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Diligent Preparation and Spotting Fatal Flaws in the Other Side’s Case Leads to Favorable Outcome

Smith Freed Eberhard Partner Ryan McLellan recently obtained a very favorable settlement after moving for a directed verdict against in an equine on the grounds that she had not established causation or damages during the presentation of her case in chief. Recognizing that the motion for directed verdict would likely be granted, Plaintiff’s counsel accepted a minimal settlement offer that was roughly 80% less than her pre-trial demand.

The Background Story
The case arose out of the foaling of a horse. Ryan’s client operates a horse training and foaling facility. The owner of the horse hired Ryan’s client to “foal out” her horse. This generally includes monitoring the horse’s pregnancy and assisting with the delivery of the foal if needed. Roughly a month after the horse was delivered to the client’s facility, an employee of the client discovered that the horse had unexpectedly gone into labor. The employee called the foaling attendant, who lives on the property, who arrived within a few minutes and determined that the foal was in an abnormal posture. As a result, the foal was stuck. The foaling attendant corrected the abnormal posture, then worked with two other employees to get the foal out of the horse. For unknown reasons, the foal was delivered stillborn. The client called the owner to let her know about the stillborn foal. Critically, the owner did not authorize a necropsy to be performed. The client then called a veterinarian to come and examine the mare. The horse was subsequently moved to another boarding facility.

Ryan’s client filed a lawsuit against the horse owner seeking approximately $1,000 after the horse owner failed to pay her bill. The horse owner responded with a $65,000 counterclaim alleging that the foaling facility had been negligent in various respects, resulting in injury to the horse and the death of the foal. Of this amount, $15,000 was based on past, and future veterinary expenses and $50,000 was based on alleged loss due to the death of the foal and injury to the horse. The horse owner also asserted claims of breach of bailment and violation of Oregon’s unfair trade practices act. The unfair trade practices act allows for a claimant to recover their attorney fees if they are successful. In essence, the horse owner alleged that some language on the client’s website was misleading with respect to how often the horse would be monitored and that the failure to monitor the horse as represented in the website statements caused the horse’s injuries.

The horse owner’s attorneys took a scorched earth approach to the case, threatening and filing a litany of motions and initially holding back discovery documents in response to requests for production (and presumably incurring significant attorney fees). The case required the parties to take many depositions, including the depositions of multiple veterinarians that had treated the horse.  The horse owner’s attorneys took the position that due to injuries sustained during the foaling, the horse could never have foals again. As a result, they took the position that the horse’s value was now essentially zero since her true value before the incident had been as a broodmare. Meanwhile, the horse owner’s attorneys refused to engage in meaningful settlement discussions.

The Strategy
As trial approached, Ryan lined up various witnesses to testify in support of his client’s conduct. This included the client’s veterinarian as well as several of the client’s competitors. Ryan also retained a veterinary expert with a background in criminal horse abuse cases as well as a horse appraisal expert to discuss the loss of value allegations. Both experts testified well, particularly the veterinary expert (who supported the client’s conduct and challenged the horse owner’s assumption that the horse could not have foals again in the future).

Meanwhile, during cross-examination of the owner’s veterinary expert, Ryan effectively forced the expert to admit that she had not actually practiced veterinary medicine for several years. In addition, included in the expert file produced to the defense team prior to the expert’s testimony was an outline of questions (with answers) prepared by the horse owner’s attorney, as well as the expert’s handwritten notes. The expert testified that she had provided most of the answers in the outline, but had to admit that she had not provided all of the answers.

The basis for a directed verdict came when the defense team realized that the owner’s experts never testified that the opinions they expressed were based on a reasonable degree of certainty in their respective fields. Critically, the veterinary expert never testified that her opinion that Ryan’s client had caused the death of the foal or injury to the horse was based on a reasonable degree of medical probability. Meanwhile, the owner’s legal team never presented testimony that the veterinary expenses being sought were reasonable and necessary.

Consequently, at the end of the owner’s presentation of their case, Ryan’s associate Brian Kernan moved for a directed verdict on the grounds that there was not competent evidence to submit to the jury regarding either causation or damages. This included an argument that the owner’s unfair trade practices act claim was not legally cognizable because she had not presented evidence of an “ascertainable loss” (i.e., an objectively verifiable loss), a requirement under the statute. Critically, the owner’s horse appraisal expert had testified that “a horse is worth whatever someone is willing to pay for it” and “horse appraisal is subjective.”

