Category Archives: Damages

The Danger of Bird and Animal Strikes in Aviation: What Can Be Done?

Scott Brooksby’s article, “The Danger of Bird and Animal Strikes in Aviation: What Can Be Done?” was featured in the October edition of the International Air and Transportation Safety Bar Association’s Air & Transportation Law Reporter.  Bird strikes pose an increasing danger to commercial, military and general aviation and have resulted in hundreds of deaths and serious injuries to passengers and crew, and hundreds of millions of dollars in damage to aircraft. Bird strikes are the second leading cause of death in aviation accidents.  Scott’s article explores what can be done to help alleviate and address these dangers.


Economic Losses and Loss of Consortium Claims in Oregon Product Liability Cases

Economic Loss is Not Available in Oregon in Strict Product Liability Cases

The recovery of economic loss such as lost profits or lost sales is not recoverable in Oregon in product liability actions where strict liability is alleged.  In Brown v. Western Farmers Assoc., 268 Or 470, 480 (1974), the Oregon Supreme Court held that strict product liability was not designed or intended to offer a remedy for such commercial aspirations as sales and profits.  Oregon is a physical injury state and the Oregon appellate courts have uniformly held that strict liability is not a remedy for purely economic loss in the absence of a physical injury to persons or property.  Russell v. Deere & Co., 186 Or App 78, 84-85 (2003).

Lost Income to a Spouse Who Cares for an Injured Spouse is Not Recoverable as Part of a Loss of Consortium Claim in a Product Liability Action

It should also be noted that a spouse is not entitled to recover for lost income sustained as a result of having to care for her injured spouse as part of a claim for loss of consortium.  Axen v. American Home Products Corp., 158 Or App 292, 309-311, adh’d to on recons, 160 Or App 19 (1999).  In Axen, a husband and wife brought a strict product liability claim for injuries to the husband allegedly caused by a prescription drug.  The husband and wife alleged that the husband’s use of the drug Cordarone caused a loss of vision.  The wife argued that she was forced to take an early retirement in order to care for her husband and as a result, lost retirement benefits of $436,392.00.  The jury awarded the wife nearly one million dollars for loss of consortium.  The Oregon Court of Appeals reversed the wife’s award of economic damages.  The court stated it would adhere to the “traditional rule” that lost income is not a proper subject of a damage award for loss of consortium.  Id. at 311.

The Newly-Released DSM-5 and Its Use in Personal Injury Cases

Olson Brooksby primarily defends high-exposure product liability and personal injury cases.  Over the past few years, it seems as though many of these cases involve personal injury claims for mental disorders, particularly Post-Traumatic Stress Disorder (“PTSD”), as a result of the alleged accident at issue in the lawsuit.

PTSD is a mental disorder within the anxiety classification of disorders in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, or “DSM”.  It is important to be familiar with the most recent version of the DSM when defending against a personal injury claim filed by a plaintiff who alleges a mental disorder.

In order to assist companies defending against personal injury claims requesting damages for various mental disorders, this article discusses the DSM and the recently-released DSM-5, and explains why it is important for personal injury defense lawyers to be familiar with the DSM-5 when defending against personal injury claims.

The DSM: The Single Most Authoritative Manual Regarding the Diagnosis of Mental Disorders

The DSM is universally recognized as the single most authoritative manual regarding the diagnosis of mental disorders.  The current version of the DSM, the DSM-5,was just released this week.  The previous version, the DSM-IV, was published in 1994 and the text was revised (DSM-IV-(TR)) in 2000.

The usefulness and credibility of the DSM for education, research, clinical, or forensic work depends upon the support of an extensive empirical foundation.  The DSM was created by the  American Psychiatric Association (APA) in order to provide a helpful guide to clinical practice with a uniform nomenclature that spans disciplines and purposes.  While a complete history of the development of the DSM-5 and earlier editions is far beyond the scope of this article, a short synopsis is crucial to the understanding of the universal acceptance of the text as authoritative.

The Principal Purpose of the DSM

The undisputed principal purpose of the DSM is to aid clinicians in the diagnosis of mental disorders, not for forensic purposes.  In fact, the DSM-IV and 5 both include disclaimers that spell out the significant risks that are present within the DSM categories, criteria, and textual descriptions when they are employed for forensic purposes.  The primary danger is that the diagnostic criteria will be misused or misunderstood.  This is because of the imperfect fit between the questions of ultimate concern to the law and the information used by clinicians to render a clinical diagnosis.

Additionally, in a forensic setting, nonclinicians should be cautioned that a diagnosis does not carry any necessary implications regarding the causes of the individual’s mental disorder or impairments.  The clinical diagnosis of a DSM mental disorder is not sufficient to establish the existence for legal purposes of a “mental disorder”.  In determining whether an individual meets a particular legal standard (e.g., a particular disability), additional information is usually required beyond the DSM diagnosis.

The DSM provides categorical classifications that divide mental disorders into types based on criteria sets with defining features.  It is a classification of mental disorders that was developed for use in clinical, educational and research settings.  The DSM is meant to serve as a guideline to be informed by clinical judgment and is not meant to be used in a cookbook fashion.  It is essential that the DSM not be applied by untrained individuals, since clinical training, judgment and experience are essential to proper diagnosis

The Development of the DSM-5

A Task Force and Work Groups made up of more than 160 world-renowned clinicians and researchers proposed the draft criteria for the DSM-5.  Those clinicians and researchers, all volunteers, consisted of experts in neuroscience, biology, genetics, statistics, epidemiology, social and behavioral sciences, nosology, and public health.

Applying Knowledge of the DSM-5 to Claims in Personal Injury Cases

Personal injury defense lawyers should be prepared to cross-examine forensic psychologists who testify on behalf of plaintiffs who allegedly suffer from any kind of mental disorder.  There are a number of reasons that extensive preparation is required when defending against personal injury claims for mental disorders, particularly claims for PTSD.  These include the nomenclature involved in the diagnosis, the relative complexity and universal acceptance of the DSM-5 as the authoritative source for the PTSD diagnostic criteria, and the dangers of malingering when financial remuneration is at issue.  Other reasons include what is typically a lack of the critical additional information regarding a plaintiff’s background, inadequate testing, improper reading of (or absence of) validity scales in a given standardized test, or an absence of reliance on any other data or criteria by the forensic psychologist testifying on behalf of the plaintiff.

If defense counsel is thoroughly familiar with the DSM-5, the DSM-5 criteria and commentary on the particular mental disorder at issue, and is prepared for an effective cross-examination of the plaintiff’s treating or forensic psychologist, the damages in cases involving personal injury claims for mental disorders can be significantly reduced or eliminated.

Aftercare considerations in catastrophic injury cases, particularly burn injury cases

Catastrophic injury cases can be particularly difficult to defend.  Burn injury cases are difficult to defend due to the severe, painful, and grotesque nature of the injury.  With relatively few exceptions, there is no such thing as a short stay in a regional burn center.  Such centers do not treat sunburns or minor cooking accidents.  Based on our experience when defending serious burn cases, it is not uncommon for stays in burn centers to last weeks, months, or even in excess of a year.  Stays of many months or exceeding a year typically cost well into the seven figures for past treatment.  Such aftercare means that most burn cases are high-exposure cases that require serious evaluation and preparation.

Treatment After Discharge From the Burn Center

Serious burns are not “healed” at the point of discharge from the burn center.  Release from the burn center in serious burn cases typically signals the beginning of a long series of follow up treatment visits and possibly scar revisions, as well as additional grafting or other procedures.  Aftercare treatment may last months, years, or even decades in the most severe cases.  Discharge typically begins with admission to a step-down facility.  This is typically a residential facility affiliated with, and in close proximity to, the burn center.  The length of stay in the step-down facility varies, but usually lasts about thirty days.

Both at the step-down facility and after return to home care, the victim of a serious burn will begin a series of follow up visits with the burn physician.  The most common aftercare is a continuation of excision and grafting, both to those areas where grafts have been rejected or did not “take” sufficiently, or where multiple grafts are required for a structural or functional purpose.  Depending on the nature of the necessary revision procedures and the skill required, this can be a complicating factor when the burn victim lives far from a regional burn center.  Extensive travel time may be required and often the plaintiff will seek monetary damages for such travel, or argue that, by definition, it constitutes an impairment of earning capacity due to employment interruption.

Another common aftercare procedure is tissue expansion.  With tissue expansion, a balloon expander is inserted under the skin in the area in need of repair.  Over time, the balloon will gradually be filled with saline solution, slowly causing the skin to stretch and grow.  Once enough extra skin has been grown, it is then used to correct or reconstruct a damaged body part.  This is common for breast reconstruction and parts of the upper torso.

