Summer 2011 - Oregon Association of Defense Counsel

Transcription

THE
VERDICT
Trial Lawyers Defending You in the Courts of Oregon
Oregon Association of Defense Counsel Quarterly Magazine
Summer 2011
Defining the Injury
Electronic Medical Records
The “Streisand Effect”
Res Ipsa Loquitur Claims in Bankruptcy OADC
Oregon Association
of Defense Counsel
Summer 2011
2011 OADC Practice Group Leaders
COMMERCIAL
CONSTRUCTION
COVERAGE
EMPLOYMENT
NEW LAWYERS
Paul Conable, Chair
Tonkon Torp LLP
888 SW 5th Ave., #1600
Portland, OR 97204
503/802-2188
503/972-3888 (fax)
paul.conable@tonkon.com
Nicholas Baldwin-Sayre, Chair
Cosgrave Vergeer Kester LLP
805 SW Broadway, #800
Portland, OR 97205
503/323-9000
503/323-9019 (fax)
nbs@cvk-law.com
Robert Sabido, Chair
Cosgrave Vergeer Kester LLP
805 SW Broadway, #800
Portland, OR 97205
503/323-9000
503/323-9019 (fax)
res@cvk-law.com
Amy Joseph Pedersen, Chair
Stoel Rives LLP
900 SW 5th Ave., #2600
Portland, OR 97204
503/224.3380
503/220.2480 (fax)
ajpedersen@stoel.com
Vicki Smith, Chair
Bodyfelt Mount
707 SW Washington St., #1100
Portland, OR 97205
503/243-1022
503/243-2019 (fax)
smith@bodyfeltmount.com
Daniel Larsen, Vice Chair
Ater Wynne LLP
1331 NW Lovejoy St., #900
Portland, OR 97209
503/226-1191
503/226-0079 (fax)
dpl@aterwynne.com
Anne Cohen, Vice Chair
Smith Freed & Eberhard PC
111 SW 5th Ave., #4300
Portland, OR 97204
503/227-2424
503/227-2535 (fax)
acohen@smithfreed.com
Lloyd Bernstein, Vice Chair
Gordon & Polscer
9755 SW Barnes Rd., #650
Portland, OR 97225
503/802-9153
503/242-1264 (fax)
lbernstein@gordon-polscer.com
Todd Hanchett, Vice Chair
Barran Liebman LLP
601 SW 2nd Ave, 23rd Fl.
Portland, OR 97204
503/228.0500
503/274.1212 (fax)
thanchett@barran.com
Ryan Boyle, Vice Chair
Schwabe Williamson
1211 SW 5th Ave., #1500-2000
Portland, OR 97204
503/796-2879
503/796-2900
rboyle@schwabe.com
Heidee Stoller, Publications
Ater Wynne LLP
Portland, OR 97209
503/226-8616
503/226-0079 (fax)
hs@aterwynne.com
Brian Church, Publications
Davis Rothwell Earle & Xóchihua
111 SW 5th Ave., #2700
Portland, OR 97204
503/222.4422
503/222.4428 (fax)
bchurch@davisrothwell.com
Elizabeth Knight, Publications
Dunn Carney
851 SW 6th Ave., #1500
Portland, OR 97204
503/224-6440
503/224-7324 (fax)
eknight@dunncarney.com
Allyson Krueger, Publications
Hitt Hiller Monfils Williams LLP
411 SW 2nd Ave., #400
Portland, OR 97204
503/595.5382
503/228.4250 (fax)
akrueger@hittandhiller.com
Jamie Valentine, Publications
Keating Jones Hughes PC
1 SW Columbia, Ste. 800
Portland, OR 97258
503/222-9955
503/796-0699 (fax)
jvalentine@keatingjones.com
Heidi Mandt, Board Liaison
Law Offices of Kenneth R. Scearce
Building One
4000 Kruse Way Pl., #135
Lake Oswego, OR 97035
503/534-4401
503/534-4409 (fax)
hmandt@travelers.com
Dan Schanz, Board Liaison
Spooner & Much PC
530 Center St., NE, #722
Salem, OR 97301
503/378-7777
503/588-5899 (fax)
dschanz@smapc.com
Jay Beattie, Board Liaison
Lindsay Hart
1300 SW 5th Ave., #3400
Portland, OR 97201
503/226.7677
503/226-7697 (fax)
jbeattie@lindsayhart.com
Jeffrey Eberhard, Board Liaison
111 SW 5th Ave., #4300
Portland, OR 97204
503/227-2424
503/227-2535 (fax)
jeberhard@smithfreed.com
David Campbell, Legislative Rep
Williams Kastner & Gibbs PLLC
888 SW 5th Ave., #600
Portland, OR 97204
503/228-7967
503/222-7261 (fax)
dcampbell@williamskastner.com
Molly Jo Mullen, Board Liaison
Bodyfelt Mount
Portland, OR 97205
503/243-1022
503/243-2019 (fax)
mullen@bodyfeltmount.com
PRODUCT LIABILITY
PROFESSIONAL LIABILITY
TRANSPORTATION
TRIAL PRACTICE
Mary-Anne Rayburn, Chair
Martin Bischoff LLP
888 SW 5th Ave., #900
Portland, OR 97204
503/224-3113
503/224-9471 (fax)
mrayburn@martinbischoff.com
Scott O’Donnell, Chair
Keating Jones Hughes PC
1 SW Columbia, #800
Portland, OR 97258
503/222-9955
503/796-0699 (fax)
sodonnell@keatingjones.com
Wendy Paris, Chair
4000 Kruse Way Pl., #135
503/534-4401
503/534-4409 (fax)
wparis@travelers.com
Jon Stride, Chair
Tonkon Torp LLP
888 SW 5th Ave., #1600
Portland, OR 97204
503/802-2034
503/972-3734 (fax)
jon.stride@tonkon.com
Joshua DeCristo, Vice Chair
Schwabe Williamson
1211 SW 5th Ave., #1500-2000
Portland, OR 97204
503/796-2451
503/796-2900 (fax)
jdecristo@schwabe.com
Jonathan Bauer, Vice Chair
Parks Bauer
570 Liberty St. SE #200
Salem, OR 97301
503/371-3502
503/371-0429 (fax)
jbauer@pbswlaw.com
Eric Meyer, Vice Chair
Zipse Elkins & Mitchell
10200 SW Greenburg Rd., #700
Portland, OR 97223
503/245-3211
503/245-3191 (fax)
eric.meyer@farmersinsurance.com
Eric DeFreest, Vice Chair
Luvaas Cobb
777 High St.
Eugene, OR 97401
541/484-9292
541/343-1206 (fax)
edefreest@luvaascobb.com
Jennifer Durham, Publications
Hiefield Foster & Glascock LLP
6915 SW Macadam Ave., #300
Portland, OR 97219
503/501-5430
503/501-5626 (fax)
jdurham@hfg-law.com
Clark Horner, Publications
Hoffman Hart & Wagner
1000 SW Broadway, 20th Floor
Portland, OR 97205
503/222-4499
503/222-2301 (fax)
crh@hhw.com
Matthew Ukishima, Publications
111 SW 5th Ave., #4300
Portland, OR 97204
503/227-2424
503/227-2535 (fax)
mukishima@smithfreed.com
Kelly Giampa, Publications
1000 SW Broadway, 20th Floor
Portland, OR 97205
503/222-4499
503/222-2301 (fax)
kag@hhw.com
Michael “Sam” Sandmire, Board
Liaison
Ater Wynne LLP
Portland, OR 97209-3280
503/226-1191
503/226-0079 (fax)
mjs@aterwynne.com
Gordon L. Welborn, Board Liaison
439 SW Umatilla Ave.
Redmond, OR 97756
541/548-6044
541/548-6034 (fax)
glw@hhw.com
David Auxier, Board Liaison
Yturri Rose LLP
PO Box S
Ontario, OR 97914
541/889-5368
541/889-2432 (fax)
dauxier@yturrirose.com
Michael Lehner, Board Liaison
Lehner & Rodriques PC
1500 SW 1st Ave., #1150
Portland, OR 97201
503/226-2225
503/226-2418 (fax)
mlehner@lrlawnw.com
OADC BOARD OF DIRECTORS
OFFICERS
JEANNE LOFTIS
President
Bullivant Houser Bailey PC
888 SW 5th Ave., #300
Portland, OR 97204
503.499.4601 • 503.295.0915 (fax)
jeanne.loftis@bullivant.com
The Verdict
A quarterly publication of OADC
GREG LUSBY
President Elect
Arnold Gallagher
PO Box 1758
Eugene, OR 97440
541.484.0188 • 541.484.0536 (fax)
glusby@agsprp.com
MICHAEL (SAM) SANDMIRE
Secretary/Treasurer
Ater Wynne LLP
Portland, OR 97209
503.226.1191 • 503.226.0079 (fax)
mjs@aterwynne.com
FEATURES
3
“Defining the Injury”: Examining the
production of Medical Records in oregon
Elijah B.Van Camp, Brisbee & Stockton LLC
6
Abraham v. T. Henry Construction, Inc., and the
“Streisand Effect”
Jonathan Henderson, Davis Rothwell Earle & Xóchihua PC
8
Electronic Medical Records - Pitfalls &
Practicalities
Clark R. Horner, Hoffman Hart &Wagner LLP
10
Premises Liability: When Life Throws You
Lemonade, Who Is Liable?
Matthew G. Ukishima, Smith Freed & Eberhard PC
12
Can a Plaintiff Abandon an Undiscovered Tort
Claim in Bankruptcy?
Adam S. Gamboa, Harrang Long Gary Rudnick PC
DIRECTORS
DAVID AUXIER
Yturri Rose LLP
PO Box “S”
Ontario, OR 97914
541.889.5368 • 541.889.2432 (fax)
dauxier@yturrirose.com
Jay Beattie
Lindsay Hart
1300 SW 5th Ave., #3400
Portland, OR 97201
503.226.7677 • 503.226.7697 (fax)
jbeattie@lindsayhart.com
Jeffrey Eberhard
111 SW 5th Avenue, #4300
Portland, OR 97204
503.227.2424 • 503.227.2535 (fax)
jeberhard@smithfreed.com
Michael Lehner
Lehner & Rodrigues PC
1500 SW 1st Ave., #1150
Portland, OR 97201
503.226.2225 • 503.226.2418 (fax)
mlehner@lrlawnw.com
HEIDI MANDT
4000 Kruse Way Place
Bldg 1, Ste. 135
503.534.4401 • 503.534.4409 (fax)
hmandt@travelers.com
MOLLY JO MULLEN
Bodyfelt Mount
Portland, OR 97205
503.243.1022 • 503.243.2019 (fax)
mullen@bodyfeltmount.com
DAN SCHANZ
Spooner & Much PC
530 Center St., NE, #722
Salem, OR 97301
503.378.7777 • 503.588.5899 (fax)
dschanz@smapc.com
GORDON WELBORN
Hoffman Hart & Wagner LLP
439 SW Umatilla Ave.
Redmond, OR 97756
541.548.6044 • 541.548.6034 (fax)
glw@hhw.com
ADMINISTRATIVE OFFICE
SANDRA FISHER, CAE
147 SE 102nd
Portland, OR 97216
503.253.0527 • 503.253.9172 (fax)
800.461.6687
info@oadc.com
DEPARTMENTS
FROM THE PRESIDENT
2
RECENT CASE NOTES
16
PENDING PETITIONS FOR REVIEW
22
✔ PRACTICE TIPS
25
LEGISLATIVE UPDATE
27
ASSOCIATION NEWS
29
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Losing Control Without Losing Your Mind
T
he title of this message—
“Losing Control Without Losing Your Mind”—may be misleading as it implies that I may
have some knowledge on the
subjects of 1) control, and 2) cerebral
integrity. It almost raises the expectation that I will bestow upon you wisdom
from my experience. Those of you who
know me may think I
have been in the process of losing my mind
for years. As for losing
control, that’s a different story. Some think
I thrive in chaos. So
whereas this piece may
Jeanne Loftis
not offer sage solutions
to our more common professional dramas,
hopefully, it will make you feel like I do:
that not always being in control is okay.
To get used to working well under a
loss-of-control scenario, it’s best to practice
at home first. Our family keeps us pretty
nimble, but every once in a while you
need to step it up a notch. Presently, my
husband and I are taking care of my five
sister’s kids in addition to our four kids.
We have created a schedule consisting of
a field trip every morning, lunch at home,
and a different community pool every
afternoon, with a trip to the beach and to
Central Oregon to break up the monotony.
While a bit chaotic, we have done a fair job
of setting appropriate expectations. So
in managing a situation that may seem to
border on a kid zoo, we have learned that
it is best to set appropriate goals and make
sure that you manage your risks.
No one needs a lecture on how to
manage the stress of losing control in their
professional environment, certainly not
from me. But I’m just guessing that, as we
2
all look down the barrel of another three
years of forecasted recession, misery might
appreciate a little company. As many of
you know, our firm has gone through
a transition in the last six months. One
consequence of the change became clear,
and that is that there is very little that can
be done if your partners decide to practice
elsewhere. Short of locking the door from
the outside or tattooing everyone with
“Return to BHB” on their foreheads, there
is little to do if folks decide their future
doesn’t include our firm. Believe me, the
lack of control you feel in these situations
is immense. In fact, that’s likely why some
of my partners have chosen to practice
elsewhere. For some folks, change is chaos, and for most, chaos is intolerable. For
me this transition presents an opportunity
to bond with those who have committed
to dedicating themselves to the firm. So
far as managing expectations it has been
taking one day at a time, getting plenty of
rest, and focusing on identifying the origin
of work satisfaction.
With regard to the work we share in
common, many of you know how difficult
it is to cope with the loss of control we experience in trying cases. The loss of control
peaks once the matter is turned over to
the jury. Having in the past experienced
outcomes that seemingly defied common
sense, the evidence, and client expectations, the anxiety of the “what if” grows
with the duration of the jury deliberations.
For me, one particular stressful jury deliberation occurred following a trial in which
my closing included dropping the f-bomb,
not in anger or disgust, but in quoting the
other driver’s comment about my driver. I
elicited the comment during cross because
I knew plaintiff would receive some sort of
satisfaction in restating it. What I didn’t
The Verdict
■
Summer 2011
anticipate is that he said it with as much
emotion as he did at the time of the accident, so it was startling and abusive. I
didn’t plan to use the quote in my closing,
but for reasons I won’t bore you with now,
I did, in a bit of an off-script start to my
closing.
While I thought the closing seemed
appropriate in light of the circumstances,
my confidence soon dissipated as the
look of horror appeared on faces of colleagues when I shared the “juiciest” part
of my closing. It was then that I began to
visualize the jurors in the box, more than
one of whom was a “grandma.” Grandma
and the f-bomb are just two things that
shouldn’t share the same room. As the jury
continued to deliberate, I wandered out
to the bus stop on SW 5th Avenue and just
sat, watching people come and go. I found
some comfort in watching routine activity
as I felt my career slowly slip down the
gutter. When the verdict finally came in, it
was thankfully lower than our evaluation.
With regard to preparing for this type
of loss of control, I’d offer the following
thoughts: know the difference between
emotion and passion; take stock before
using profanity in your closing; wait to
share your closing with colleagues until
after the verdict is in; and finally, when all
else fails, sit out jury deliberations at a bus
stop—it is amazingly distracting and, in an
unexplainable way, comforting.
If you can find some level of comfort
in chaos and learn to manage expectations
and risks to compensate for the magnitude
of uncertainty, you will do well. In conclusion, get plenty of rest, maintain a good
sense of humor, and remember: there’s
no crying in baseball, at work, or at trial,
and try to keep the crying at home to a
minimum, too.
FEATURES
“Defining the Injury”: Examining the
Production of Medical Records in Oregon
Elijah B. Van Camp
Brisbee & Stockton LLC
T
he scope of medical discovery
in Oregon remains an issue
of serious debate between
plaintiffs’ attorneys and defense counsel. Disagreements often arise from a difference in
interpretation of ORCP 44C, which governs
the discovery of medical records prior to
trial.
In general, almost all relevant documents are discoverable
in pretrial litigation. See
ORCP 36B(1). However,
when it comes to medical
records, the physicianpatient privilege places
limits on discovery. ORS
40.235. ORCP 44C serves
Elijah Van Camp
to define the scope of
discovery given the limits of the privilege.
ORCP 44C provides that, where a
plaintiff has made claims for damages for
injuries, a defendant is entitled to discovery of “all written reports and existing
notations of any examinations relating to
injuries for which recovery is sought ....”
In other words, in cases involving personal
injury claims, the physician-patient privilege is automatically waived for certain
designated documents. The key question
is how broad that waiver is.1
The Multnomah County Civil Motion
Panel has addressed the interpretation of
ORCP 44C in its Statement of Consensus:
Other/Prior Injuries – ORCP 44C
authorizes the discovery of prior
medical records “of any ex-
aminations relating to injuries
for which recovery is sought.”
Generally, records relating to
the “same body part or area”
have been discoverable, when
the court was satisfied that the
records sought actually relate to
the presently claimed injuries.
Mult. Co. Stmt. Cons. 2(E)(2).2
While the Statement of Consensus
clearly states that it is not binding on any
judge, it has been the experience of many
attorneys that it has effectively taken on
the force of law in at least Multnomah
County. The use of the statement as a
guiding principle has become so widespread that it is commonly referred to
among attorneys simply as the “same body
part or area” rule. Plaintiffs’ attorneys
frequently frame their formal responses
to requests for production by citing this
“rule.” Unfortunately, in its application,
the “same body part or area” statement
has narrowed the scope of ORCP 44C, leading to an uneven playing field for plaintiffs
and defendants in some cases.
Why is a narrow reading of ORCP 44C
problematic?
Oregon case law illustrates why a
“same body part or area” understanding of ORCP 44C is unworkable in many
situations.
As just one example, in Doran v. Culver, 88 Or App 452, 745 P2d 817 (1988),
the plaintiff made claims for various back
and pelvic injuries stemming from an au-
tomobile collision. The Court of Appeals
held that evidence of hospital visits for
gynecological surgery and flu and asthma
syndrome should have been admitted at
trial, despite the fact that those visits had
no relation to the motor vehicle accident.
Doran, 88 Or App at 455-56. The plaintiff’s
gynecological records indicated that she
suffered from endometriosis, which could
have contributed to the back and pelvic
pain that the plaintiff attributed to the
accident. Id. The flu and asthma records
from a hospital visit some five months after the accident made no mention of the
accident. Id. The court held that absence
of any mention of the accident made the
records relevant. Id.
While Doran examined the admissibility of medical records rather than
whether the records were discoverable,
the case illustrates why a narrow understanding of ORCP 44C is ill-suited to many
cases. In Doran, if a “same body part or
area” guideline had been followed during discovery, plaintiff’s hospital records
may never have been produced, despite
the fact that they were clearly probative
of her claims.
More recently, a Multnomah County
case demonstrates some specific problems
faced by defendants when the scope
of medical discovery under ORCP 44C is
narrowly construed. In that medical malpractice case, the plaintiff alleged that the
defendant’s negligence in performing and
following up on a cryoablation procedure
(process of using extreme cold to remove
Continued on next page
The Verdict
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Summer 2011
3
FEATURES
Examining the Production of Medical Records
continued from page 3
tissue) resulted in a variety of serious medical complications. Among other allegations, the plaintiff brought a noneconomic
damage claim for $2 million based in part
on claims of permanent injury and loss of
enjoyment of life.
Through discovery, the defendant
learned that the plaintiff had a history
of life-threatening cardiac and deep-vein
thrombosis conditions. The defendant
requested, and the plaintiff refused to
produce, medical records related to those
medical issues. The defendant filed a motion to compel the records, based largely
on the theory that the plaintiff had waived
the physician-patient privilege by asserting
permanent injury and loss of enjoyment
of life claims, and that the records were
discoverable under ORCP 44C.
The court denied the defendant’s
motion, relying largely on the “same body
part or area” statement. It concluded that
the only records “relating to injuries for
which recovery is sought” under ORCP 44C
were records regarding the medical procedure itself and the follow-up treatment.
