Punitive damages are determined by juries in Oregon. Despite recent efforts in some states to limit the scope of punitive damages available to litigants in court cases, the Oregon Courts have consistently allowed large punitive damage awards, if the jury has evidence to conclude that the conduct was sufficiently reprehensible. In this regard, the Oregon Courts give great deference to the jury’s determination of what is appropriate. They will not independently overrule the jury because they have come to a different conclusion about what is appropriate. Although the evidence in support of punitive damages must be clear and convincing, the standard of proof “relates how a jury weighs the evidence, not to how a trial court assesses the capability of the evidence to establish facts.” See Faber v. Asplundh Tree Expert, 106 Or App 601, 606, 810 P2d 384, rev den, 312 Or 80 (1991). Also see Bolt v. Influence, Inc. 333 Or 572, 578 n 2, 43 P3d 425 (2002).
If an ERISA based plan is not self-funded, the plan is subject to state insurance regulation. Statutory limitations on subrogation and lien rights of health plans and auto insurance policies can be considered insurance regulations that are not subject to preemption. See FMC Corp v. Holliday, 498 U.S. 52 (1990).
Even in the self-funded setting, all is not hopeless. In the case of Providence Health Plan of Oregon v. Carol Simnitt, The District Court in Oregon ruled in 2009 that even though Providence Health Plan was self-funded in this particular case, it was not entitled to either lien recovery or subrogation recovery for its medical expenses, incurred in a third-party motor vehicle accident, because the plan had not specifically excluded the “Make Whole Doctrine.” Providence Health Plan had argued that the plan excluded the Make Whole Doctrine with the following language: