mr. Stanger’s deposition today. Our soldiers swear to defend and protect the United State Constitution when they take their enlistment oaths. When they enlisted, I doubt any of the Qarmat Ali vets thought for a moment that they might be the ones who needed their constitutional rights to trial by jury. Thankfully, that right endures because of each veteran’s commitment to the constitution.

While Mr. Stanger is giving his deposition, I am head-down working on our opposition to KBR’s latest motion to have the case thrown out of court. The Vets’ legal team’s hard work on this Veterans’ Day is all that we can give toward repayment of the vast debt owed to our veterans. It is not enough, of course, but I hope that it is a modest start.

 

Fighting the robber barons: Illegal debt card charges for overdrafts

News today that West Coast Bank reached an agreement with the FDIC relating to its “courtesy coverage” overdraft protection. According to Brent Hunsberger’s report in The Oregonian, the issue was ineffective opt outs. But there is a bigger problem with Oregon banks ordering transactions in a way that triggers a cascade of overdraft charges.

I’m particularly interested in this area and looking at various cases. If you have had multiple overdraft charges assessed by Umpqua Bank, I’m interested in talking to you about the problems.

While it’s good that the FDIC stepped in, I am concerned that they did not fully take care of consumers who were affected by West Coast Bank’s overdraft charges. Still, enforcement is essential. Failing that, those of us who dare to fight the robber barons provide the next best thing.

Feel free to contact me if you have a story about Umpqua or any other Oregon bank that is overcharging on overdraft fees.

David Sugerman

At the tipping point: Have our rights to trial by jury been taken away?

Last night’s HBO premier of Hot Coffee, The Movie provided a great summary of all the ways in which the U.S. Chamber of Commerce, large foreign corporations, and political operatives have banded together to end the right to trial by jury. Filmmaker Susan Saladoff did a masterful job of showing how deliberately falsified talking points, loaded memes, anti-consumer legislation, court packing, and forced mandatory arbitration have been used to deprive consumers of their rights to trial by jury.

Things have only gotten worse since production of Hot Coffee. As I have noted previously, the U.S. Supreme Court rendered two pro-business/anti-consumer opinions this term. This one makes consumer class actions even harder to maintain, and this one makes forced mandatory arbitration even harder to avoid. The picture painted by by Susan Saladoff’s brilliant film gets more finely defined by the Supreme Court’s recent term.

At home, I watched Hot Coffee with my beloved, who has been my biggest supporter for all of the years I have struggled to do what is right for consumers in our civil justice system. She also took me to task over language in my recent blog posts–she’s something of a message genius. She points out, correctly, that I must stop using the language and the memes of the corporate shills who seek to corrupt the civil justice system.

Okay my beloved. You win. I will listen to your wise counsel. So no more use of their memes, talking points and phrases.

Instead, let’s focus on what they have done. Through a deliberate campaign hatched by the cynical pro-corporate strategists, our precious right to trial by jury hangs on the edge.

They cannot accept a justice system that grants consumers and ordinary citizens the power to call corporate wrongdoers to account. They cannot allow the rest of us to have access to justice.  By a cold and deliberate strategy, they have simply chosen to nullify the Seventh Amendment, in order to eliminate consumers’ rights to trial by jury.  The question becomes whether we allow this to happen or fight back to protect our rights.

One of my heroes, Erin Brockovich, pointed out long ago that the problem with giving up constitutional rights is that they are gone forever. The right to trial by jury protects us from government abuse and from corporate misconduct. It looks to me like we are in fact tipping back, and consumers are beginning to to understand the importance of these issues. We can only hope.

 

The Rakofsky Standard

I missed the initial Rakofsky story in the Washington Post because I was unplugged on vacation. Short version, via Twitter friends and the internet, is that a young attorney in New York represented a man accused of murder in a Washington D.C. criminal case. There were a few issues with the representation from the get-go. Mr. Rakofsky had apparently never tried a case before. And he was not admitted to practice in Washington D.C.

Things did not improve during trial. Mr. Rakofsky apparently did not understand the technical requirements for admission of scientific evidence. As a result, he could not get into evidence important information about the accused’s use of drugs. The case ended in a mistrial. Mr. Rakofsky mistakenly believed that was a good thing. It was not, as his client faced re-trial on the same very serious charges.

Going from trying no cases to handling a murder case is a bit like deciding after medical school that you are now qualified to perform coronary bypass surgery. As with performing surgery, trial of cases is a skill best learned slowly with tutelage. You start after training with small and easy matters–traffic court, for example, or misdemeanors, or small-scale property damage claims–and then you build up over time.

As licensed professionals, attorneys have certain responsibilities. Here is a simple rule: Attorneys may only accept employment on matters on which they are competent.

Mr. Rakofsky did not understand the standards for admission of scientific evidence–here toxicology. By his own account, he offered key toxicology evidence, which the trial judge rejected. Mr. Rakofsky apparently did not completely understand the rules of scientific evidence. To be fair, they are technical and sometimes hard to understand. But that’s why young attorneys need to handle small and simple cases before they can try complicated high-stakes matters.

Various law bloggers correctly picked up on Mr. Rakofsky’s shortcomings and, more important, what the story says about internet marketing of legal services. A nice collection of of blog posts can be found here at The Trial Warrior Blog.

A wiser young lawyer would have treated this whole sordid affair as a time to re-think. Sadly, Mr. Rakofsky has not yet come upon wisdom. Instead, an attorney acting on his behalf sued The Washington Post and various law bloggers, including bloggers Antonin Pribetic (The Trial Warrior Blog), Scott Greenfield (Simple Justice), Jamison Koehler (Koehler Law Blog), Mark W. Bennett (Defending People), Brian L. Tannebaum (My Law License), Carolyn Elefant (My Shingle), Eric L. Mayer, Above the Law, the American Bar Association, ABA Journal. Sorry to all omitted from the list. The complaint, in what has been labeled Rakofsky vs. The Internet*, is a triumph of ridiculously poor lawyering.
I have not counted, but I am told there are 74 defendants.

The complaint admits to some of the goofiness. It sets out the toxicology problem I noted above. It alleges irrelevant allegations. It implicitly posits a standard of practice that I think is fairly labeled as The Rakofsky standard.

There is a glaring problem from the outset. Scott Greenfield, Mark Bennett and Antonin Pribetic point out that young Rakofsky and his Rakofsky standard plaintiff’s counsel do not understand New York jurisdiction. They have sued out-of-state defendants and even the Canadian Trial Warrior in New York on a defamation claim. A problem:  New York long arm jurisdiction does not apply to defamation claims.That likely spells quick ending for all but the New York defendants.

The case has generated a lot of well-deserved ridicule on Twitter and from law blogs. As a casual observer, I can only laugh at the young man and his current counsel. They have taken a bad experience and compounded it by a factor of 10 by filing this case. While the Rakofsky standard is generous, I am betting that their future work on this case may violate it.

For my Twitter friends and the Rakofsky 74, I have volunteered to serve on the defense team. True, I have never handled the defense of a defamation claim in my 25 years of experience. As well, I am not admitted to practice in New York. But under the Rakofsky standard, I am totally competent to try their case.

___

*Scott A. Greenfield a New York criminal defense lawyer who writes the pretty damned amazing Simple Justice law blog claims credit for having coined the phrase.

The other blogs listed above contain some of the best damned law writing out there. Even though I do not practice in Canada, I regularly read The Trial Warrior Blog. Ditto for Bennett at Defending People and Tannenbaum at My Law License work and Simple Justice. The latter three focus on criminal law but consistently hit deeper and more important issues in the justice system.