The problem with such a result is that
it can create an unfair disadvantage for
the defendant at trial. In the example,
plaintiff’s attorney would have undoubtedly argued (to the tune of $2 million)
that the results of the procedure had severely impacted plaintiff’s quality of life,
health, and even lifespan.3 Lacking evidence of plaintiff’s cardiac and deep-vein
thrombosis conditions—conditions that
unquestionably would have affected his
lifespan and quality of life—the jury would
have had no legitimate way to accurately
evaluate plaintiff’s noneconomic claims.
Surely this is not the result contemplated
by ORCP 44C.
What does “relating to injuries”
mean?
The central issue in defining the scope
of medical discovery under ORCP 44C is
determining what the phrase “relating
to injuries for which recovery is sought”
means.
Plaintiffs’ attorneys, and increasingly
Oregon trial courts, seem to interpret “injury” to mean a discrete physical injury.
There is no reason to think that is the case.
Black’s Law Dictionary defines “injury” as
“[t]he violation of another’s legal right,
for which the law provides a remedy; a
wrong or injustice.” Black’s Law Dictionary
488 (9th ed. 2009). Oregon courts adhere
to this definition. See State v. AlvarezAmador, 235 Or App 402, 407, 232 P3d
989 (2010).
In our Multnomah County example,
the plaintiff made a $2 million noneconomic damage claim based on allegations
of permanent injury and loss of enjoyment
of life. These were clearly claims of “injury” that were to be evaluated by the jury.
The Oregon Uniform Civil Jury Instruction
(“UCJI”) for permanent damage guides
jurors in evaluating such claims. To determine damages based on permanent injury,
UCJI No. 74.01 instructs jurors to consider
“all evidence bearing on [plaintiff’s probable life expectancy], such as the plaintiff’s
occupation, sex, health, habits, and activities.” Importantly, this instruction directs
jurors to consider a plaintiff’s “health” in
its entirety, not just information regarding
the specific physical injuries alleged in the
complaint.
While model jury instructions are not
binding, they do largely reflect the consensus view of Oregon lawyers and judges on
specific areas of the law. What this instruction makes clear is that when permanent
damage is alleged, a jury is entitled to see
and hear evidence on all factors that affect
the plaintiff’s life expectancy, including the
plaintiff’s “health”—not just the aspects
of a plaintiff’s health that the plaintiff
decides to present.
When medical discovery under ORCP
44C is narrowly construed, defense attorneys lack the ability to present information
jurors need to perform their duties. Denying defendants discovery that is directly
relevant to such substantial claims fails to
comport with the language of ORCP 44C,
UCJI No. 74.01, and defies principles of
equity in the litigation process.
Waiver by claim assertion
ORCP 44C operates as a limited waiver
of the physician-patient privilege for medical records only. The “same body part or
area” guideline is one interpretation of
the breadth of that waiver. Unfortunately,
as discussed above, such an approach is
too narrow in many cases and is ill-suited
to guide discovery in cases involving complicated or nuanced medical causation
questions. On the other hand, a plaintiff’s
initiation of a lawsuit does not implicate
a blanket waiver of the physician-patient
privilege. OEC 511; State ex rel. Grimm v.
Ashmanskas, 298 Or 206, 212, 690 P2d 1063
(1984). Given that the scope of the medical
records waiver lies somewhere between
these two poles, what interpretation of
ORCP 44C is appropriate? The answer is
rooted in the principle of waiver by claim
assertion.
Simply put, waiver by claim assertion
dictates that the scope of medical discovery is governed by the scope of a plaintiff’s
claims. In general, it is accepted that a
party waives a privilege when he affirmatively pleads a claim that places at issue
the subject matter of the privileged material. Developments in the Law—Privileged
Communications, 98 Harv L Rev 1629, 1637
(1985); Kirkpatrick, Oregon Evidence §
503.13[3] (5th Ed. 2007) (discussing waiver
of attorney-client privilege). To apply
this rule in a particular case, courts follow
a simple rule of thumb: when evidence
bears on a claim or defense, its privilege
is waived unless the holder agrees not to
introduce it at trial. 98 Harv L Rev at 1639;
Bittaker v. Woodford, 331 F3d 715, 720 (9th
Cir 2003) (“[t]he court thus gives the holder
of the privilege a choice: If you want to
4
The Verdict
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Summer 2011
FEATURES
Examining the Production of Medical Records
litigate this claim, then you must waive
your privilege to the extent necessary to
give your opponent a fair opportunity to
defend against it”).
Oregon case law supports this broader
theory of waiver. See, e.g., Baker v. English, 134 Or App 43, 47, 894 P2d 505 (1995)
(reversed on other grounds, 324 Or 585,
932 P2d 57 (1997)) (plaintiff’s psychological records should have been ordered to
be produced because plaintiff put them
at issue by claiming emotional distress
damages).
Following this principle, the scope of
discovery is governed entirely by the plaintiff. If a plaintiff makes narrow claims,
discovery is narrow. However, if a plaintiff
decides to make expansive claims implicating his entire health and well-being,
discovery is similarly broad. For example, if
a plaintiff makes permanent injury claims,
waiver by claim assertion would dictate
that the defendant would be entitled to
obtain all medical records implicating the
plaintiff’s “health” and lifespan. UCJI
74.01. However, if the plaintiff chooses
not to make that claim, the defendant is
not entitled to such broad discovery. Thus,
the plaintiff has not waived the physicianpatient privilege simply by filing a lawsuit.
Rather, the privilege is waived as to medical records only to the extent necessary to
give the defendant a fair opportunity to
defend against plaintiff’s specific claims.
Until there is some official clarification
of the scope of the medical records waiver
under ORCP 44C, there will continue to be
contentious discovery disputes between
plaintiffs and defendants. In the meantime, waiver by claim assertion provides
a common-sense approach to medical
discovery and waiver of the physicianpatient privilege for medical records. Following that principle, plaintiffs are in the
discovery driver’s seat: When their claims
are limited, discovery is limited; however,
when their claims broaden, discovery expands accordingly. This is an approach that
follows Oregon law, is equally applicable
to every case, and is fair and equitable to
all litigants.
Endnotes
1 The breadth of the ORCP
44C waiver has not been addressed in great depth by the
Oregon Court of Appeals or
Oregon Supreme Court. This
is likely due to the fact that
the denial of a discovery motion is very difficult to link to
prejudicial error.
2 The Civil Motion Panel is “a
voluntary group of judges
who agree to take on the
work of hearing and deciding pretrial motions in civil
actions that are not assigned
specially to a judge.” Mult.
Co. Stmt. Cons. Pmbl. The
panel announces consensus
statements on particular issues “[w]hen it appears all
of the panel members have
ruled similarly over time . . . .”
Id. These statements “do not
have the force of law or court
rule; the statements are not
binding on any judge.” Id.
3 This case settled before trial.
Representing clients in
Oregon and Washington
503.227.1515 360.823.0410
GevurtzMenashe.com
The Verdict
■
Summer 2011
The firm you want on your side
5
FEATURES
Abraham v. T. Henry Construction, Inc., and
the “Streisand Effect”
Jonathan Henderson
Davis Rothwell Earle & Xóchihua PC
O
n March 10, 2011, the Supreme Court released its
opinion in Abraham v. T.
Henry Construction, Inc., 350
Or 29 (2011). The Court confirmed that Oregon permits
tort recovery by a homeowner against
the builder of a home, even when the
two are in privity of
contract, and even in
the absence of a special
relationship. In some
ways, the holding is simply an extension of the
Court’s holding in Harris
v. Suniga, 344 Or 301
Jonathan Henderson
(2008), where the Court
held that a subsequent purchaser of a
home may maintain a negligence claim
against the builder without running afoul
of Oregon’s Economic Loss Doctrine. The
Abraham Court stated: “This case requires
us to address an issue left open in Harris v.
Suniga, 344 Or 301, 313, 180 P3d 12 (2008):
Whether a claim for property damage
arising from construction defects may lie
in tort, in addition to contract, when the
home-owner and builder are in a contractual relationship.” 350 Or at 33. The Court
concluded that the common law imposes
liability on one who negligently causes a
foreseeable injury to another, and so the
existence of a contract or the absence of a
special relationship are of no moment and
do not prevent a homeowner from bringing a negligence claim against the builder.
The common law imposes liability on the
builder unless such liability is “altered
or eliminated by contract or some other
source of law.” 350 Or at 37.
By itself, this holding is not all that
remarkable in light of the Court’s recent
rulings in cases such as Harris. The more
interesting aspect of the Abraham opinion
is found in footnote 3, as well as plaintiffs’
subsequent attempts to convince the
Court to modify the footnote by removing
the second sentence. Footnote 3 states:
The statute of limitations for
contract actions is six years.
ORS 12.080(1). Tort claims arising out of the construction of a
house must be brought within
two years of the date that the
cause of action accrues, but in
any event, within 10 years of
the house being substantially
complete. ORS 12.110; ORS
12.135. Tort claims ordinarily accrue when the plaintiff discovers
or should have discovered the
injury. Berry v. Branner, 245 Or
307, 311-12, 421 P2d 996 (1966).
The footnote is dictum; that is, it was
neither necessary nor essential to the
decision of the Court. As such, it is not
binding on the lower courts. However,
even as dictum, it is persuasive. See State
v. Thompson, 166 Or App 370, 375 (2000)
(“[W]e generally will follow dicta that are
helpful[.]”) It also likely indicates how
the Court would rule if the issue were
before it.
After the Abraham opinion was released, plaintiffs petitioned the Supreme
Court for reconsideration and requested
the Court remove the second sentence
of footnote 3. Plaintiffs’ petition was
supported by amicus briefs requesting
the same thing: removal of the second
sentence of footnote 3. On May 5, 2011,
the Supreme Court denied the petition for
reconsideration. (Available at 2011 Ore.
LEXIS 433 May 5, 2011).
