OTLA Trial Lawyer Fall 2022

15 Trial Lawyer • Fall 2022 influence of the lorazepam at the time the crash occurred. When interviewed by the police, Downing admitted she took lorazepam earlier that same morning — at 8 a.m. — not at night to help her get to sleep as prescribed by her psychiatrist, Dr. Bradford Ashley. Downing’s psychiatric records revealed she had a documented history of substance abuse and consistent pattern of not taking her medications as prescribed. And the records also revealed that Dr. Ashley had prescribed Downing the lorazepam three days before the crash — at Downing’s request. Downing was prosecuted in state criminal court, and eventually convicted of the crimes of manslaughter in the first degree (two counts) and assault in the second degree. She is currently serving a 220 month prison sentence. The complaint Our firm filed a civil lawsuit against Downing and Dr. Ashley for causing the death of Green and Cervantes and the serious injuries to Echeverria. The obvious problem with our claims against Downing was that she was driving without insurance and had no assets, making her judgment proof. So, our focus was on our claims against Downing’s psychiatrist, Dr. Ashley, who our experts agreed had fallen below the standard of care by prescribing the lorazepam to Downing, given her documented history of substance abuse and consistent pattern of not taking her medications as prescribed. It was clear a jury would find that Downing was, in large measure, at fault for causing the crash and the resulting damages to our clients. We also had medical experts who agreed Dr. Ashley was also, in part, responsible for causing the crash. They agreed his conduct fell below the standard of care and was a substantial factor in causing the resulting crash by prescribing the lorazepam to Downing given her history and at her request just three days prior to crash. To have the best result in obtaining a verdict that held Dr. Ashley responsible for damages to our clients, we alleged in the complaint Downing had acted in “wanton” disregard of the safety of our clients — that she had acted “wantonly” when she took the lorazepam that morning, then a few hours later decided to drive while impaired by the lorazepam that Dr. Ashley prescribed for her. As a matter of law, Downing’s criminal convictions resulted in issue preclusion. Downing’s fault and liability for causing the crash and resulting deaths and injuries were established as a matter of law, so Downing could not contest this at trial. Consequently, as to Downing, the verdict form would look like this: Question 1A: Did defendant Sophia Downing act in a wanton manner in one or more of the ways alleged in plaintiffs’ complaint? ANSWER: Yes (Yes or No) The court had already ruled as a matter of law that defendant Sophia Downing acted in a wanton manner in one or more of the ways alleged in plaintiffs’ complaint. Question 1B: Was the wanton misconduct of Sophia Downing a cause of damage to plaintiffs? ANSWER: Yes (Yes or No) The court had already ruled as a matter of law that the wanton misconduct of Sophia Downing was a cause of damage to plaintiffs. Question 2A: Was defendant Dr. Ashley negligent in one or more of the ways alleged in plaintiffs’ complaint? ANSWER: ___ (Yes or No) * * * If your answer to question 2A is “Yes”, then proceed to question 2B. Question 2B: Was the negligence of defendant Dr. Ashley a cause of damage to the plaintiffs? ANSWER: ___ (Yes or No) * * * If your answer to question 2B is “Yes”, then your verdict is in favor of plaintiffs and against both defendant Sophia Downing and defendant Dr. Ashl ey. Proceed to question 3. Question 3: What are plaintiffs damages? ANSWER: Economic Damages $__________. Noneconomic Damages $__________. The verdict form would not contain any questions asking the jury to compare the proven wanton conduct of defendant Sophia Downing with any proven negligence of defendant Dr. Ashley. Oregon law prohibits the jury from apportioning fault between a negligent tortfeasor and a wanton tortfeasor. Pleading “wanton misconduct” To take advantage of Oregon law that prohibits the jury from apportioning fault to a liable defendant who has injured or killed a bicyclist, pedestrian or other vulnerable road user, you must plead that the tortfeasor acted in a “wanton” manner, followed by the particular allegations of wanton misconduct. Importantly, do not plead that the tortfeasor acted “intentionally” as it is standard See Vulnerable Road Users 16 The red arrow shows the path of the defendant driver as she drove her SUV into three students about to cross Winema Place NE in Salem. Prior to trial, the driver's actions were determined to be “wanton.”

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