19 Trial Lawyer • Fall 2022 Our panel was comprised of a claimant’s arbitrator, an insurer’s arbitrator and a neutral. The hearing lasted three days. The panel and parties agreed to an inperson hearing with masks as appropriate. Medical witnesses testified via Zoom. Establishing liability We asserted the driver’s liability was clear under general negligence principles and negligence per se. Our negligence per se claim was based on the motorist’s violation of ORS 811.050: (1) A person commits the offense of failure of a motor vehicle operator to yield to a rider on a bicycle lane if the person is operating a motor vehicle and the person does not yield the right of way to a person operating a bicycle, electric assisted bicycle, electric personal assistive mobility device, moped, motor assisted scooter or motorized wheelchair upon a bicycle lane. Under the statute, we claimed the driver’s decision to turn under these circumstances demonstrated her failure to yield rendering her negligent per se. We also argued she failed to keep a proper lookout and proper control over her vehicle when she turned rendering her negligent under common law. The underlying case was settled without suit and the driver was not deposed. However, as a condition of the underlying settlement, we received a copy of the driver’s statement. Rather than subpoena the motorist to arbitration, the UIM carrier agreed to admission of her statement at the hearing. In that statement, she stated: “I just assumed I had enough room to turn before he would get up there, and so I proceeded to turn...” Her assumption that she had enough room to turn — rather than making a reasonable effort to determine whether she had room to turn — demonstrated, we argued, her lack of due care. We gathered and presented sworn declarations of three witnesses who were directly behind the motorist’s vehicle and See Brain Injury p 20 testified the driver turned into and struck Smith. We also cited the statement in the respondent’s arbitration brief that the motorist “turned right into a parking lot and struck claimant” as an admission in the pleadings (ORCP 19) and contended that any argument that Smith instead struck the vehicle after it turned directly in front of him contradicted that pleading, citing UCJI 13.03. The insurer admitted the driver was at fault but contended Smith was comparatively at fault for failing to see the driver’s signal and failing to keep a proper lookout. Smith was helmeted, so the insurer did not attempt to claim comparative fault on the basis he was unhelmeted. (Of course, this would have proved unsuccessful under ORS 814.485 which prohibits evidence of lack of headgear for the purpose of reducing the amount of damages or to constitute a defense in an action brought by a cyclist.) Regarding signaling, the driver said in her statement she signaled before the collision. However, she did not specify when. Citing ORS 10.095(7) and (8) and UCJI 12.01, allowing the panel to consider in evaluating the evidence the power of each side to produce evidence and to view with distrust weaker and less satisfactory evidence when the party could have produced stronger evidence, we argued the insurer had within its subpoena power to bring the driver to the hearing to testify regarding when she activated her signal but did not. Further, we argued that even if the driver had signaled at some point, based on intersection dimensions, she could not have met the requirements of ORS 811.335 which requires a turning motorist to signal “continuously during not less than the last 100 feet traveled by the vehicle before turning.” See, ORS 811.335(1)(b). Based on the intersection’s dimensions, the driver would have had to begin signaling at the east crosswalk (while stopped or as she proceeded when the light turned green). There was no evidence she began her signal at that location. Indeed, doing so would have been illogical. Last, we cited UCJI 20.06, Right to Assume Law Obeyed: “Every person has a right to assume that others will obey the law, unless and until that person knows or in the exercise of reasonable care should know otherwise.” Smith did not know until seconds before the driver turned into him that she was going to enter the bicycle lane and strike him. Until that moment, he had the right to assume she would — in compliance with the law— yield to him as a bicyclist in a bicycle lane. On these bases, we argued the liability rested 100% with the driver. In a mild TBI case, the collision facts are often as important to proving injury as they are to proving liability. Any and all facts that tend to show “an impact to the head or other mechanisms of rapid movement or displacement of the brain within the skull” from the diagnostic criteria in the DSM V (the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition) are significant and should be elicited and emphasized. Even, as here, where the collision occurred at a relatively low speed, Smith testified he struck his head on the pavement and his helmet had visible cracks. The responding officer noted Smith’s reports of head pain at the scene. These facts were significant to the diagnosing doctor’s opinions on injury and causation. Proving injury and causation Smith bruised his thigh, injured his left shoulder and sustained a mild traumatic brain injury with headaches, cognition difficulties and vision disturbance. The thigh and shoulder injuries resolved quickly. The challenge and focus of our case was on proving the nature and extent of the traumatic brain injury. At the hearing, we called Danielle Erb, MD, a physical medicine and rehabilitation physician, board certified in internal medicine and a medical special-
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