The “Streisand Effect” is the name
given to the phenomenon in which one’s
attempt to hide or cover information leads
to the unintended consequence of drawing unwanted attention to the same information. The phrase originated from an
incident in 2003. Singer Barbra Streisand
learned photographs of her California
beach house were posted online. She filed
suit against the individual who posted the
pictures, as well as the site hosting the
pictures, seeking $50 million. However,
her lawsuit led to an unintended result:
within one month, a half million people
had visited the site hosting the pictures
and had copied the images. Soon, the
pictures appeared everywhere.
Back to the story. By unsuccessfully attempting to remove the second sentence
of footnote 3 in the Abraham opinion,
plaintiffs and amici have drawn attention to the footnote, and have arguably
strengthened its persuasiveness. The
frenzy by those seeking to convince the
Court to remove the second sentence drew
attention, and with the entire defense bar
watching, the Court refused the request
to remove a single dictum sentence in a
footnote.
Ordinarily, dicta are attacked on
the ground that the issue addressed was
not adequately briefed or argued to the
court by the parties because the issue
was not necessary or essential to the
court’s decision. Here, those attacking the
Abraham footnote as mere dictum are at
a disadvantage because the petition for
reconsideration brought the issue back
6
The Verdict
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Summer 2011
FEATURES
The “Streisand Effect”
squarely in front of the Court, and yet,
the petition was still denied. This serves
only to strengthen the persuasiveness of
the dictum.
Notwithstanding the denied petition for reconsideration, the footnote in
Abraham is still dictum, and as such, not
binding on the lower courts. However,
it is arguably more persuasive than ordinary dicta because the Court’s refusal to
remove it demonstrates that the Court,
upon reflection a second time, meant
what it said.
The fact that plaintiffs and amici
petitioned immediately for reconsideration, seeking the removal of the second
sentence of the footnote, highlights the
gravity of the Court’s announcement for
the plaintiffs’ bar. Over the last several
years, plaintiffs have been largely successful in persuading trial courts that a claim
for negligent construction is subject to a
six-year statute of limitations, located at
ORS 12.080(3), and that the discovery rule
applied to toll the statutory period until
plaintiffs discover the harm.
Enter footnote 3 from the Abraham
opinion. This announcement has likely
caught many plaintiffs unawares. It is not
uncommon for a homeowner to take more
than two years dealing with issues such as
water intrusion before seeking the advice
of counsel. In Oregon, “it is immaterial
that the extent of damages could not be
determined at the time of the tort for purposes of determining when the statute of
limitations commence[s] to run.” Jaquith
v. Ferris, 297 Or 783, 788 (1984). A plaintiff
need know only that she was harmed by
defendant’s tortious conduct before the
statutory period commences to run; she
need not know the extent of the harm.
When this general rule is combined with a
two-year statute of limitations, the result
is that many claims will be defeated with
valid limitations defenses.
Defendants have capitalized on
footnote 3 already; at least one large
negligent construction lawsuit has been
dismissed by an Oregon state trial court on
the grounds that the claim was untimely
because it was not brought within two
years after plaintiffs discovered the harm.
There, the trial court relied heavily on
footnote 3 of the Abraham opinion, and
was especially persuaded by the Supreme
Court’s denial of the motion for reconsideration. There are likely a significant
number of cases on file or waiting in the
wings that could also be subject to valid
limitations defenses based on footnote 3.
Defense counsel should be mindful
of the potential coverage implications associated with moving against a negligence
The Verdict
■
Summer 2011
claim. If there are other claims alleged in
the complaint, the negligence claim may
be the claim that is providing coverage for
the insured’s defense.
Defendants should make use of the
Abraham case to strike while the iron is
hot. If there is good evidence that plaintiff
discovered the alleged harm more than
two years before filing suit, the claim
may be subject to dismissal. The statute
of limitations should be asserted as an affirmative defense unless it clearly does not
apply. If an answer has already been filed,
ORCP 21 G(2) may permit a defendant to
seek leave of court to assert a limitations
defense if the defense was not asserted in
the first responsive pleading.
7
FEATURES
Electronic Medical Records – Pitfalls &
Practicalities
Clark R. Horner
Hoffman Hart & Wagner LLP
T
he days of a paper medi-
patient’s care (hospital records, radiol-
tion is pulled from the database and
cal chart stored on your
ogy, pharmacy, or billing records) may
viewed on screen. But, when a records
doctor’s office shelf are
be maintained separately from the main
request is made, the patient’s entire
numbered.
If you have
chart or in a different location alto-
EMR is printed, frequently resulting in
visited a doctor or hospital
gether. Generally, when requested, the
a printout containing hundreds, or even
recently, you may have discovered that
chart can be removed from the shelf and
thousands, of pages. Moreover, each
paper charts are quickly being replaced
photocopied. Occasionally, the original
EMR system produces paper copies in a
by electronic medical
chart may be produced at deposition
different form.4
records (EMRs or EHRs).
or trial.
Clark R. Horner
Because of these inherent differ-
This conversion will
In contrast, under an EMR system
ences in format, it is essential, when
likely accelerate follow-
there is no longer a single chart on the
reviewing medical records from an EMR
ing federally funded
shelf; information is no longer physi-
system, to become familiar with the
Medicare and Medic-
cally stored page by page, patient by
layout and organization of the records,
aid incentives offering
patient. Instead, each “bit” (i.e. piece) of
ensuring that you understand when and
billions to healthcare
electronic information is separately man-
how such information is being provided.
groups that implement
aged within a server or other computer
Whatever EMR system is utilized, key
EMRs. EMRs are thought to lead to cost
system. When viewed by a healthcare
records are often scattered throughout
savings, improved quality of care, pro-
professional, requested pieces of medical
the lengthy printout: for example, in
motion of evidence-based medicine, and
information are displayed on a computer
hospital records, vital signs or patient as-
improved mobility of records. As with
screen, in a format chosen by the user.
sessments may be contained in multiple
any new technology, however, there are
Further, access can be limited to certain
areas and spread over multiple pages.
potential pitfalls along with the benefits.
sections or areas of the EMR, depending
The format of a printed EMR is not intui-
Many of the pitfalls posed by new
on the user. And, of course, in some
tive. It is, nonetheless, critical to take the
medical records technologies stem from
systems, records can be accessed over
time and effort to understand all of the
the differences between paper and
the internet, from essentially anywhere.
sections in any EMR you receive, and to
electronic medical records. Perhaps the
In other words, there is no single
identify all of the pertinent records or
most significant is the underlying format
individual electronic file. Instead, in-
or structure. Consider the classic paper
dividual pieces of a patient’s medical
Similarly, EMR printouts may contain
1
2
comments.
These are often contained in a
record are stored as bits of data across
multiple references to the same event.
single file in a single office, with each
a database. Thus, when a healthcare
For instance, medical order may appear
patient file physically separate from
provider views a patient’s EMR, each
in a nursing end-of-shift summary, a
others, although a few aspects of the
requested piece of medical informa-
separate medication administration log,
chart.
3
8
The Verdict
■
Summer 2011
FEATURES
Electronic Medical Records
and in individual notes from healthcare
be able to move quickly and happily
2 Centers for Medicare & Medicaid
providers who ordered the medication
from one area of the printed electronic
Services, Fact Sheet: Electronic
or referenced the order. This does not
records to the next. More likely, the
Health Records At-a-Glance (July 13,
mean that the medication was given
printed copy will not correlate to the
2010).
three (or more) separate times; instead,
format and layout the provider is accus-
the information was recorded in three
tomed to seeing. Be prepared to walk
(or more) separate areas. To the reader
through the relevant items with the
who is not familiar with the layout and
medical provider in order to obtain the
format of these records, however, these
deposition testimony you need.
entries can incorrectly suggest multiple
defined in various state and federal
laws, including the Health Insurance
with the physician-patient privilege,
may not come to light until trial.
these statutes provide substantial
Along with format and layout dif-
privacy protections. In response,
ferences, another critical difference
ORCP 55 was amended to clarify
between paper and electronic charts
how such individually-identifiable
is timing. Although electronic records
health information may be ob-
often have precise timestamps attached
tained, and includes specific notice
to them, the timestamp does not neces-
requirements.
sarily signify the time a particular event
4 One criticism, beyond the scope of
took place: instead, it only reliably re-
this article, is the lack of standards
flects the time an event was recorded
for interoperability between EMR
into the EMR. Providers are limited to
systems. In general, EMR systems,
recording information when they are
even by the same vendor, are cus-
able to access a computer terminal, and
tomized to the individual purchaser.
they generally have little or no ability
Consequently, familiarity with one
to alter these timestamps.5 Therefore,
EMR system does not guarantee
in the litigation context, it is important
familiarity with any other EMR
to confirm with individual providers the
actual timing and sequence of events
EMRs are here to stay and are in-
shown in the electronic record. Fur-
creasingly replacing paper charts. Time
ther, in a few instances, even comput-
and effort spent by both counsel and
ers (shockingly) can be wrong. Rarely,
medical professionals to understand
updates to software can alter dates,
these records and the information they
although usually in an identifiable and
contain—early on in the litigation pro-
explainable manner.
cess—will help avoid expensive surprises
should keep in mind that most medical
tifiable health information.” This is
(HIPAA) (45 CFR §§ 160, 164). Along
instances, the mistaken understanding
with printed electronic records, you
erwise, contains “individually-iden-
Portability and Accountability Act
dosages of a medication. Worse, in some
Finally, once you become familiar
3 A medical chart, electronic or oth-
later in the case.
system. Likewise, records are often
not electronically transferrable from
institution to institution. See EHR
Can Make the Paper Problem Worse,
thehealthcareblog.com, accessed
July 7, 2011; see also U.S. Department of Health & Human Services’
Health Information Exchange Challenge Grant Program.
Endnotes
5 Of course, as with other electronic
providers are not. They may be com-
1 See Electronic Health Record Incen-
records, there can be additional
fortable using the electronic version of
tive Program; Final Rule, 42 CFR
underlying data, such as audit trails,
records but not a lengthy EMR printout.
Parts 412, 413, 422 and 495, et al.,
which in some instances may be
Do not assume that your witness will
75 Fed Reg 44314, July 28, 2010.
informative.
The Verdict
■
Summer 2011
9
FEATURES
Premises Liability: When Life Throws You
Lemonade, Who Is Liable?