Typically burn surgeons and plastic surgeons will take an inventory approach to necessary reconstructive and plastic procedures.  They will triage the most problematic areas, starting with the face, head and extremities, if affected, and work through a graded inventory of affected areas.  This could go on for five-plus years.  With many patients, the psychological aspect of treatment becomes the most difficult.  It feels as though they are constantly having surgeries, even if the surgeries are, in fact, intermittent.

In burn cases, the major and minor reconstructive surgeries will eventually reach the point where scar repair has no functional relevance and is cosmetic only.  However, this is more complicated with major burns because total body or near total body burns are tied to functional needs, and this makes the query about whether a given procedure will produce worthwhile, if any, additional cosmetic benefits more difficult.  The total body surface area that is burned, particularly if it includes the face and hands, may drive some conflict in the debate regarding whether further procedures add function or are merely cosmetic and whether further cosmetic benefit can even be achieved.

Because Burn Cases Are Generally High-Exposure Cases, it is Important to Hire the Best Experts and Consider All Variables When Assessing Damages.

Some burn injuries, such as deeply burned hands, cannot ever be fully restored.  Furthermore, some burn reconstructive surgeries go on for many years, even as many as thirty-plus years.  It is imperative in the defense of burn cases to hire the best possible expert.  Because a significant portion of the potential exposure lies in the intensive nature and long arc of the aftercare, the expert can be helpful in preparation for cross-examination of the plaintiff’s expert on whether some of the allegedly needed procedures will provide any functional, or even any significant cosmetic, benefit that would justify both the cost and the risks that are perennially associated with grafting, such as rejection, infection and additional scarring.

When a reasonable settlement is possible, it should be seriously considered, even when there appear to be good defenses.  Those defenses can be useful negotiation points during a settlement.  Variables in burn centers, surgical treatment, aftercare, the nature of the burn, and the presentation of the plaintiff all make any hard and fast rules for case assessment ineffective.  But manufacturers and insurers should keep in mind that burns, unlike most other injuries, especially to children, have the potential to create unpredictable, and possibly soaring verdicts.




Variables that can affect burn injury cases

Most experienced defense lawyers know that the variables in burn injury cases prevent anything resembling a guarantee of a good result.  The following variables can affect the outcome of a case, including the potential financial exposure that a defendant or its insurer or worker’s compensation carrier may face:

– the different types of skin grafts and skin graft surgical procedures commonly involved in burn cases;

– whether, in high total body surface area (tbsa) burns, complete excision and grafting can be completed in a single principal procedure;

– the treatment technique, surgical technique and treatment philosophy of the physician; and

– the relative size of the burn center, as larger centers tend to be able to perform certain procedures–not because of greater skill, but because of the size and number of  surgical teams necessary.

Skin Graft Classification and Skin Graft Surgical Procedures

In burn injury cases, surgical removal (excision or debridement) of the damaged skin is followed by grafting.  The grafting is designed to reduce the course of hospital treatment and improve function and cosmetic appearance.  There are typically two types of skin grafts–mesh grafts and sheet grafts.  A less-common, third type of graft is a composite graft.

Mesh Grafts

Mesh grafting is known as partial-thickness grafting, or split-thickness grafting.  With mesh grafting, a thin layer of skin is removed from a healthy part of the body, known as the donor site.  It is processed through a mesher, which makes apertures into the graft. The graft then becomes mesh-like, allowing it to expand approximately nine times its original size.  Such grafts are used to cover large areas and the rate of auto-rejection is lower.  Harvesting of these grafts from the same site can occur again after as little as six weeks.  The surrounding skin requires dressings and the donor site heals by reepithelialization.

Using a dermatome, the surgeon usually produces a split-thickness graft which is carefully spread on the bare area to be covered.   It is held in place by a few small stiches or surgical staples.   The graft is initially nourished by a process called plasmatic imbibition in which the graft drinks plasma.  New blood vessels begin growing from the recipient area and into the transplanted skin within 36 hours in what is called capillary inosculation.  To prevent accumulation of fluid, the graft is frequently meshed by making lengthwise rows of short interrupted cuts, each a few millimeters long, with each row offset to prevent tearing.  This allows the graft to stretch and more closely approximate the contours of the affected area.

Sheet Grafts

In the alternative, a sheet graft, which is a full-thickness graft, involves pitching and cutting away skin from the donor section.  Sheet grafts consist of the epidermis and entire thickness of the dermis.  Sheet grafts must be used for the face, head and hands because contraction must be minimized.  If sheet grafting is necessary but the donor sites are insufficient, the outcome is likely to be less satisfactory, and the financial exposure in such cases will be higher.

With sheet grafting, the donor site is either sutured closed directly or covered by a split-thickness graft.  Sheet grafts are more risky in terms of rejection, yet counter-intuitively leave a scar only on the donor section.  Sheet grafts also heal more quickly and are less painful than partial-thickness grafting.

Sheet grafting is usually difficult in severe aviation or manufacturing burns because those involve high-percentage tbsa burns and donor sites are therefore limited.

Composite Grafts

The third type of graft, a composite graft, is a small graft containing skin and underlying cartilage or other tissue.  Donor sites would include the ears and other cartilage to reconstruct, e.g., nasal rim burns.

In High TBSA Burns, When Immediate, Complete Excision and Grafting is Completed in a Single Procedure, Damages Amounts May Be Lower.

In cases involving clearly severe, high tbsa burns, whether full or partial thickness, immediate, complete excision and grafting is usually indicated.  If immediate excision and grafting is complete–that is, done in a single procedure–a much larger surface area surgery can be completed with less blood loss.  This minimizes transfusion needs and dangers and also speeds physiological restoration.

Furthermore, an immediate, complete excision and grafting procedure can often allow use of good skin for grafting that would otherwise need to be excised.  If the procedure is not done immediately, less skin may be available for grafting.  In other words, skin that otherwise may have been healthy and usable when the plaintiff was first admitted to the hospital may die if the procedure is not done immediately, particularly if that skin is close to the burn site.

Immediate, complete excision and grafting also cuts down on the number of procedures and allows important vascular redevelopment to begin occurring sooner and supplying the graft locations with blood flow, which is essential to healing.

 The Treatment Technique, Surgical Technique and Treatment Philosophy of the Physician Can Be Outcome-Determinative

The simple fact is that some surgeons are more skilled than others, so the outcome may be better or worse depending on the skill of the physician.

There are also some advances in burn surgery that particular physicians are able to employ.  For example, in the most serious burn cases, grafts may be taken from other animals.  Such grafts are known as heterografts and, by design, they serve as temporary dressings that the body will unquestionably reject within days to a few weeks.  They are used in severe cases to reduce bacterial concentration of an open wound and reduce fluid loss.

Additionally, some surgeons are able to use cell cultured epithelial autograft (CEA) procedures, which involve removal of skin cells from a patient and the growth of new skin cell sheets in a lab.  Although the new sheets will not be rejected, they are typically only a few cells thick and do not stand up to trauma.  As a result, many such grafts do not take and the procedure must be repeated or an alternate procedure employed.

Furthermore, some physicians prefer to do more sheet grafting versus mesh grafting.  The physicians who prefer mesh grafting like it because they can cover much larger areas in a shorter period of time.  Conversely however, mesh grafting requires more revision surgeries, more of a risk that the grafts don’t take, and more contraction, which is disfiguring and requires further surgery.

Different groups of surgeons have their own philosophies and cultural preferences.  In Portland, Oregon, for example, there is one group of approximately five, highly-skilled burn surgeons who staff the Oregon Burn Center at Emanuel Hospital.  Due to the relatively small size of the burn center, they tend to wait four to seven days before conducting major graft procedures so that they can have a better assessment of the full extent of the injury.

The Relative Size of the Burn Center Can Be Outcome-Determinative

Larger burn centers, such as the ones at UC Davis or Harborview in Seattle, do not necessarily provide better treatment, but they are typically capable of complete excision and grafting at admission when there is a high percentage of the total body that sustains full-thickness burns or a combination of full-thickness and lesser degree burns.  This is a function of burn center size, not the skill of the physicians.  A full excision and grafting procedure is lengthy and generally requires two full surgical teams and at least two attending physicians and two assistant surgeons.  This type of procedure is generally not possible at relatively smaller burn centers such as the Oregon Burn Center.