The judge frustratingly denied the motion with respect to the unfair trade practices act claim but granted it with respect to the veterinary expenses (thereby striking $15,000 from the owner’s claim). Meanwhile, the judge stated that he needed to review the record, but indicated that he was inclined to grant the motion on causation grounds if the owner’s experts had, in fact, failed to say the “magic words” during their testimony. Thereafter, Ryan presented a minimal settlement offer to the owner’s attorney. Realizing that they had failed to lay the proper foundation for the expert’s opinions, the owner quickly accepted the minimal settlement. Given that there was significant attorney fee exposure to the client if the judge were to have determined the unfair trade practices act could go forward and the owner prevailed on that claim, the settlement was a great way to cap the risk.

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Persistence and Staying Focused on the Facts Leads to Unanimous Defense Verdict

Persistence and Staying Focused on the Facts Leads to Unanimous Defense Verdict
In a recent trial victory, Smith Freed Eberhard Partner Cliff Wilson and his team obtained a unanimous defense verdict in a dog bite case by taking a hard position and successfully presenting evidence that lead to the jury to find that his client had no knowledge of the dog’s dangerous propensities.

The Background Story
Defendant took in a stray dog, which happened to be a “pit bull” mix, off the streets on a snowy winter day in January. Defendant contacted the humane society but was told they don’t take in strays. Pursuant to directions on the animal shelter’s website, she tried to find the owner herself before she brought the dog into the shelter. Defendant posted lost dog notices and announcements on Facebook and other websites. During her time with the dog, it was friendly and exhibited no aggressive behavior to anyone. 10 days after she found it, plaintiff came to defendant’s home to pick up defendant’s daughter for a date.  Plaintiff entered the home, walked up the stairs, approached the dog, knelt down with his face in close proximity to the dog, rubbed the dog’s ears, and said something to the effect of “good doggy.” In that instant, the dog bit plaintiff on the left side of his face and ran away. The bite caused lacerations to plaintiff’s left eyelid, tear duct and lip. The injuries required reconstruction of plaintiff’s tear duct and required alleged lifetime future care of the duct. Plaintiff sued defendant for animal negligence, alleging personal injuries and seeking over $800,000 in damages.

The Strategy
Smith Freed Eberhard Partner, Cliff Wilson, and his team were asked to represent the defendant.  Under Oregon law, in order to be held liable, a possessor of an animal must have known or had reason to know of the dog’s dangerous propensities and that it would bite if not controlled or confined.  Cliff’s conversation with the defendant and careful investigation of the case made it clear that defendant had no way of knowing that the dog had any dangerous propensities or had ever exhibited aggression toward anyone.  In fact, the dog had interacted with multiple people in the ten days that it was in defendant’s home, showing no aggressive tendencies.

Cliff asked the court for summary judgment, arguing that defendant had no possible way of knowing that the dog was likely to bite a visitor. Plaintiff’s counsel identified a visitor that previously came to defendants home and did not want to pet the dog when invited to do so. The court denied Cliff’s motion, finding that the visitor’s refusal to go up the stairs and pet the dog could be construed as evidence that the dog had exhibited aggressive tendencies toward him.

Cliff’s strategy for trial was to focus on the facts, primarily, defendant’s lack of knowledge of the dog’s history. Plaintiff’s counsel was Gregory Kafoury, a prominent Oregon personal injury attorney known for pursuing big verdicts. Mr. Kafoury took an aggressive strategy of attacking defendant’s credibility based on inaccuracies on a form she filled out when she dropped the dog off at the animal shelter the day after the bite incident. Plaintiff’s attorney was also very set on identifying the “inherent” dangerousness of pit bull mixed dog breeds, and drew on popular media bias and common public misconceptions about this breed of dogs. Cliff cut through the smoke and mirrors with the assistance of a dog behavior expert, and focused the jury on the actual facts of the case.

The Outcome
Cliff’s persistence, strategy, and preparation for trial paid off.  Following deliberation, the jury returned with a unanimous verdict in favor of defendant.  In the end, it was clear that the jury focused on the facts and that despite the severity of the injuries and the plaintiff’s attempts to characterize the dog as inherently dangerous based on its breed, the plaintiff had simply offered no evidence that would show the defendant had any knowledge or should have had any knowledge that the friendly dog would bite him.

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Litigation Success: Due Diligence and Maintaining Position Leaves Ashley with a Happy Client

Litigation Success: Due Diligence and Maintaining Position Leaves Ashley with a Happy Client
Smith Freed Eberhard Associate Attorney Ashley Nagrodski recently obtained a settlement just minutes before arbitration, where the other defendant accepted all responsibility and agreed to pay the claim. Read on to learn more about this interesting case and to learn how Ashley’s approach to the case resulted in a successful settlement and a very happy client.

The Background Story
This case involved a spontaneous combustion that began on the balcony of a condominium unit. The defendants include the company that purchased the unit and a contractor hired to remodel and restore the unit. During the remodel, a fire started on the balcony of the unit where paints, solvents, and rags were being stored by the company hired to remodel and restore. The fire caused the sprinkler system to engage, resulting in water damage to multiple units throughout the condominium. Following the fire, one of the residents (the plaintiff) sued both defendants to recover damages caused by the water damage to her unit. The plaintiff damages included storage fees while her unit was repaired and the expense for alternative living arrangements during that time.

The Strategy
Smith Freed & Eberhard Partner Thomas McCurdy and Associate Attorney Ashley Nagrodski were asked to represent the defendant that purchased the unit. Following a careful review of the evidence obtained and after meeting with her clients, Ashley denied liability on behalf of her client and filed a cross-claim against the company that was hired to remodel the unit. Unsurprisingly, the company hired for reconstruction and remodel refused to accept liability, and early attempts to settle the claim were unsuccessful.

Ashley was able to save costs for her client by relying on the expert retained before litigation, who performed an investigation shortly after the incident.  The investigator determined the fire started by spontaneous combustion of staining materials being stored on the balcony by the company hired for reconstruction and remodel.

After speaking with the expert, Ashley reaffirmed her position that her client was not responsible for the plaintiff’s damages and that sole liability resided with the company hired for the remodel. With that position in mind, Ashley and her team worked hard to prepare for arbitration. Fortunately, the other defendant saw the strength of Ashley’s argument and chose to settle just minutes before arbitration.

The Outcome
Ashley’s approach to the case and preparation proved to be successful.  The company that was hired for remodel accepted responsibility settled the case right before arbitration and agreed to pay the entire claim to the plaintiff.  In the end, Ashley was left with a happy client, who was not required to pay any portion of the claim.  The outcome of this case is particularly important because the parties anticipate further claims will be made by other condominium owners in the future.

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Litigation Success: Preparation Always Pays Off, Especially at Trial

Preparation Always Pays Off, Especially at Trial

Smith Freed Eberhard Partner Katie Buxman recently obtained a defense verdict in favor of her client by effectively cross examining the plaintiff’s expert witness to show the jury that the plaintiff had given the expert only a portion of the relevant evidence.

The Background Story

In a motor vehicle accident case, the driver of a car (the plaintiff) filed suit against the driver of another car (the defendant) alleging that the defendant rear-ended his car on the highway. Although the impact was minimal, the plaintiff sought $1.2 million in damages, claiming that he suffered a re-herniation of a disc in his low back and that he was disabled as a result of the accident and can no longer work. Further, he claimed that the accident caused injuries to his neck, shoulder, left leg, and left arm and that he suffered from headaches, bladder issues, and insomnia.

The Strategy

Smith Freed Eberhard Partner, Katie Buxman was asked to represent the defendant. Katie’s initial investigation and discovery revealed that the plaintiff had preexisting injuries. In fact, many of the plaintiff’s claims were similar to his complaints before the accident. Katie decided that it would be unwise to deny liability. Instead, it would be wiser to attack the plaintiff on the allegation that the accident with Katie’s client was a direct cause of his injuries.

As trial approached, Katie, associate attorney Heather Lee, and the rest of their team worked hard to obtain and prepare evidence to attack the plaintiff’s credibility. Katie prepared evidence that would support the position she intended to take at trial: while there is no dispute that the defendant was at fault, the plaintiff had many preexisting injuries, and it was unlikely that such a minor rear-end accident could have caused the nature and extent of the injuries as claimed by the plaintiff.

The hard work and pre-trial preparation paid off. Katie had a strong line-up of experts who thoroughly reviewed all the evidence Katie provided and came to the same conclusion. The accident reconstructionist, the doctor who performed an Independent Medical Examination (“IME”) of the plaintiff, and the biomechanical expert were prepared and presented well to the jury. The experts’ evidence pointed to the fact that it was unlikely that the plaintiff’s injuries were related to the accident with Katie’s client.

Katie then cross-examined the plaintiff and expert witnesses who testified on behalf of the plaintiff. Katie made sure that the jury could see the contradictions between the plaintiff’s medical records and his testimony during depositions. Katie cross-examined the IME doctor for the plaintiff and found that the plaintiff failed to provide the doctor with information relevant to his testimony at trial. For instance, the doctor did not obtain various missing pre-accident records and did not know that the plaintiff missed significant hours of work before the accident. When questioned by Katie, the doctor had no choice but to admit that without all the evidence, he was unable to testify to a degree of medical certainty that the injuries suffered by the plaintiff were related to the accident with Katie’s client.

The Outcome

Katie’s approach to the case, strategy at trial, and the help of her team proved to be successful. The jury found Katie’s argument and evidence to be credible. After just 40 minutes of deliberations the jury returned a verdict for the defense, finding that the plaintiff was not entitled to any damages.

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Occam’s Razor at Work

Occam’s Razor at Work: Simplifying Matters for Jurors

Smith Freed Eberhard Partner Phil Bennett recently overcame steep odds to achieve a favorable verdict for his client by successfully framing the case as a simple matter to which the jurors already had the answer, thereby avoiding a thorough examination of certain specific details and effectively dismissing otherwise solid arguments by the defense.

The Background Story

This matter involved an employee of a film production company injuring a cyclist while driving a rental vehicle in the course of his work. The cyclist filed two suits; one against the driver, and a second against the insurers for the driver, the film production company and the rental car company (Mr. Bennett’s client). Two years after filing, all but the rental car company had settled out. In fighting these claims, the rental car company ended up with a judgment against it for $13,000.00 in damages and $30,000.00 in attorney fees, instead of settling for an estimated $4,000.00.

Next, the rental car company sued the film production company for retrieval of that $43,000.00 plus its own attorney fees on the grounds that, if extra protection is not purchased at the time of rental, the rental agreement indicates that any damages to or caused by the vehicle while in a renter’s possession are the responsibility of the renter.

The defense countered with the argument that the rental car company should have settled for the reasonable sum of $4,000.00 and then billed them for that amount, rather than racking up an additional $39,000.00 in damages and then seeking reimbursement for that unnecessary sum. Due to the strength of this argument, the rental car company’s prior counsel was forced to withdraw only two and a half months prior to trial to allow him to testify to the strategy he employed in resolving the claim and the associated high costs. In a particularly problematic turn, it was discovered that prior counsel had recently penned an article in which he recommended early resolution of these types of claims, and then chasing the money, instead of fighting tooth and nail – the opposite of his actions.

Further, the defense pointed to a clause in the rental agreement that indicated that the rental company would indeed owe PIP in cases like these, if a state requires it by law. The fact that Oregon law does contain such a stipulation was perhaps the most significant hurdle among many for Mr. Bennett.

The Strategy

In order to frame the matter as a straightforward one that didn’t require deep consideration of specific contractual elements, Mr. Bennett, beginning in voir dire, spent more time than usual talking with the jurors about things they were familiar with. For example, he asked the jurors if they had ever rented a car before, if they had ever read the associated contracts before and the fine print therein, and, using suggestive diction, asked if it was correct that all the jurors already knew that if you don’t purchase additional protection from a rental company then you are liable for any damages incurred.

By focusing on shared experiences and assumptions, Mr. Bennett framed the case to the jury as an easy one in that the jurors were already personally familiar with the rules that spoke to the issue at hand. He lent further support to this theme of simplicity by using only a few, straightforward, clear exhibits in contrast to an extensive PowerPoint presentation delivered by the defense. In doing so, the defense’s arguments appeared convoluted and tangential in relation to what came across as a simple, easy-to-understand position.

The Outcome

The jury delivered an unusual verdict that represented a sort-of middle ground in terms of damages. The decision indicated that the rental car company failed to mitigate costs and fees but that the defendant had breached the rental agreement. As such, they granted restitution for all medical payments (minus the $4,000.00 it was presumed the rental car company could’ve settled for) along with one-half of the attorney fees sought, for a total of $25,000.00.

This sum represented a higher number than the offer of judgment from a few months prior, ensuring another very appreciative client for Mr. Bennett, particularly in light of the difficulties posed by the defense’s valid contractual argument and the questionable strategy of the client’s prior counsel.

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Cleaning the Slate

Cleaning the Slate: Using Witness Strengths to Dispel Juror’s Pre-Conceived Notions

Smith Freed Eberhard Partner Catie Becker recently obtained a defense verdict from a trial where liability and damages were disputed by way of a thorough analysis of Plaintiff’s medical records coupled with a concerted effort to dispel the pre-conceived negative attitudes toward elderly driving among the jurors.

The Background Story

Ms. Becker represented a 96 year-old client who passed away a few months before trial.  Ms. Becker’s client was confident that, at the time of the incident, she was traveling through a green light and that the co-defendant failed to yield, turned left in front of her, and, in so doing, pushed both defendants into plaintiff who was fully stopped at a traffic light.

Co-defendant argued that, in addition to speeding, Ms. Becker’s client was too elderly to drive and, had she been younger and more alert, she could have avoided the collision.  Plaintiff also claimed that he required surgery to alleviate his continued neck pain caused by the accident.

 The Strategy

During voir dire questioning, it was clear that the jury, based on their own experiences, were concerned with elderly persons driving.  As such, Ms. Becker immediately alleviated this concern through her opening, by highlighting the testimony that the jury would hear via a video deposition of Ms. Becker’s client. The testimony would prove that she was not confused or slow at reacting, as she had very detailed and clear testimony as to the streets she traveled and the route she would have taken if not for the accident. The testimony would also include an independent witness who would testify that the light was green and that there was no way for Ms. Becker’s client to avoid the accident.

Ms. Becker also challenged Plaintiff’s claims that he needed future surgery.   Ms. Becker’s medical expert stated that Plaintiff’s continued issues were due to his poor posture.  Plaintiff had never shown his treating providers the prior records and his testifying chiropractor claimed he had no prior issues.  Ms. Becker was able to impeach him with a prior record, that otherwise would have been barred because Plaintiff was asymptomatic in the couple of years before the collision, which  showed that Plaintiff did have prior neck pain due to posture issues.  Plaintiff also displayed forward head posture throughout trial which Ms. Becker’s expert pointed out during his testimony.   Plaintiff also retained a rebuttal expert who, due to time issues, was subject to a video deposition in the middle of trial.  Ms. Becker’s cross-examination was so effective that Plaintiff’s counsel decided not to show the jury the testimony.

The Outcome

Ms. Becker received a defense verdict, and the judgment that Co-defendant faced was less than pre-trial settlement offers.  The jury rejected Plaintiff’s claims of future treatment and did not believe that the accident caused his continued complaints.

 

 

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Whose Fault is it Anyway?

Tasha Lyn Cosimo recently won a complete defense award in a hotly disputed liability case.  The case in question was a classic car collision in which each driver claimed that the other was at fault in the accident.

The Background Story

Our client’s version of the facts was that the plaintiff cut him off when he made a last minute right turn from the wrong lane across two lanes of traffic.  The plaintiff stated that our client rear-ended him when he made a turn from the proper lane and did not cut off our client.  Examination of the damaged vehicles gave no conclusive evidence as to who caused the accident.  In addition, there were no witnesses to the collision other than our client, the plaintiff and the plaintiff’s passenger.

The Strategy

The plaintiff did not make it easy for Tasha to work up the case.  In fact all of the discovery documents that our defense team requested for case were not provided until four months after the deadline.  When Tasha deposed the plaintiff’s passenger, it turned out that he did not agree with the plaintiff’s view of how the accident happened.  In fact, he stated that the plaintiff did turn from the wrong traffic lane, which supported the defense argument.  Tasha never actually met the plaintiff in the case; she ended up deposing him over the phone.

On the evening before the arbitration, Tasha got wind that the plaintiff’s passenger, who was key to her case, might be getting cold feet when it came to testifying.  Realizing that if he didn’t testify it would have a dramatic impact on her case, Tasha stayed late into the night and wrote a motion to allow his testimony from the deposition to be allowed in as evidence.

The Outcome

Sure enough, on the day of the arbitration the plaintiff’s passenger did not appear.  When they attempted to reach him by phone, it was discovered that the phone was disconnected.  Tasha’s motion to allow the deposition transcript was granted.  Due to Tasha’s advocacy the arbitrator awarded a complete defense award!   Our client was extremely pleased with the result, and is hoping that this verdict will dissuade any future liability claims or lawsuits.

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No Tolerance For Tardiness

No Tolerance For Tardiness: Courts Unforgiving In Response to Inaccurate Assumptions of Statute of Limitations Tolling

Smith Freed & Eberhard partner Matt Ukishima recently achieved a speedy dismissal of a personal injury and dram shop claim against his client by maintaining that the statute of limitations begins to accrue when a plaintiff becomes of his/her injuries and their cause, not when the plaintiff recovers to the point of being well enough to make a claim.

The Background Story

In this case, Mr. Ukishima defended the Confederated Tribes of the Siletz Indians (“the Tribe”) against claims filed in Tribal Court. The Tribe owned and operated the Chinook Winds Casino in Lincoln City, Oregon, at which Plaintiff was physically assaulted by two drunk patrons. Plaintiff alleged that the Casino served alcohol to the two assailants when they were already visibly intoxicated. Plaintiff further alleged the Casino was negligent and breached statutory and common-law duties to maintain safe premises by failing to provide proper security, by over-serving alcohol to patrons, and by failing to train bartenders to identify intoxicated persons. Plaintiff claimed to have sustained severe and permanent head and traumatic brain injuries as a result of the attack.

The Strategy

Although Plaintiff had filed her tort claim notice in a timely manner, it appeared that she had commenced her lawsuit two days after the applicable statute of limitations expired. The altercation occurred on July 8, 2007 and plaintiff did not file her complaint until July 10, 2009. The applicable tribal code provided that the statute of limitations must be brought within two years from when the cause of action accrues. On these grounds, Mr. Ukishima filed a motion for summary judgment to dismiss the case. As expected, however, Plaintiff argued that the statute of limitations was tolled because she was legally incapacitated immediately following the incident due to the head injuries she sustained in the altercation. She argued that the statute of limitations should not have begun to accrue until she had received more detailed information from law enforcement on July 12, 2007. The court rejected plaintiff’s arguments and granted Mr. Ukishima’s motion for summary judgment, with the tribal judge determining that the statute of limitations began to accrue when plaintiff knew of her injury and its cause on July 8, 2007, and that she therefore had failed to file her complaint until two days after the expiration of the statute of limitations on July 8, 2009.

The Outcome

By achieving this dismissal on procedural grounds, Mr. Ukishima saved his client significant fees/costs associated with discovery, depositions, independent medical evaluations (IME), mediation, expert fees, and possibly trial. His strict adherence to the rules and ordinances specific to the venue in which he was practicing provided Mr. Ukishima a clear, efficient, and low cost path to victory for his client.

 

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Using the Right Rulebook

Using the Right Rulebook: Applying Comprehensive Understanding of Tribal Court Procedures to Achieve an Efficient Dismissal

Smith Freed & Eberhard partner Matt Ukishima recently achieved an impressive dismissal of a personal injury claim by utilizing his extensive knowledge of tribal court rules and ordinances to invoke his clients’ right to sovereign immunity and achieve a positive result in an efficient and cost effective manner.

The Background Story

In this case, Mr. Ukishima’s client was the Confederated Tribes of Coos, Lower Umpqua, and Siuslaw Indians (“the Tribes”). The Tribes own the Three Rivers Casino in Florence, Oregon. On the night in question, Plaintiff tripped over a parking block in the Casino’s outdoor parking lot. The parking block was situated in the walking area between two stalls with parked vehicles, rather than directly in front of a stall. In addition, a lack of lighting may have contributed to her failure to notice the parking block. As a result of the trip and fall, Plaintiff suffered a full comminuted fracture of the proximal humerus of her left shoulder causing permanent injury, sprain/strain injuries to various parts of her body, an impact trauma to her nose, and mental pain and suffering. Plaintiff sought over $650,000 in damages.