Matthew G. Ukishima
E
veryone is familiar with the
adage, “When life gives you
lemons, make lemonade.”
But what happens when life
throws lemonade at you?
Well, as highlighted in a
recent Oregon Court of Appeals case,
when life threw lemonade at Jacqueline Hammer (in the
form of cartons catapulted from a grocery
store shelf), she filed a
complaint against Fred
Meyer Stores, Inc., alleging that it owed her
for damages. Hammer
Matthew Ukishima
v. Fred Meyer Stores,
Inc., 242 Or App 185 (2011). This article
will briefly outline the issues addressed in
Hammer, discuss how those issues differ
from prior Oregon cases involving premises liability, and recommend strategies
for defense counsel encountering the
doctrine of res ipsa loquitur—an integral
element in the Hammer decision—in
premises liability cases.
In Hammer, the plaintiff was shopping at a Fred Meyer store when she removed a half-gallon carton of lemonade
from an “end cap” refrigerated display
located at the end of an aisle. The shelves
in the display were four or five feet wide
and were supposed to be fastened down
inside the display. But when Hammer removed a carton of lemonade from a shelf
in the display unit, the shelf flipped backwards and ejected the remaining lemonade cartons toward Hammer. Although
Hammer attempted to dodge the falling
cartons, several of the cartons struck her.
Consequently, she suffered injuries to her
neck and shoulders, incurring significant
medical costs. Hammer sued Fred Meyer,
alleging that the shelving display was defective and that Fred Meyer was negligent
for failing to exercise reasonable care to
protect her from, or warn her against,
the danger posed by the defective shelf.
At trial, Fred Meyer’s store manager
testified the store owned the display unit
that held the lemonade. The store manager also testified that Fred Meyer did
not have a specific employee assigned to
inspect whether the shelving unit was correctly installed, but that employees were
required to report to store management
any problems with unstable or improperly
installed shelving displays. Hammer presented expert testimony that the shelving
unit would not have collapsed when the
product was removed unless it had been
negligently installed. At the end of trial,
the judge issued jury instructions, which
included an instruction advising jurors
about the doctrine of res ipsa loquitur—
“the thing speaks for itself”—slightly
modified from the Uniform Civil Jury
Instruction 24.01. Ultimately, the jury
found Fred Meyer was negligent and
awarded Hammer $362,000 in economic
and non-economic damages. Fred Meyer
appealed.
On appeal, Fred Meyer argued that:
(1) Hammer failed to produce any evidence that Fred Meyer knew, or should
have known, that the display unit was not
properly installed; and (2) the trial court
erred by giving the jury the modified res
ipsa loquitur jury instruction and permitting the jury to rely upon inferences to
establish Fred Meyer was negligent. The
Court of Appeals disagreed and distinguished the facts in Hammer from two
Oregon premises liability cases, Lee v.
Meirer & Frank Co., 166 Or 600, 114 P2d
136 (1941), and Fuhrer v. Gearhart By the
Sea, Inc. 306 Or 434, 760 P2d 874 (1988).
The Court explained that in the present
case, the unsecured shelf was not analogous to produce or liquid spilled on the
floor, “where the store-owner’s control
of the instrumentality is so nonexclusive
that liability-producing inference is not
possible.” In other words, it was the absence of any foreign substance, wayward
produce, or liquid that brought Hammer
into the purview of res ipsa loquitur and
distinguished it from other premises liability cases. Thus, the Court held a jury
could infer that the shelf flipped due
to negligence that was more probably
than not attributable to Fred Meyer. The
Court did not address the second point
on appeal—whether the modified jury
instruction was improper—because it had
10
The Verdict
■
Summer 2011
FEATURES
Premises Liability
resolved this argument by agreeing with
the plaintiff that Fred Meyer had failed to
preserve its objections to the challenged
instruction.
This case highlights several points
that we, as defense attorneys, should
be mindful of when evaluating premises
liability cases. In normal practice, it is
uncommon to see allegations triggering
the doctrine of res ipsa loquitur. However,
with the recent decision in Hammer, we
should expect to see an increase in the
number of claims concerning the doctrine
of res ipsa loquitur as plaintiffs attempt
to turn the tables against defendants.
Unless those cases are appropriately
defended, plaintiffs will be permitted to
take advantage of favorable jury instructions and arguments that would allow
juries to draw inferences of negligence
against defendants.
In practice, the Hammer decision
requires defense attorneys to pay extra
attention to the pleadings in a given case.
Keep in mind, res ipsa loquitur “is a rule of
evidence,” and it “should not be pleaded
in a claim.” McKee Elec. Co., Inc. v. Carson Oil Co., 301 Or 339, 348, 723 P2d 288
(1986). Thus, if the complaint sets out a
separate claim for relief based on res ipsa
loquitur, one should seriously consider
moving to dismiss the claim as improper.
In addition, practitioners should
be on the lookout for ultimate facts asserted in the complaint suggesting res
ipsa loquitur such that the facts plead
tend to “show that [the] injury occurred
in circumstances that more probably
than not would not have occurred in the
absence of negligence on the part of the
defendant.” Id. If such facts are alleged
in a complaint, defense attorneys should
be proactive in identifying, developing,
and proffering viable alternative scenarios undercutting the inferences that
the defendant possessor/landowner had
exclusive control over the instrumentality
causing the incident. Such efforts would
combat inferences a jury could make
while simultaneously lessening the chance
that a trial court would permit a res ipsa
loquitur jury instruction. See Fieux v.
Cardivascular & Thoracic Clinic, P.C., 159
Or App 637, 640, 978 P2d 288 (1999) (It is
a matter of law whether a jury will be permitted to make the inference of liability
under the doctrine of res ipsa loquitur).
Defense counsel should also bear in
mind that even if the res ipsa loquitur
doctrine is invoked in a case, it does not
automatically shift the burden of proof.
Guthrie v. Muller, 213 Or 436, 445, 325
P2d 883 (1958) (the “general burden of
proof does not shift...[the] burden to the
defendant, except in the sense that unless [the defendant] produces evidence,
he runs that risk that the jury may find
against [the defendant]”). Needless to
say, defense attorneys must still develop
solid trial strategies and themes and be
prepared to rebut potential inferences
that plaintiffs’ attorneys will argue to
the fact-finder.
In sum, when reviewing the pleadings in a case and during the course of
discovery, if it becomes apparent that
the doctrine of res ipsa loquitur may
apply, defense counsel should develop
sound strategies to rid the case of the
potential inferences of negligence that
may be presented to the jury and/or be
prepared to present a case where control
over the instrumentality is so nonexclusive
that a liability-producing inference is not
possible.
Nothing bites like going to court
without a good argument. It’s risky,
potentially painful—and when you know the lawyers to
call, entirely avoidable.
MARKOWITZ HERBOLD
GLADE & MEHLHAF
T R I A L
PORTLAND
The Verdict
■
I
503.295.3085
Summer 2011
I
PC
L A W Y E R S
WWW
.MHGM.COM
11
FEATURES
Can a Plaintiff Abandon an Undiscovered Tort
Claim in Bankruptcy?
Adam S. Gamboa
Harrang Long Gary Rudnick PC
T
he short answer is yes.
plaintiff lacks standing)? While there is
(emphasis added). If an asset is scheduled
Many defense attorneys
no Oregon appellate case law directly
and the trustee does not dispose of it
are aware that a plaintiff’s
on point, the weight of authority from
when the case is closed, then the asset is
failure to disclose a known
other jurisdictions supports the defense.
deemed “abandoned to the debtor.” 11
potential cause of action in
a bankruptcy petition may expose plain-
Interest in Tort Claims Is Considered
tiff to a dispositive affirmative defense
“Property” of the Bankruptcy Estate
(judicial estoppel and/
With some limited exceptions, a
or real party in inter-
bankruptcy estate consists of “all legal
est).1 What is not com-
or equitable interests of the debtor in
mon knowledge is that
property as of the commencement of
dispositive affirmative
the case.” 11 USC § 541(a)(1). The leg-
defenses can also be
islative history of the Bankruptcy Code
raised even if plaintiff
states that “the scope of this paragraph
did not know of the
is intended to be very broad.” In re
potential cause of action at the time he
Ellwanger, 140 BR 891, 897 (Bankr WD
filed his bankruptcy petition, and even if
Wa 1992). Therefore, when a plaintiff
he did not discover the claim until years
files a Chapter 7 bankruptcy petition, his
after the bankruptcy concluded.
bankruptcy estate includes all legal or
Adam Gamboa
Consider this hypothetical: (1) in
equitable interests in his property. This
2002 a plaintiff purchases a new fur-
“property” includes rights of action for
nace, which is negligently installed and
personal injury. Id.
USC § 554(c); Vucak, 194 Or App at 566.
If, on the other hand, an unscheduled asset is not disposed of, it then becomes the
property of the bankruptcy estate. 11
USC § 554(d); Vucak, 194 Or App at 566.
In Vucak, plaintiff knew about her
potential claim for injury, and the bankruptcy trustee had actual knowledge of
the claim, but plaintiff did not list the
claim as property of her estate on her
schedule of assets. The Oregon Court of
Appeals concurred with the “overwhelming majority of federal courts” that “even
when the trustee has actual knowledge
of a claim and does not administer it,
the claim is nonetheless not abandoned
to the debtor unless it is formally ‘scheduled’ pursuant to 11 USC § 521(1).”
exposes plaintiff to long-term carbon
monoxide poisoning, leading to nu-
Tort Claims Not Properly Scheduled
Therefore, Ms. Vucak’s claim was not
merous unexplained health problems;
Are Abandoned by the Debtor to the
abandoned to her when her bankruptcy
(2) in 2006 the plaintiff files Chapter
Bankruptcy Estate
estate closed, but rather remained the
property of her bankruptcy estate.
