OREGON TRIAL LAWYERS ASSOCIATION In the Service of Justice Fall 2017 Damages THE AMERICAN ASSOCIATION for JUSTICE WE ARE STRONGER TOGETHER JOIN US IN THE FIGHT FOR JUSTICE The American Association for Justice (AAJ), formerly the Association of Trial Lawyers of America (ATLA®), is an organization committed to promoting accountability and safety, advocating for a balanced civil justice system, improving our communities, and educating lawyers to provide excellent advocacy for their clients. As a member of AAJ, you will play a meaningful role in the fight to protect the Seventh Amendment while accessing the tools you need to most effectively represent your clients against even the most powerful corporations and industries. AAJ is the only national plaintiff lawyer association working as an advocate for trial lawyers on a broad range of issues, using lobbying, litigation, and public education to promote a fair and effective civil justice system. JOIN THE AMERICAN ASSOCIATION FOR JUSTICE Join us online at www.justice.org/Join or by contacting us at 1-800-424-2727. YOUR CLIENTS NEED YOU. WE NEED YOU. WE CAN DO THIS TOGETHER. Fall 2017 Board of Governors Officers President Greg Zeuthen To ensure access to Oregon’s justice system, promote juries and jury service. President-elect Sonya Fischer Articles Secretary-Treasurer Ronn Elzinga Parliamentarian The Reptile: Arguing damages — beyond David Ball Tim Williams Jim Nelson ...................................................................................................... 8 Immediate Past President Same 9 Tina Stupasky David Paul .................................................................................................... 11 District Governors The Measure of Magnitude Quinn Kuranz — District 1 Kristen West McCall .................................................................................... 14 David Sugerman — District 1 Dick Adams — District 2 Andrew’s Last Raft Trip Kelly Andersen — District 2 Tim Nay ....................................................................................................... 18 Rob Beatty-Walters — District 3 Patrick Block — District 3 The Affordable Care Act and future medical bills Derek Johnson — District 4 Michele Nielsen ............................................................................................ 21 Erin Zemper — District 4 Ryan Jennings — District 5 Extracontractual Damages in first party insurance cases Jodie Phillips Polich — District 5 Samantha Copeland ...................................................................................... 28 Governors-at-Large Punitive Damages: Why road ragers are the next drunk drivers Brent Barton Michelle Freed Shenoa Payne ................................................................................................ 32 Steve Berman Neil Jackson Accountability and Justice: While recovering damages in discrimination cases Melissa Bobadilla Rob Kline Beth Creighton Craig Nichols Quinn Kuranz ............................................................................................. 34 Ronn Elzinga Preliminary Injunctive Relief: When damages are not enough Jim Vogele ................................................................................................... 38 New Lawyer Governors Shenoa Payne Blair Townsend Departments AAJ Governors President’s Message: From the land of gracious living Kathryn Clarke Greg Zeuthen ................................................................................................ 2 Tom D’Amore Tim Williams View from the Bench: Writing from a reinforced perspective Justice Meagan Flynn ...................................................................................... 4 AAJ State Delegates Lara Johnson OTLA Guardians of Civil Justice Paul Loving donors .......................................................................................................... 22 Michael Wise Comp Corner: Brown – the silver lining Julene Quinn ................................................................................................ 42 OTLA Staff Email, (firstname)@oregontriallawyers.org Between the Sheets Main phone, 503-223-5587 Cody Hoesly, Lisa T. Hunt, Christine Moore ................................................. 