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

KBR’s concealment of discovery

Yesterday in our Qarmat Ali Vets case against KBR, we filed a motion for sanctions. The filing is here (pdf). The Memorandum (toward the bottom) lays it out in detail. Turns out that KBR concealed critically-important information about the Qarmat Ali Water Treatment Plant and its extreme level of contamination. They knew about that in 2002 or early 2003, long before Oregon Army National Guard veterans went into the site.

Today’s Oregonian reports the story here, including rather colorful big words (“histrionic” and “hyperbolic”) bandied about by lead counsel for KBR. One wonders why KBR hurls big words and accusations when they simply could have avoided this problem by coming clean.

I suppose we could respond in kind. Not going to happen because not much is served by doing so. For readers who might wonder about the lack of response, let me just say that this is neither the time nor the place. We are scheduled for our first trial in Oregon in October. Fair to say I am looking forward to it. I hope that’s not too histrionic or hyperbolic.

Mom called

I’m at home this evening with two computers going side by side. On the desktop, I have a  several thousand page PDF of Army FOIA documents open, as I wade through KBR discovery. My laptop is up with a running digest of the interesting tidbits.  It’s my own odd-duck style of learning the case.

The phone rings, and I answer it absentmindedly.

“David Sugerman?,” asks the woman on the other side brightly.

“Yes?”

She runs on without a pause about how she’s calling to thank me for my great work and wondering whether she can help. Can she send money, or bake cookies, or weed my yard?

I stammer, “Who is this?” I have the presence of mind to not ask her how she got my number or why she’s calling a stranger out of the blue.

She chuckles lightly, “I’m just a Mom.”

“And why are you calling?”

“Because your work makes Portland great. And besides those guys are killers.”

Might be the exhaustion, or maybe it’s that I’ve lately been reflecting on my mother and wondering what she would have said about her son’s latest work. But for whatever reason, I was practically moved to tears.

Turns out that she had collapsed two people into one. She thought that Stu Sugarman, a Portland civil rights and criminal defense attorney, and I were the same person. It happens now and then…. I corrected her. And she STILL wanted to help and to send money. She wondered what she could do.

So this is what I said. “Do something great that you think matters and then drop me a line to tell me what you did.” She liked that.

A few thoughts before I go back to the mind-numbing document review.  There are some days when I know that I am blessed or–if you prefer–profoundly fortunate.  This is one.

So Mom, your call was a boost. Hope you don’t mind that I’m putting it down here. I imagine doing so will help me remember this moment as we trudge on toward trial.

Thanks and love-Just a son

Toyota cover-up much worse than the acceleration problem

The Toyota acceleration problem has gotten a lot of press play. Most recent is yesterday’s story about a Prius that went berserk on a California interstate.  Looks like the engineering staff at Toyota doesn’t yet have this thing corralled.

One of the interesting things about the work I do representing consumers is that I’ve learned that juries are often fairly forgiving of institutions and mistakes. Here is what I mean. In court when businesses, hospitals, or government agencies admit to mistakes, my experience is that jurors are very understanding.

On the surface, it appears that Toyota is taking this, “mistakes were made” approach to defending the sudden acceleration cases.  But underneath is a story that so far has not gotten much play.

Apparently, Toyota has known for years about the problems with its cars. Not a big surprise.

But much worse, Toyota may have hidden the defects and may have violated all sorts of court rules and orders by hiding evidence and stonewalling in cases.  At least that is what one of Toyota’s former lawyers claims.

If this is true and if the story gets traction, Toyota is in major trouble.  Apart from sales issues, their liabilities will go through the roof when–not if–these Book of Knowledge documents are ordered produced.  Seems like their only hope is to completely discredit their former counsel.  I suppose it’s possible that everything he says in the linked CNN interview is fiction. But I doubt it.

The linked story talks about Toyota’s trade secrets.  Toyota thinks it doesn’t have to disclose those in injury cases. Toyota is wrong.

But as long as we’re on the subject, here is a trade secret from a consumer-side lawyer who toils in the trenches. Representing an injured consumer in a  design defect case is tough.  It’s hard to communicate the technical parts of the case. Leading the jury through the thicket of complexity to a just result for the injured consumer is a major challenge.  On the other hand, when that complicated design defect case becomes a case about hidden or destroyed evidence, the business is very likely in big trouble should the business choose to go to trial.

Oregon injury claims-What Oregon consumers need to know (Part 2)

This is the second part of a three-part series on what Oregon consumers need to know when dealing with injury claims. In case you missed it, here is  Part 1 . And should you need more information, here is Part 3.

So as I noted in the first post, if you need this information for yourself or a loved one, you’re in a tough spot. Here are a few more  things that consumers need to know about Oregon injury claims: 1. Most  cases settle; 2. The ability and willingness to go to trial matters; and 3. We have to learn to live with uncertainty.

1. Most cases settle.

The reality is that only a few cases go to trial. The cases that go to trial tend to fall into two different categories. The first group involves cases in which one side has mistakenly evaluated the case.  The second category include cases in which settlement is too costly.  Let’s look at both.

Examples of the mistake in evaluation often occurs because one side doesn’t understand the facts or–perhaps–one side is unable to accurately evaluate the strengths and weaknesses of their case.  When, for example, one side doesn’t know about a key witness or document, they may incorrectly evaluate the case and go to trial.

Some cases simply won’t settle because one of the parties won’t agree. Sometimes that’s because of emotion. Sometimes it’s rational, but in any event the exceptional cases go to trial. Examples of this type of case include situations in which a corporation knows that settling this case will open them up to many others. So they fight on.

2. The ability and willingness to go to trial matters

Some lawyers are afriad of trial, and many lack the experience and resources to successfully try cases. While it looks easy on TV, trial demands special skills. To succeed, a trial attorney must be able to succeed in very different areas all at once. The lawyer must be able to argue the law to the court. The attorney must be able to talk to juries. The lawyer must be able to question and cross-examine witnesses.  These are learned skills that take years of study and experience to master. This is espeically true when a case involves complicated technical questions, tough legal issues, or sad and soul-aching injuries.

The insurance industry tracks lawyers, and when they don’t know someone, they’ll ask questions of their sources. Does the consumer’s lawyer try cases? How well? When a lawyer won’t go trial, the insurance adjuster knows that the case can be settled for much less because there is little risk of a large verdict. All this means that the lawyer who is prepared for trial and capable of trying the case puts their client’s case in the best position.

The willingness and ability to go to trial is especially important when a case won’t settle. I used the example of the corporation that can’t settle a case because of all the others out there from the same misconduct. They know that some lawyers won’t go to trial. So if they delay and refuse to pay, perhaps the consumer will get tired or the attorney–who never really intended to try the case–will quit. Either way, the corporate defendant has outlasted the consumer. That’s why willingness and ability matter.

3. Living with uncertainty

It’s been years since I rode a roller coaster. But the thing is that every roller coaster has that thing toward the end. You think you’re at the end. Maybe you can even see the station up ahead, and then–wham!–out of nowhere you drop and curve and go again. Likea roller coaster, the case isn’t over until the car stops and the bar releases you.

Those of us who represent consumers can generally predict timelines for cases. But how quickly a case goes depends on a number of things that are outside anyone’s control.

Case value is also a challenge. At the beginning is impossible to accurately value a case because the attorney doesn’t have all of the information. Over time, information comes into focus and we narrow it down and refine the value as we learn more.  It all takes time. At least at the early stage, there is a lot of uncertainty. For some, that’s a difficult notion. But for my part, I would rather consumers know so that we can all keep reasonable expectations.

Okay, that’s enough for this post. In Part 3, I’ll talk about hiring a lawyer in Oregon, including payment and contracts.