Using Variables in Burn Cases to Assess Case Value and Adequately Prepare

The variables discussed above vary from case to case.  It is important to assess each one when valuing a burn injury case in order to determine the defendant’s likely exposure and prepare adequately for productive settlement discussions and, if absolutely necessary, trial.


An Introduction to Burn Injury Significance and Burn Centers

Burns Are Significant Injuries and Can Lead to Some of the Highest Jury Verdicts

Olson Brooksby appreciates the potential high-exposure value of burn injury cases.  Scott Brooksby has significant experience in serious, total body surface area (tbsa) burn injury and wrongful death cases.  Our lawyers understand the delicate nature of large burn injury cases and work to minimize exposure to our clients.

Defendants potentially subject to burn injuries should employ best safety practices and make every attempt to avoid such injuries.  Burns are one of the most serious injuries in personal injury cases.  They may be the result of chemical fire or exposure, explosions, paints, solvents, or conventional fire.  Sometimes burns are the result of contact with hot equipment or other product liability related events.  The defense of serious burn injuries, including those related to aviation, product liability and heavy manufacturing is a large part of the defense practice of Olson Brooksby.  A bad burn case in an aviation or heavy manufacturing accident, or as the result of a product liability defect can easily present high financial exposure to manufacturers and/or insurers.  Settlement exposure can climb into the millions or tens of millions, with verdicts at least as high.

Even when there appears to be a strong defense, defendants should not underestimate the overwhelming sympathy a jury will feel when it sees a burn victim, particularly with serious facial burns or burns to the extremities.  A good plaintiff’s lawyer will ask the jury to consider things like the profoundly disfiguring effects of a bad facial burn and the pain that everyday exposure to sunshine will cause its victim for life, or the lifelong gawking stares it will draw.

Similarly tragic are severe burns to the hands, which cannot be restored to even near full function or pre-burn aesthetics and result in pain every time the victim is touched.  When liability is clear, burn cases should be settled because, unlike other personal injury cases, deformities caused by burns can incense juries to the point where they cannot put their emotions aside.  The result can be verdicts in the millions or tens of millions, including punitive damages (particularly if children are involved or there is perceived recklessness).  Although the amount of burn verdicts used to depend on the region of the country where the case originated, such verdicts are now generally high in every jurisdiction.

If the burn injury case must be tried, it must be done with great sympathy for the victim  and careful attention to the medical aspects of the case, including future treatment, which may last decades and cost into the six or seven figures.

When trying a burn injury case, it is important to know where the injury occurred.  If a plaintiff has to be air lifted to a burn center, that can radically change the extent of the injury.  Similarly, it is important to know the details of the burn center where the plaintiff was treated because that can also change the extent of the injury and thus affect the jury verdict amount.

The Location of the Accident Can Change the Extent of the Injury and the Jury Verdict

In those industries where serious conventional burns are common, such as aviation disasters or steel or metal manufacturing, “serious” can arbitrarily be defined as full-thickness burns over 20% or more of the tbsa.  The location of a burn center and the length of time to transport the victim to the burn center can be outcome-determinative.  This is also particularly true where babies and children or those over sixty-five are the victims, or where there are serious burns to the face, head, extremities, or internal organs.

Manufacturers and insurers obviously do not choose where burn centers are located.  After an accident, first responders will obviously make needed decisions about transport.  Most heavy manufacturing, including that of aviation hot section components, is done near large metropolitan areas that typically have at least one burn center.  Perhaps some of the greatest danger lies in cases in remote areas where individuals are subject to burns from allegedly defective products.  For example, a person camping in a remote area of the Western United States who is badly burned by kerosene at a remote campsite may not be able to reach a burn center for hours.  There may be no cellular phone service and a helicopter ambulance may have to be dispatched from hundreds of miles away.

Depending on the severity and tbsa burned, the size and related capabilities of the burn center will have a direct impact on the plaintiff’s recovery, and consequently, the ultimate exposure to the manufacturer and/or insurer in any settlement or verdict.

All Burn Centers are Not the Same–They May Have Varying Treatment Philosophies, Training and Capabilities

The size of the burn center can also be outcome-determinative because smaller centers, such as the Oregon Burn Center at Emanuel Hospital, are generally not large enough to perform a full excision and grafting in high tbsa burn cases.  A full excision and grafting is where they do all of the procedures at once instead of one at a time.  Some burn physicians believe that, depending on the case, better outcomes are achieved through full excision and grafting in high tbsa burn cases.

There are approximately 45 regional burn centers in the United States.  Verification of burn centers is a joint program administered in the form of a rigorous review of the applicant centers by the American Burn Association (ABA) and the American College of Surgeons (ACS).  Many states do not have a regional burn center and most states have only one or two.  California has the most, with seven.  Most burn centers are run by a single group or an extremely limited number of groups of burn surgeons who practice at the facility.

Unlike hospitals, burn centers do not typically extend general privileges to physicians.  Most burn surgeons have been trained as general surgeons, and then have gone on to receive additional specialized training in burns.   Along the population corridor running down I-5 between Seattle and Davis, California there are three verified regional burn centers, one each in Seattle (Harborview), Portland (The Oregon Burn Center at Emanuel Hospital), and The UC Davis Regional Burn Center.

Training and available resources vary from center to center.  Burn centers also tend to have more pronounced treatment philosophies and cultures because they are staffed by relatively few surgeons who generally practice in the same group or just a few groups.  However, although burn center practice varies, it is imperative that those who are seriously burned reach a regional burn center as soon as possible because specialized treatment is inarguably outcome-determinative

The mechanics of injury, lots of fire, accelerant, and contact with temperatures in excess of 1,000 degrees are factors that are considered when determining whether burns are graftable from point of admission.  In any serious burn case, most intermediate facilities such as a conventional hospitals will seek to transfer a seriously burned patient, almost always by air, to a regional burn center as soon as stabilization occurs.


Oregon Supreme Court Upholds Personal Injury Claims Cap

A helicopter releases fire-suppressant chemicals on a forest fire.

In Howell v. Boyle (March 14, 2013), the Oregon Supreme Court found that the Oregon Tort Claims Act (OTCA) limited plaintiff’s approximately $1 million in damages to $200,000 (the OTCA cap) and that the cap was not unconstitutional under article I, section 10 of the Oregon Constitution.

This case is significant because if the remedy clause of the Oregon Constitution, Article I, section 10, is at issue, personal injury defense attorneys can now argue that, under Howell, caps are constitutional and should be upheld as long as the plaintiff’s recovery is “substantial.”

In Howell, a city police officer struck the plaintiff with his vehicle at night in an unmarked crosswalk.  (Id. at 2.)  The jury awarded the plaintiff approximately $1 million, finding the plaintiff and the defendant each 50% at fault.  (Id. at 3.)  Accordingly, the court reduced the plaintiff’s damages by half. The defendants argued that the plaintiff’s award should be reduced further to comply with the OTCA cap of $200,000.  (Id. at 1.)  The trial court denied the defendants’ motion and held that the cap violated the remedy clause of Article I, section 10, of the Oregon Constitution.  (Id.)  Ultimately, however, the Oregon Supreme Court overturned the trial court’s ruling and upheld the cap.  (Id. at 2.)  The court reasoned that, even assuming that the plaintiff’s negligence claim was “constitutionally protected by Article I, section 10, the $200,000 limitation on her recovery is constitutionally permissible.”  (Id.)

Under Smothers v. Gresham Transfer, Inc., 332 Or 83, 124 (2001), the Oregon Supreme Court established a two-part formula for analyzing claims brought under the remedy clause: (1) Did the plaintiff allege an injury to one of the absolute rights protected by Article I, section 10?  In other words, when the constitution was drafted in 1857, could one file a claim for the alleged injury under Oregon common law?  If the answer is no, then the remedy clause is not at issue and the analysis is concluded.  Howell at 13.  However, if the answer is yes, “and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause,” then we move on to the second question.  Smothers, 332 Or at 124.  (2) Did the legislature provide a “constitutionally adequate substitute remedy for the common-law cause of action for that injury”?  (Id.)

In Smothers, for example, the court found that, because the plaintiff’s claim for employer negligence could have been brought under common law in 1857 and because the workers’ compensation statutes’ exclusive remedy provision completely eliminated such a claim, the statute was unconstitutional.  Id. at 136.

Determining whether a substitute remedy is constitutionally adequate is difficult.  However, under Smothers, the remedy cannot be “emasculated.”  Id. at 119.  Rather, it must be capable “of restoring the right that has been injured.”  Id.  In other words, the remedy must be “‘substantial.'”  Howell at 13 (quoting Smothers, 332 Or at 120 n 19).  Whether an award is “‘substantial’ requires ‘flexibility and a consideration of the facts and circumstances that each case presents.'”  Howell at 18 (quoting Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526 (2011)).

The Oregon Supreme Court has concluded that damages limitations “are constitutionally inadequate in only two cases,” Neher v. Chartier, 319 Or 417 (1994) and Clarke v. OHSU, 343 Or 581 (2007).  Howell at 19.  In Neher, the court held that the remedy was inadequate because the parents of the victim were completely deprived of any remedy, while the estate benefitted from $3,000 in burial costs under the workers’ compensation law.  Howell at 19.  In Clarke, the court held that the plaintiffs were deprived “of all but one percent of the more than $17 million in damages that they would have otherwise recovered[.]”  Howell at 19.

The court distinguished Howell from Neher and Clarke because, in Howell, the plaintiff was not devoid of a remedy and the remedy was “far more substantial” than that in ClarkeHowell at 19.

The Howell court also recognized a quid pro quo at work in the OTCA cap because “the city remains liable for the torts of its employees committed within the scope of employment.”  Id. at 19-20.  And although there is a cap, the OTCA substitutes the “‘deep pocket'” of the city for the individual employees.  Id. at 20.  “Plaintiffs, in other words, have been conferred a substantial benefit in exchange for the damage limitation.”  Id.

The plaintiff argued that her right to be made whole was eliminated by the cap and that, under common law, the plaintiff had the right to obtain the full measure of damages.  Id. However, the court reiterated that, under Clarke, the legislature can “‘vary and modify both the form and the measure of recovery for an injury[.]'”  Howell at 21-22 (quoting Clarke, 343 Or at 606) (emphasis added in Howell).  The Howell court pointed out that there is no guarantee that plaintiff be given a “whole remedy,” rather that plaintiff not be left “‘wholly without remedy'”.  Id. at 22.

The dissent in Howell argued that a partial remedy, via the OTCA cap, was inadequate (i.e., emasculated) because, under the substitute remedy of the cap, the plaintiff was not wholly restored as required by the the text and context of the constitution.  Id. at 25.  However, the court’s majority pointed out that, under Smothers, “what must be ‘restored’ is an injury that would have been recognized as the basis for a cause of action in 1857.”   Howell at 26 (emphasis in original).  In 1857, negligence claims were subject to the contributory negligence doctrine, where any fault by the plaintiff would operate to completely bar the plaintiff’s claim.  Id.  The court found that, therefore, the $200,000 in damages that the plaintiff would receive under the cap was fully “‘restorative’ of her common-law negligence claim.”  Id. at 33.

Therefore, the court concluded, the cap does not “leave plaintiff with a constitutionally inadequate remedy under Article I, section 10, of the Oregon Constitution.”  Id. at 36.


Proving economic damages in Oregon

Oregon’s economic damages statute, ORS 31.710(2)(a) provides that:

“Economic damages” means objectively verifiable monetary losses including but not limited to reasonable charges incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.

Under ORS 31.710(2)(a), what is the nature and amount of proof necessary to establish economic damages?  In Kahn v Pony Express Courier Corp., 173 Or App 127, 160-61 (2001), rev den, 332 Or 518 (2001), the Oregon Court of Appeals clarified that only reasonable probability is required to prove economic damages and no particular amount of proof is necessary.  Under ORS 31.710(2)(a), the term “objectively verifiable” means only that damages are “’capable of confirmation by reference to empirical facts.’”  Kahn, 173 Or App at 160 (quoting DeVaux v. Presby, 136 Or App 456, 462 (1995)).  For instance, in a case involving the plaintiff’s loss of earning capacity, the statutory standard is met even if a plaintiff’s loss can only be approximated using probabilities to calculate the loss.  Id. at 161.

Kahn did not change the requirement that a Plaintiff’s expert express the claimed economic damages in terms of a reasonable degree of medical, economic, or other scientific probability.  Id.  But a plaintiff’s expert can prove economic damages by testifying “to economic assumptions that necessarily rest on estimates and predictions of uncertain future events.”  Id. (internal citation and quotation marks omitted).

Under OEC 703, defense counsel is entitled to, and should in many cases, exhaustively cross-examine plaintiff’s expert to ensure that the plaintiff’s damages are within a reasonable degree of probability.