Update: Big Win against BP and ARCO

Great news in our long running consumer fraud class action against BP. We scored a big win in the Oregon Court of Appeals. The court affirmed the trial court and the verdict in all respects. That’s to say we won big. BP has announced that they will ask the Oregon Supreme Court to review the case. The Oregon Supreme Court does not have to take the appeal. My guess is that we’ll know by the end of the year whether the Oregon Supreme Court is going to review the case.

Meanwhile, we soldier on. If you need solace about the delay, here is something that will brighten your day. Our judgment is over $400 million. It earns interest at $100,000 per day. So if the delay gets you down, just know that BP is paying a ton of cash for taking the long way.

We’ll let you know more when have more news to report. Meantime, keep the faith.

-David

PS Here is the opinion for those interested in such things:  COA opinion 053118 

Western Culinary Inst./Le Cordon Bleu Portland–Settlement Approved

I’m pleased to report that settlement of our longest running class action received final approval. The case, Surrett v. Western Culinary was filed in March of 2008. (No that’s not a typo.) Under the settlement. people who made claims will receive refunds of 44 percent. In addition, any debts owed directly to the school have been written off. And the defendants have to pay fees and costs, so the full refund amount goes to the former student.

We’re pleased with the settlement and happy to report that the court approved it in full.

The judgment was entered today (one of the last big hurdles), and we now know that payments will be mailed out on August 10, 2018.

We’re still moving forward with individual arbitrations for those former class members who have to go to arbitration first. We expect to file hundreds of arbitration cases. We will see those through to the end, no matter how long it takes.

Thanks for your patience-

David

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

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?? https://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.