Oregon injury claims–what Oregon consumers need to know (Part 1)

This is one of those posts that is read only by those who need to know. So first, I am sorry that you find yourself needing to review this information.

There is a lot of misinformation out there. This is a summary of what I’ve learned as an injury attorney in Oregon over the last two decades.

So let’s start with the big picture. Here are three things you need to understand about the Oregon injury system.

1. Nothing that happens here will leave you better off. You are not reading this to get rich and that’s a good thing because that won’t happen. The Oregon system is conservative.

2. The Oregon injury system shouldn’t be used for small injuries or near-misses. While near misses are scary and traumatic, the reality is that resources are limited and need to be available for those who are badly injured.

3. Injury claims stand or fall on three basic elements: 1) fault, 2) “causation;” and 3) harm. That means that compensation is available only if someone else was at fault, that fault caused harm, and the harm was significant.

So how do these principles apply? Motor vehicle collisions  provide a good way of illustrating the principles.

1. The system is conservative; you’re not going to get rich

Let’s look at the first one. If you were injured in a motor vehicle collision, you know this truth in a fundamental way. Given a choice between health and money, you would choose health every time. Put another way, you didn’t choose to be in this system. If you didn’t have to worry about your medical bills, or your damaged neck or back, you would be less stressed. And without the pain and limitations, you would be healthier and happier.

If your body worked like it did before the crash, you would be out there living your life and not dealing with the uncertainty that comes with injury. You certainly don’t think of this as a lottery win, and anyone who thinks otherwise probably doesn’t understand your life.

The lottery comments are particularly offensive. When you pay two bucks to play the lottery, you choose the entertainment and the fun. When an inattentive driver takes away your health,  you didn’t make a choice, and it certainly cost you more than two bucks.  Having said all that, Oregonians are thrifty by nature and rarely provide large money assessments when cases go to trial. They expect you to get by on less and to not be defeated by your challenges. You understand that, of course. The rare cases of large damage assessments simply mean that the consumer is badly injured. That’s cold comfort, at best.

2. Near misses

I imagine this has happened to you. A crazy driver blows a stop sign or a red light. Or maybe an inattentive driver turns in front of you. Through a combination of your vigilance, skill, and luck, you manage to avoid the collision. “That jerk could have killed me,” you think. And you’re right of course. Still, we don’t dabble in near misses. In Oregon, we expect you to gather yourself and go on. The same is true of trivial injuries. The bruise that heals in a few days isn’t worth troubling over. We teach our young kids to pick themselves up and dust themselves off and go on. The same is true here.

3. The three elements

To pursue a claim, we must prove that someone’s fault caused your harms and losses. Sometimes it’s obvious. A drunk driver runs a stop sign and plows into your car. You’re badly injured. Medical expense, time lost from work, and uncertain future of pain and disability result. That’s the easy case.

But cases are often harder than all that. Fault is often the easiest part of the case. It is proving the connection between the fault and the harms and losses and the extent of those harms that gets harder. So, for example, sometimes the injured person has been injured before. After all, few of us get through life without some prior history. The at-fault driver will often argue that your neck injury was “actually” something that existed before. The law says that the fact you were more susceptible doesn’t let the unsafe driver off the hook.  But it’s easy to sow doubts.

This is particularly challenging when, for example, a doctor makes an error and a patient suffers profound injury. The error part is generally the easy part of the case. But showing how the error led to the result is hard, especially when the patient was sick or otherwise compromised to start.

***

That’s enough for this post.  There are often many challenges in pursuing an injury case, so don’t mistake this summary for all the detail that goes into investigating and proving a claim. Want more? Part 2 is here. And Part 3 is here.

David Sugerman

Halliburton/KBR continue fight against rape victim Jaimie Leigh Jones

Sometimes the best legal advice to a recalcitrant client about their case is, “Stick a fork in it; it’s done.” And so it goes with KBR and the horrifying case of Jamie Leigh Jones.