7 bankruptcy and has all of his debts
When a debtor files a petition for
discharged; and (3) in 2008 the plaintiff
bankruptcy, he must file a schedule of
In our furnace hypothetical, the
discovers the carbon monoxide levels
assets, including the debtor’s present
situation is slightly different. The plain-
and files suit against the company that
and potential causes of action in tort
tiff has a good reason for failing to list
installed his furnace. The question is,
against a third party. 11 USC § 521(1); In
the claim on the schedule of assets, he
can the company successfully defend
re Coastal Plains, Inc., 179 F3d 197, 208
does not yet know about it. Neverthe-
the suit by asserting that the plaintiff
(5th Cir 1999); Vucak v. City of Portland,
less, the operative requirements of
is not the real party in interest (and/or
194 Or App 564, 566, 96P3d 362 (2004)
the Bankruptcy Code—the claim is not
12
The Verdict
■
Summer 2011
FEATURES
An Undiscovered Tort Claim
abandoned to the debtor unless it is
Judge Brandt examined several
company has a strong argument that
formally “scheduled” pursuant to 11
analogous appellate cases, including
plaintiff is not the real party in interest.
USC § 521(1)—remain the same. In our
two cases from the Ninth Circuit Court
Even applying the contrary authority
hypothetical, plaintiff’s claim was not
of Appeals, In re Neuton, 922 F2d 1379
(9th Cir 1990) and In re Ryerson, 739
where “accrual” of the claim was the
properly scheduled and disposed of, and
therefore it remains the property of the
F2d 1423 (9th Cir 1984). Judge Brandt
bankruptcy estate.
agreed with the reasoning in Neuton
The Majority View Is That When a
Claim Is Discovered or Accrues Is Not
Determinative of Whether a Claim Is
Property of the Bankruptcy Estate
Plaintiffs invariably argue that the
and Ryerson and held that a contingent
claim for negligence where the negli-
determinative factor, defense counsel
could (and should) argue that plaintiff’s
claim against the furnace installer is the
property of plaintiff’s bankruptcy estate
gent acts occurred pre-petition was part
because it had not been properly sched-
of the bankruptcy estate, even though
uled or administered. Thus, the claim
the claim did not accrue until after the
was not abandoned by plaintiff when
petition was filed. Ellwanger, 140 BR
the bankruptcy estate closed.
holding in Vucak does not apply where
at 898. In so holding, the Ellwanger
a plaintiff was unaware of a potential
The proper course for plaintiff in
court noted that the problem with the
cause of action at the time he or she filed
the hypothetical would be to petition
accrual and discovery arguments made
the bankruptcy petition. While there is
by plaintiffs is that those arguments are
the Bankruptcy Court to re-open his
no Oregon case law directly on point, the
legal concepts relevant to statutes of
question of whether a cause of action is
limitations law under state law. Id. at
the “property” of a bankruptcy estate
897. These state law concepts do not de-
is a matter of federal bankruptcy law,
termine what qualifies as “property” for
plaintiff in the case, or abandon the claim
which generally holds that a plaintiff’s
the purposes of a bankruptcy estate. Id.
to the plaintiff. However, a plaintiff can
interest in an unknown claim is still the
“While state law defines the nature of
be hesitant to take this course for fear a
property of his bankruptcy estate—even
a debtor’s interest in property, whether
claim will be lost or substantially reduced
if the claim has not “accrued” at the time
this interest is property of the estate is
if the bankruptcy estate were to become
the bankruptcy petition is filed, and even
a matter of federal bankruptcy law.” Id.
though plaintiff has not “discovered”
the proper party in interest.
Although Ellwanger has been cited
the claim.
for this proposition since 1992, contrary
bankruptcy estate and obtain a determination from the trustee whether or
not the trustee wanted to substitute as
If plaintiff refuses to have the bankruptcy estate re-opened, a motion for
In re Ellwanger, supra, 140 BR 891, is
authority exists. The minority position is
a case from the Bankruptcy Court of the
that plaintiff does not have an interest
Western District of Washington. There,
in “property” for § 541 purposes until
the debtors made a claim of attorney
plaintiff is actually damaged, or the
malpractice against their bankruptcy
cause of action “accrues.”2 The cases
appellate case law directly on point, the
attorneys for negligent acts that alleg-
that distinguish Ellwanger (primarily
weight of authority from other jurisdic-
edly occurred both pre-petition and
attorney malpractice cases) all deal with
tions supports the defense.
post-petition. The defendants filed a
scenarios where the negligent conduct
motion for summary judgment, claiming
took place pre-petition but plaintiff’s
Endnotes
that the plaintiffs were not the real party
injury occurred post-petition. There is
1 Wendy Vierra, Inadequate Bank-
in interest to the malpractice claims be-
no known case in which a court has held
ruptcy Disclosure Limits Subsequent
cause the claims were the property of
that a cause of action which accrued
Claims, OADC, Summer 2005, at 12.
the bankruptcy estate. Plaintiffs argued
pre-petition but was not discovered until
that their causes of action did not exist
post-petition is property of the debtor
at the time they filed their bankruptcy
and not the bankruptcy estate.
(Bankr WD Tex 1996); Holstein v.
petition, because the negligence did
Conclusion
Knopfler, 321 BR 229, 235 (Bankr ND
not accrue until the malpractice became
Applying Ellwanger to our hypo-
irremediable (post-petition). Id. at 898.
thetical, defense counsel for the furnace
The Verdict
■
Summer 2011
summary judgment should be considered to have the issue determined by
the court. Although there is no Oregon
2 Swift v. Seidler, 198 BR 927, 935
Illinois 2005); In re De Hertogh, 412
BR 24, 41 (Bankr Conn 2009).
13
OADC 2011
▼
Captain Robert McGovern, keynote
speaker; Dan Schanz, Board member
and convention co-chair; Greg Lusby,
President-Elect
Janet Hoffman, prominent criminal
defense attorney
Judge Judith Matarazzo
DRI President Matt Cairns
Sukh Singh, Associate Director,
Willamette University Center for Dispute
Resolution
Annalie Faddis and kids at the Fun Run
Crossing the finish line at the Fun Run
CalendarWinners
Golf Tournament
1st Place Law Net
Jennifer Durham
Andrew Glascock
Jim Oliver
Wendy Paris
Longest Drive
Long Drive Hole #2 - Scott O’Donnell
Long Drive Hole #6 - Chrys Martin
Long Drive Hole #10 - Wendy Paris
Long Drive Hole #17 - Daniel Cotton
1st Place Low Gross
Peter Eidenberg
Devan Forsyth
Scott O’Donnell
Jeff Smith
Closest to the Pin
KP Hole #8 - Alan Beck
KP Hole #13 - Chrys Martin
KP Hole #16 - Peter Eidenberg
Blair and Joey Loftis at the Fun Run
14
The Verdict
■
Summer 2011
Convention Highlights
▼
Hamlin family preparing for the Fun Run
Gordy and Dina Welborn
Brian Talcott’s memorable performance of La Bamba
John Bachofner with backup singers Anne Foster
and Sheila Cieslik
Former OADC President Drake Hood with
Don Bowerman
Robert Sabido Trio
FunCalendar
Run Winners
2.5 Mile Winners - Men’s
Dan Borbon - 16:19
Brian Scott - 19:24
Randy Faddis - 23:00
5 Mile Winners
Blair Loftis (with Joey Loftis riding
side car) - 40:23
Julia Seal - 44:23
2.5 Mile Winners - Women’s
Gabrielle Hamlin - 24:18
Hon. Katherine Weber - 25:00
Tara Manske - 25:50
Photos courtesy of Steve Rickles of the Rickles
Law Firm PC.
The Verdict
■
Summer 2011
15
RECENT CASE NOTES
Recent Case Notes
R. Daniel Lindahl, Lindahl Law Firm PC
Case Notes Editor
ARBITRATION
Federal Arbitration Act preempts state laws protecting
class actions from waiver in
arbitration clauses
In AT&T Mobility LLC v. Concepcion,
131 S Ct 1740 (2011), the Supreme Court
of the United States held that state laws
protecting class-action litigation from
waiver in arbitration agreements are
preempted by the Federal Arbitration
Act (FAA).
The plaintiffs purchased AT&T services in response to an advertisement for
free phones. Although they were given
free phones, they were also charged
$30.22 for sales tax. The Concepcions
filed a complaint against AT&T alleging
false advertising and fraud, and their
complaint was consolidated with a putative class action.
AT&T moved to compel arbitration
under the terms of a service contract
that disallowed class actions. The plaintiffs contended that the arbitration
agreement was unconscionable under
California law. The trial court and the
Ninth Circuit both held that the provision
the Ninth Circuit, holding that California’s rule was preempted by Section 2
of the FAA. The Court noted that the
FAA contained a savings clause that
permits arbitration agreements to be
declared unenforceable “upon such
grounds as exist at law or in equity for
the revocation of any contract.” The
Court held, however, that nothing in
the savings clause “suggests an intent
to preserve state-law rules that stand as
an obstacle to the accomplishment of
the FAA’s objectives.” The Court found
that even though California was using
a doctrine—unconscionability—widely
applicable to all contracts, it was doing
so in a way that disfavored arbitration.
This is because the doctrine, as applied
to class action waivers in arbitration
provisions: (1) sacrificed the informality
of arbitration, (2) required extensive
procedural formality, and (3) increased
risks to defendants. For these reasons,
the Court held that the FAA preempted
the California rule. This case appears to
void similar Oregon case law holding that
class action waivers in arbitration agreements are unenforceable. J
— Submitted by Shemia Fagan
of Ater Wynne LLP
was unenforceable. The Ninth Circuit
held that California’s rule was not preempted by the FAA because it was simply
“a refinement of the unconscionability
analysis applicable to contracts generally
in California.”
The Supreme Court overturned
DISCOVERY
Trial court did not abuse its
discretion by striking defendant’s affirmative defenses as
a sanction for willfully refusing to cooperate with plaintiff ’s efforts to depose him
In Burdette v. Miller, Oregon Court
of Appeals No. 141666 (June 15, 2011),
the Oregon Court of Appeals held that it
was within the trial court’s discretion to
strike defendant’s affirmative defenses
as a sanction for his repeated failure to
appear for his deposition.
Defendant was personally served
with plaintiff’s complaint on June 11,
2007. Defendant’s answer alleged a
comparative fault affirmative defense.