43 Amy Anderson, 503-345-0043 Communications Director Kathleen Bergin, 503-223-5587 The views expressed in Trial Lawyer are solely those of the authors and do not necessarily Education Director reflect the policies or opinions of the Oregon Trial Lawyers Association, its members, Board of Governors or staff. Trial Lawyer is a quarterly publication of the Oregon Trial Lawyers Beth Bernard, 503-223-2558 Association and is distributed as a membership benefit. For permission to reprint articles, Executive Director contact Michael Kesten at 503-246-1126, [email protected]. For advertising rates, Nora Fogarty, 503-223-5587 contact [email protected] or 503-445-2240. Development & Membership Director Publications Committee Co-Chairs — Dick Adams, 541-476-6627, [email protected]; Jake Hessel, 503-223-5587 Marilyn Heiken, 541-484-2434, [email protected] Political Organizer Editor — Michael Kesten, KestenMedia, 503-246-1126, [email protected] Arthur Towers, 503-345-0045 Political Director/Lobbyist Oregon Trial Lawyers Association, 319 SW Washington St., Ste. 607, Portland, OR 97204 503-223-5587, [email protected], www.oregontriallawyers.org Trial Lawyer • Fall 2017 1 President’s Message Greg Zeuthen From the land of gracious living By Greg Zeuthen see. I listened to a bunch of words I did graduated from law school at age 47, two OTLA President and Guardian not understand and then rode home. I years after I became a lawyer. soon learned Richard Nixon was much- In the summer of 1973, I was glued was 8 years old when former Vice despised in our home. Nixon, of course, to the TV — along with much of the I rPresident Richard Nixon brought his won that campaign, despite the fact my nation — following the historic Water- 1968 presidential campaign about a mile family named our pet desert tortoise gate hearings. I was particularly im- from my home. It was an appropriate Humphrey. pressed with the way North Carolina stop for his campaign — we lived in Senator Sam Ervin, chair of the Senate Yorba Linda, California, Nixon’s birth- Standing strong panel, guided the investigation into the place. The concepts of right and wrong and Watergate break-in. It was about that Our town’s motto was “The Land of the value of hard work were instilled in time, at the age of 13, I decided I want- Gracious Living.” It was a wonderful me by my parents. My father taught me, ed to be a lawyer. It wasn’t just Watergate, place to grow up. There were many or- through words and actions, it was im- it was everything — the lessons of my ange groves, avocado trees and fields in portant to stand up against the prejudice parents, the civil rights movement, the which to play. We played pick-up base- and bias of others. During the 1972 war protests, striking farm workers. I ball, football and basketball games all election cycle, my father wrote a letter to knew I wanted a profession where year round. As a young teen without a the local newspaper in opposition to one I would be helping people, where I would car, my friends and I rode bicycles every- reader’s tirade against people of color. stand up for the rights of others. where including the 20 miles (one way) Although I do not remember the specif- to hang out at the Newport Beach pier. ics, I remember Dad’s letter mentioning Fighting for the underdog he thought “that type of thinking died The year I graduated from high in a bunker in Germany in 1945.” It school, 1977, my dad’s job took us to turned out the man, a John Birch Society Utah. I enrolled at Weber State in Og- member, lived two doors down the street den. My first legal job was working as an from us. intern for Utah Legal Services while at- My mother taught me the value of tending college. My work there opened hard work and getting a good education. my eyes to the hardships faced by the With an education, she would say, I disabled, the marginalized and the work- could attain anything I wanted in life. ing poor. Many of our clients were His- My parents made it clear they would not She demonstrated her principles in pur- panics and African-Americans who be attending Nixon’s campaign appear- suit of her goals. Though she was a stay- needed assistance with Social Security ance and would not take me to witness at-home mom and community volunteer Disability and landlord-tenant disputes. the event. So, I did what every kid did in my early years, she later enrolled in The two years I spent with Legal Ser- back in the 60s — I jumped on my red college — the same year I entered the 9th vices gave me confidence to fight for the Schwinn bicycle and rode down the main grade. Eight years later, we both gradu- underdog. boulevard in town to see what I could ated from college on the same day. She After obtaining an economics degree, 2 Trial Lawyer • Fall 2017 I moved to Portland and attended Lewis were members of OTLA. In 1999, I through our work. The most rewarding and Clark Law School. I was still sorting leased space with former OTLA Presi- cases are often those where the benefit to out in my mind what type of law I dent Jeff Foote and Larry Baron. Now- the client is far outweighed by the fee wanted to practice. Initially, I explored retired OTLA member Mike Casey also earned. I did not become a lawyer for the the possibility of practicing environmen- shared