When Ms. Jones claimed that she was drugged and raped while working in Iraq, KBR and Halliburton worked hard to keep her sexual assault case quiet by forcing it into mandatory arbitration. Fortunately, judicial wisdom prevailed, and KBR eventually lost the Jones case in the Fifth Circuit Court of Appeals.  And those who trail behind her have the benefit of Senator Franken’s great work in limiting mandatory arbitration for defense contractors.

But KBR is both angry and undeterred. As this this report explains, KBR now disputes Ms. Jones’ allegations that she was drugged and gang raped by co-workers. KBR reportedly made those points in its brief seeking U.S. Supreme Court review.

While Ms. Jones blew the whistle five years ago, KBR now says Ms. Jones fabricated her story. Odd if you think about it.  If KBR actually doubted Ms. Jones, wouldn’t they have taken that position years ago? And more to the point, given all the publicity over the rapes in Iraq, isn’t it fair to assume that they would want to fight this thing publicly and loudly?

I’ll admit to biases and a point of view. They come from two sources. First, I’m a father, a husband, a son and a brother. Every woman in my family has worked. When my wife and daughter go to work, I think it’s a modest demand that they not be subjected to sexual violence. Apart from that, I represent Oregon National Guard soldiers in unrelated litigation involving toxic exposures at Qarmat Ali. I am not intending to comment on that case–we’ll leave it to our proof.  Still, the KBR litigation posture is telling.

I suppose it’s just too much to demand that KBR simply accept that it lost and go to trial.  Owing to the genius of our founders, we have jury trials to allow impartial fact finders to decide cases. That right exists so that the Jaimie Leigh Jones’s of the world can force KBR to prove its defense or shut up.

David Sugerman

Health club waivers gone wild–why I won’t do business with Westside Athletic Club

After settling into my current schedule, I realized that I would probably work out more frequently if I joined a health club near my office. Westside Athletic Club has a location near my office in Big Pink, Portland’ s US Bank building. So I headed over to check it out. At the front desk, the peppy staff member enthusiastically endorsed my plan. And then she handed me a form that I needed to fill out and sign.

The form included a waiver of claims that appeared to immunize the health club from harms and losses caused by its fault. I told her I wouldn’t sign, and for her part she told me that she couldn’t allow me to look at the club. I asked her to tell management that they had just lost a sale. She was very polite and apologetic and promised to pass along my refusal.

So what’s the problem here, and why am I so snippy about such things?

Some legal background, first. Oregon generally enforces waivers and releases. In other words, if I sign a waiver, it will generally be enforced. There are a few exceptions, but you’re not reading this for details or even advice, so we won’t get too geeky about all this. Also, in the proper situation, I don’t have much of a problem with a waiver. For those of us who choose high risk activities like skydiving, skiing off the groomed portion of the mountain, scuba diving, and white water rafting, we have to accept that hazards exist and grievous injuries are possible. A properly balanced waiver isn’t particularly offensive in those settings.

But Westside wanted way more than that. While it wants people as customers, it refuses to take responsibility for something as simple as the safety of its club. If, for example, a Westside employee spilled oil all over a floor and didn’t clean it up, and the waiver-signing patron slipped and shattered her knee-cap, Westside would be off the hook for all harms and losses.

That’s a line that it should not cross and why I won’t do business with them. As a customer, I think I should be able to expect that the health club will keep the place properly maintained. Failing that, I won’t join a club that hides from its responsibility.

Now let’s be clear, injuries don’t happen often. As well, I’m going to guess that Westside was simply following legal advice. I wouldn’t be surprised if other athletic clubs foist the same provisions on their visitors. Still, those are excuses, and they don’t overcome the basic problem of taking responsibility for our actions. So Westside, if you want me to visit or join your health club, please offer me a deal we can both live with. I know business is tough, but that’s true for both businesses and consumers. I’m not interested in paying dues if you’re not willing to take responsibility for the safety of your club.

David Sugerman