In October 2007, plaintiff noticed
defendant’s deposition for November
12, 2007. Defense counsel was unsuccessful in locating defendant and hired
a private investigator, who was also unsuccessful. Plaintiff agreed to reschedule
defendant’s deposition and sent a second
notice for December 17, 2007. Defense
counsel was again unable to locate or
confirm defendant’s appearance. Plaintiff then informed defense counsel that
he would seek sanctions, including striking defendant’s defenses, if defendant
was not available for deposition within
30 days.
Defense counsel attempted to serve
defendant with deposition notices twice
in January, but was unsuccessful. When
defense counsel finally spoke with deContinued on next page
16
The Verdict
■
Summer 2011
RECENT CASE NOTES
Recent Case Notes
fendant, he was told that defendant had
been in Alaska for the past few months
and would be available for deposition on
January 26, 2008. But defendant failed
to appear because his truck broke down.
Plaintiff’s motion for sanctions requested that the Court strike defendant’s
comparative fault affirmative defense.
Plaintiff submitted evidence showing that
defendant was in Oregon when he said
he had been in Alaska. Plaintiff argued
that defendant’s conduct in failing to
appear for deposition was “willful” and
that the requested sanctions were “just.”
Defendant argued that he did not have
actual knowledge of the November and
December depositions and that he could
not attend on January 26 due to “circumstances beyond his control.” Defendant
also argued that if the Court found defendant’s conduct willful that it should
impose lesser sanctions, such as costs and
fees or ordering defendant to appear for
deposition. Defendant’s sister testified
that defendant was aware of the dates
he was supposed to appear but “did his
own thing.” The Court granted plaintiff’s
motion and entered an order striking
defendant’s affirmative defenses and
finding defendant liable for plaintiff’s
injuries as a matter of law.
On appeal defendant argued that
the trial court had erred by failing to
make special findings that defendant’s
failure to attend his deposition was willful or in bad faith. The Court of Appeals
rejected this argument because defendant failed to preserve it. The Court also
held that the sanction was warranted
because there was ample evidence from
which the trial court could find that defendant had willfully refused to cooperate with plaintiff’s efforts to arrange a
deposition. J
— Submitted by Jennifer A. Durham of Hiefield Foster & Glascock LLP
EMPLOYMENT
Supreme Court affirms employer liability under “cat’s
paw” theory in USERRA
context
In Staub v. Proctor Hospital, 131 S
Ct 1186 (2011), the Supreme Court of
the United States affirmed employer liability under the “cat’s paw” theory by
holding that if a supervisor performs an
act toward an employee motivated by
anti-military animus that is intended to
cause an adverse employment action,
and if that act is a proximate cause of the
ultimate employment action, then the
employer may be liable for discrimination or retaliation under the Uniformed
Services Employment and Reemployment
Rights Act (USERRA).
Plaintiff worked at defendant hospital and was a member of the U.S. Army
Reserve. Plaintiff experienced hostility
from his immediate supervisor, Mulally,
and Mulally’s supervisor, Korenchuk, relating to scheduling complications caused
by plaintiff’s military training. Mulally
issued plaintiff a disciplinary warning
for purportedly violating a nonexistent
company rule. Korenchuk then reported
to the hospital’s Vice President of Human Resources, Buck, that plaintiff had
violated the corrective action directive.
Relying on Korenchuk’s accusations, Buck
reviewed plaintiff’s employment file,
without conducting further investigation,
and then terminated plaintiff.
Plaintiff sued under USERRA, claiming that Mulally and Korenchuk had
an anti-military animus and that Buck’s
termination decision was based on their
unlawful influences. A jury determined
plaintiff’s military status was a “motivating factor” in the termination, and
awarded plaintiff damages. The Seventh
Circuit reversed, finding “cat’s paw” liability (holding the employer liable for
the unlawful animus of a supervisor who
didn’t make the ultimate employment
decision) could not be established “unless the non-decision maker exercised
such ‘singular influence’ over the decision
maker that the decision to terminate was
the product of ‘blind reliance.’”
The Supreme Court addressed the
question of whether the discriminatory
motive of Mulally and Korenchuk sufficiently constituted a “motivating factor”
for the adverse employment action, since
Buck terminated plaintiff. The Court
used common law tort “proximate cause”
analysis to determine that there can be
more than one “proximate cause” of the
resulting injury. The Court reasoned that
the exercise of judgment by a decision
maker does not prevent an intermediate supervisor’s action from constituting
a proximate cause of the injury to the
employee since, to establish proximate
cause, there only needs to be proof of
some direct relation between the claimed
injury and the alleged injurious conduct.
Because there was evidence that
plaintiff’s intermediate supervisors were
motivated by anti-military hostility and
intended to cause plaintiff’s termination,
the Court found a reasonable jury could
infer that the intermediate supervisors’
actions were a “proximate cause” of the
termination decision. Under these cirContinued on next page
The Verdict
■
Summer 2011
17
RECENT CASE NOTES
Recent Case Notes
cumstances, “cat’s paw” liability theory
could be applied to find the employer
violated USERRA because “one of its
agents committed an action based on
discriminatory animus that was intended
to cause, and in fact did cause, an adverse
employment decision.” The Supreme
Court reversed and remanded for further
proceedings. J
— Submitted by Mark P. Amberg
and Andrea M. Nagles
of Harrang Long Gary Rudnick PC
manager informed plaintiff that skip-
resources manager informed her that the
ping meal and break periods violated
practices she complained about were in
Oregon labor law and that defendant
violation of Oregon law, and that plain-
“was required to enforce meal and break
tiff herself actually “desired the benefit
requirements.” Later, plaintiff took her
of the employer’s unlawful practices,”
complaints further up the chain of com-
she could not demonstrate a belief that
mand to the chief executive officer and
she was reporting criminal conduct at
a vice president. Defendant later termi-
the time the report was made. Thus, the
nated plaintiff’s employment based on
Court held, plaintiff could not “demon-
apparently unrelated insubordination.
strate the gravamen of a claim” under
Plaintiff asserted claims for common law wrongful discharge and for
Internal complaints of wage
and hour violations not a
basis for common law wrongful discharge or statutory
whistleblower claim
retaliation under Oregon’s whistleblower
statute, ORS 659A.230, alleging that defendant retaliated and then terminated
her employment based on her internal
reports of wage and hour violations. The
trial court granted summary judgment to
defendant on both claims.
In Roberts v. Oregon Mutual Insur-
The Court of Appeals, relying on
ance Co., 242 Or App 474 (2011), the
Lamson v. Crater Lake Motors, Inc., 346
Oregon Court of Appeals held that an
Or 628, 216 P3d 852 (2009), held that
employee’s reports to management and
terminating an employee for making an
human resources about coworkers skip-
internal report of wage and hour viola-
ping meal and break periods did not
tions did not result in an “infringement
constitute a basis for either (1) a common
on a public duty or interest that is suffi-
law wrongful discharge claim or (2) a
ciently important to warrant a departure
statutory whistleblower claim under ORS
from the ordinary rules of law respecting
659A.230(1).
discharge from at-will employment.”
ORS 659A.230(1). J
— Submitted by Allyson S. Krueger
of Hitt Hiller Monfils Williams LLP
OREGON TORT
CLAIMS ACT
Plaintiffs’ sex abuse claims
against school district accrued, and the limitations
period commenced, at the
time of the abuse
In Doe v. Lake Oswego School District, 242 Or App 605 (2011), the Oregon
Court of Appeals ruled that under the
Oregon Tort Claims Act (OTCA), the limitations period for a sexual abuse claim
accrued at the point when the plaintiff
Plaintiff initially complained to her
Fundamentally, the Court held, plaintiff
supervisor that coworkers were skipping
“did not pursue a right related to her
meal and break periods in order to leave
role as an employee such as making a
work early and that this resulted in an
report of an alleged statutory or rule
increase in plaintiff’s workload. Plaintiff’s
violation to any entity or person with
supervisor did not respond to her com-
authority to take action to enforce the
by their fifth-grade teacher. In 2008,
plaints, but instead extended plaintiff’s
statutory duties that plaintiff contends
the plaintiffs brought claims for sexual
work hours. Plaintiff then complained
were violated.”
battery and intentional infliction of
to the human resources manager and
With regard to the statutory claim,
requested the same work schedule as
the Court of Appeals held that, because
her coworkers. The human resources
plaintiff was unaware until the human
was aware that the inappropriate conduct had occurred.
The Doe plaintiffs were seven adult
males born between 1957 and 1970 who
alleged that they were sexually abused
emotional distress against the teacher’s
employer, Lake Oswego School District.
The OTCA requires a plaintiff to give
18
The Verdict
■
Summer 2011
RECENT CASE NOTES
Recent Case Notes
notice of a claim within 270 days of the
alleged injury, and to bring the action
within two years of discovery of the alleged injury. The applicable notice period
and statute of limitations began to run
when the plaintiffs knew or reasonably
should have known the facts giving rise
to their claims, including “(1) the injury,
(2) the identity of the tortfeasor, and (3)
the cause of the injury.” The plaintiffs
argued that “the abuse caused such psychological confusion that they could not
consciously process that they had been
RECKLESS
DRIVING
Genuine issue of fact whether
defendant was driving recklessly at the time of the accident precluded summary
judgment against uninsured
plaintiff ’s claim for noneconomic damages
hurt by it in the moment.” Because the
In Morehouse v. Haynes, 350 Or
plaintiffs “did not perceive harm from
318 (2011), the Oregon Supreme Court
the touching at the time … [they] did not
found that the summary judgment
know they were injured.”
record contained evidence from which
The Oregon Court of Appeals rejected the plaintiffs’ argument.
a jury could find that defendant was
The
driving recklessly at the time of his colli-
court held that the meaning of the term
sion with plaintiff. Therefore, although
“injury” in the tort context is “legally
cognizable harm,” and therefore “for
claims under the OTCA based upon sexual
battery, the ‘injury’ is the inappropriate
touching itself.” The plaintiffs did not
claim that they were unaware of the in-
damages. The Oregon Court of Appeals
affirmed in a divided en banc decision.
The Oregon Supreme Court reversed. “Recklessly” is defined by statute. The Oregon Supreme Court held
that the definition has two components.