The Strategy

Plaintiff originally filed suit in Tribal Court. Based on Mr. Ukishima’s review of the file material and understanding of this tribal court’s rules and ordinances, he recognized that Plaintiff did not commence her lawsuit in a timely manner within the applicable statute of limitations, nor did she file a tort claim notice providing the tribal court with subject matter jurisdiction. At the initial mandatory court conference, Mr. Ukishima informed the tribal judge of his intent to dismiss the case on these grounds. Counsel for Plaintiff surreptitiously offered to dismiss the case and enter a judgment of dismissal if the Tribes agreed not to seek costs, to which Mr. Ukishima’s client agreed. Plaintiff’s counsel then filed a new lawsuit in Oregon state court arguing both that this court had subject matter jurisdiction and that the Plaintiff met the 2-year statute of limitations. Mr. Ukishima, informed by his extensive familiarity with tribal court proceedings, responded by filing a motion to dismiss, invoking the Tribes’ right to sovereign immunity and the Oregon state court’s lack of jurisdiction. Plaintiff’s counsel filed a cross-motion to dismiss the Tribes’ affirmative defenses of lack of jurisdiction and statute of limitations relying upon the Compact between the State of Oregon and the Confederated Tribes, arguing sovereign immunity is waived up to the limits of the Tribes’ liability insurance policy in state court. The parties held oral arguments and the presiding judge granted Mr. Ukishima’s motion and denied Plaintiff’s motion.

The Outcome

Because of Mr. Ukishima’s proficient understanding of the Tribes’ sovereign immunity rights and a thorough analyses and careful study of this Tribes’ relevant law, Mr. Ukishima initially was able to remove the case from tribal court, then successfully defeated plaintiff’s aggressive efforts to revive the claims. This appeared to be a case of at least shared liability by the Tribes as the parking block was not properly situated. Further, Mr. Ukishima would have also had to hire a lighting expert and human factors expert to prove plaintiff’s negligence, and possibly a building code expert. As such, Mr. Ukishima not only protected his client from liability but also saved his client the fees and costs associated with discovery and depositions. In so doing, Mr. Ukishima won on the law alone, achieving a quick and economic dismissal for his appreciative clients.

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Know The Law In And Out

Know The Law In And Out: Developing The Right Game Plan To Keep Costs Down

Smith, Freed & Eberhard associate CJ Martin recently won an impressive Motion for Summary Judgment by way of a thorough analysis of the relevant case law that eliminated the need for costly discovery.

The Background Story

CJ’s client sold her house to the family of the Plaintiff in Clark County, Washington in 1996, at which time the Plaintiff was only four years old. Ten months after moving in the Plaintiff fell from a deck stairway that was missing its railing, resulting in a head injury that caused him seizures throughout his childhood (of which his most recent was approximately five years prior to his filing suit). CJ’s client agreed that she had promised to install the railing but that she did not arrange for it to be fixed until after his fall. Because the statute of limitations tolled until the Plaintiff became an adult, he was able to bring suit for personal injuries alleging both negligence under landowner/premises liability theory as well as breach of contract. Further, the Plaintiff claimed a lifetime of lost wages because the only job he wanted (now, as a 20 year old) was as an underwater welder – a position inaccessible to him on account of his seizure history rendering him unable to obtain scuba certification.

The Strategy

On the negligence claim CJ cited case law that the seller had no duty for an open or obvious visible defect after the sale, and especially after the buyer had sufficient time to inspect. Given that the defect was clear for the ten months during which the Plaintiff resided in the home prior to the accident, the Plaintiff caved when presented with this case law and research and dropped that claim. On the contract claim, CJ argued that the agreement to fix the railing had to be in writing because it was for land sale. That didn’t work, however, when Plaintiff’s father claimed to remember a written agreement to that end that was lost in the intervening years. Because the accident and sale occurred in 1996, similar instances of fading memory and misplaced or poorly preserved documents were abundant. Undaunted, CJ then argued that the Plaintiff, at 4 years old, was not an intended third party beneficiary of the agreement and therefore had no standing to enforce the agreement. Simply put, if they had a problem with it, Plaintiff’s father (the purchaser of the home) should have sued immediately following the accident. In response, the Plaintiff tried to create sufficient evidence by claiming that his father had told seller’s agent about his child’s presence being the reason why they wanted the railing. The case law and the judge required more than that, however, and CJ’s motion for summary judgment was granted.

The Outcome

By undertaking a thorough analysis of relevant case law, and moving for summary judgment, CJ saved her client significant costs as she avoided the need to do any medical document discovery, hire any medical experts, do any depositions, hire any safety/construction/deck experts, or even go out to the house. CJ won on the law alone, achieving a quick and economical dismissal for her very appreciative client.

 

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