First, it requires that the defendant was
aware of and consciously disregarded
the risk posed by his conduct. The
second component of the definition is
whether the risk that the defendant was
aware of and consciously disregarded
was a “substantial and unjustified risk”
of endangering persons or property, and
whether disregarding that risk would be
a “gross deviation” from the standard
of care that a reasonable person would
observe in the circumstances.
The Court concluded there was suf-
plaintiff was driving uninsured at the
ficient evidence for a jury to find that
time of the accident, the trial court
these elements were satisfied. Viewed
erred by ordering summary judgment
in the light most favorable to plaintiff, a
against plaintiff’s claim for noneconomic
jury could find that defendant was very
damages.
familiar with the twisting road where
Plaintiff’s car and defendant’s car
the accident occurred because he drove
collided when defendant crossed the
it regularly, the road was posted with
center line and ran into plaintiff. Plain-
caution signs and a 25-mile-per-hour
tiff then sued for damages, including
advisory speed limit, defendant was
noneconomic damages. Under ORS
driving 45 to 50 miles per hour as he
31.715(1) and (5)(c), because plaintiff
entered the sharp curve where the acci-
was driving uninsured, he was not
dent occurred, and defendant lost sight
entitled to recover noneconomic dam-
of the road when he adjusted his radio
ages unless he proved that defendant’s
while entering the curve. Because this
conduct that caused plaintiff’s injuries
evidence could support a finding that
covers civil child abuse claims, but held
met the statutory definition of reckless
defendant was driving recklessly, the
that that this case law did not apply be-
driving. Finding that no reasonable
circuit court erred by granting partial
cause the statute did not apply to cases
brought under the OTCA. J
— Submitted by Heidee Stoller
of Ater Wynne LLP
juror could conclude that defendant
summary judgment against plaintiff’s
was driving recklessly, the circuit court
claim for noneconomic damages. J
— Submitted by R. Daniel Lindahl
of Lindahl Law Firm PC
appropriate touching, “but, rather, that
they were confused and unable to see
that the sexual touching was harmful.”
The claim therefore accrued when they
knew that the sexual touching occurred
because they knew that “a legally cognizable harm” had occurred. The court
acknowledged that this analysis differs
from case law interpreting the statute of
limitations set out in ORS 12.117, which
granted partial summary judgment
against plaintiff’s claim for noneconomic
The Verdict
■
Summer 2011
19
RECENT CASE NOTES
Recent Case Notes
RES IPSA
LOQUITUR
Res ipsa loquitur provided
inference that defendant’s
negligence caused plaintiff ’s
injuries
caused plaintiff’s injuries.
An inference of negligence is available under res ipsa loquitur only if the
plaintiff establishes (1) that there is an
injury; (2) that the injury is of a kind
that ordinarily does not occur in the
absence of negligence; and (3) that the
negligence that caused the event was
more probably than not attributable to
TRIAL PRACTICE
Court did not abuse its discretion by (1) preventing
plaintiff from seeking only
medical expenses not reimbursed by PIP coverage while
also telling the jury about
the expenses that were paid
by PIP, and (2) excluding
evidence of the defense IME
doctor’s annual income from
performing defense IMEs
In Hammer v. Fred Meyer Stores, Inc.,
a particular defendant. In Hammer, only
242 Or App 185 (2011), the Oregon Court
the third element was in dispute. The Or-
of Appeals held that the doctrine of res
egon Court of Appeals decided that the
ipsa loquitur provided an evidentiary
trial court had properly concluded that
basis for finding that defendant had
the third element was satisfied because
negligently caused plaintiff’s injuries.
the evidence showed that defendant was
The court also held that defendant had
in charge of installing, handling, moving,
failed to preserve its specific objections
and inspecting the display case, and there
In Schmitz v. Sanseri, Oregon Court
to the res ipsa loquitur instruction that
was no evidence that plaintiff or any third
of Appeals No. 145467 (June 15, 2011),
was given to the jury.
person altered, manipulated, damaged,
the Oregon Court of Appeals held that
In Hammer, plaintiff removed a
or mishandled the shelf. Consequently,
the trial court did not abuse its discre-
carton of lemonade from a shelf in a
the Court of Appeals decided that the
tion in (1) denying plaintiff’s motion to
display case in defendant’s store. The
trial court correctly denied defendant’s
amend her complaint by reducing her
shelf flipped up, causing lemonade car-
directed-verdict motion because res ipsa
economic damages to seek only medical
tons to tumble out of the display case.
loquitur supplied a factual inference
expenses PIP did not pay, and (2) sustain-
Plaintiff sued defendant for negligently
from which the jury could find that the
ing defendant’s objection to evidence of
causing the injuries she suffered while
defendant was negligent.
the annual income of the defense IME
attempting to avoid the falling bever-
Defendant also assigned error to the
age containers. A jury trial resulted in a
res ipsa loquitur jury instruction actually
verdict for plaintiff.
doctor that was cumulative of other
bias evidence.
given to the jury. But the Court of Ap-
Plaintiff sued defendant seeking
On appeal, defendant argued that
peals declined to reach the defendant’s
damages for personal injuries arising
the trial court erred by failing to grant a
arguments challenging the instruction
out of an automobile accident. Before
directed verdict against plaintiff’s claims
because, although defendant had ar-
trial, plaintiff’s PIP carrier advised that it
on the grounds that there was no evi-
gued in the trial court that no res ipsa
would seek PIP reimbursement directly
dence that, prior to plaintiff’s injury, de-
instruction was proper, it had not further
from defendant’s liability carrier and
fendant had discovered, or should have
raised the specific issues it advanced in
that it did not want plaintiff to seek
discovered, any defect in the shelf display.
the appellate court as reasons why the
reimbursement at trial. Plaintiff then
Whether defendant was entitled to a
instruction was not an accurate state-
proposed an amended complaint seek-
directed verdict came down to whether
ment of the law. J
— Submitted by Darren C. Beatty
of Davis Rothwell Earle & Xóchihua PC
ing only medical expenses not paid by
res ipsa loquitur was available to provide
an inference that defendant’s negligence
PIP, but still requested that she be able
to tell the jury the total amount of mediContinued on next page
20
The Verdict
■
Summer 2011
RECENT CASE NOTES
Recent Case Notes
cal expenses. Defendant filed a motion
of such benefits is not admissible.
sustained the objection. On appeal,
in limine to preclude plaintiff from seek-
At trial, defendant’s medical expert,
plaintiff argued that the excluded evi-
ing damages solely for medical expenses
Dr. Woodward, testified that he had
dence was qualitatively more probative
not paid by PIP. The trial judge ruled
performed medical exams exclusively
of Woodward’s bias than the other evi-
that PIP offset is a post-verdict issue and
for defense attorneys and workers’
dence already admitted. The Court of
required plaintiff to seek damages for
compensation carriers for the previous
the full amount of her medical expenses.
12 years. He testified that he performed
The Court of Appeals held that the
up to 20 examinations a week for de-
trial court did not abuse its discretion
fense attorneys and that he was paid
because to allow plaintiff to proceed
$200 to $250 per hour for pre-trial work
as requested would have improperly
and $600 per hour for trial testimony.
injected evidence of insurance in the
Plaintiff also asked Woodward to state
case. PIP benefits paid are collateral
his annual income from performing
benefits, and under the collateral source
examinations for defense attorneys.
its discretion in excluding it. J
— Submitted by Jennifer A.
rule (ORS 31.580), evidence of payment
Defendant objected and the trial court
Durham, Hiefield Foster & Glascock LLP
Appeals found that evidence of Woodward’s annual income was relevant to
show Woodward’s economic bias (OEC
609). However, the court reasoned that
while this excluded evidence would
have punctuated the point, it would
not have added to it significantly and
therefore the trial court did not abuse
The Oregon Association of Defense Counsel
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The Voice of the Civil Defense Lawyer
The Oregon Association of Defense Counsel works to protect the interests of
its members before the Oregon legislature, with a focus on:
Your contribution to the Oregon Association of Defense Counsel
State PAC will support OADC’s efforts in legislative activities and
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• Changes in civil practice
and the court system
• The judiciary and trial court
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Counsel has a comprehensive
government affairs program,
which includes providing effective
legislative advocacy in Salem.
We need your help and support to
continue this important work. All
donations to the OADC State PAC
go to directly support our efforts
to protect the interests of the Civil
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To make a contribution please contact the OADC
office to receive a donation form at 503.253.0527 or
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The Verdict
■
Summer 2011
21
PETITIONS FOR REVIEW
Pending Petitions For Review
The following is a brief summary of cases for which petitions for review have been filed with the Oregon
Supreme Court. These cases have been selected for their possible significance to OADC members;
however, this summary is not intended to be an exhaustive listing of the matters that are currently
pending before the court. For a complete itemization of the petitions and other cases, the reader is
directed to the court’s Advance Sheet publication.
Petitions for Review That Have Been Allowed
Agency
reinstatement or reemployment terminates three years after
the worker suffers a compensable injury, and not three years
after a compensable injury has been aggravated by another
incident.
n E a d s v. B o r m a n a n d W i l l a m e t t e S p i n e C e n t e r, L L C , 2 3 4 O r A p p 3 2 4 , r e v a l l o w e d ,
349 Or 173 (2010) (argued before the Oregon Supreme
Court on March 1, 2011).
Relying upon theories of actual agency and apparent
agency, plaintiff alleged that the defendant, a commercial
landlord, was vicariously liable for medical malpractice allegedly committed by a doctor who was an occupant in the
defendant’s building. The Court of Appeals affirmed summary
judgment for the defendant, finding no facts from which a
reasonable finder of fact could conclude that the doctor was
the landlord’s actual or apparent agent. On review, the issue
is whether an entity that allegedly promotes itself as a group
medical practice is liable for the negligence of one of the
medical practitioners who purportedly appears to be part of
the group practice, under principles of apparent agency law.
Disclosure Of Confidential Information
n Paul v. Providence Health System-Oregon, 237 Or App
584, 240 P3d 1110 (2010), rev allowed, 350 Or 297 (2011)
(scheduled to be argued before the Oregon Supreme
Court on September 21, 2011).
The Oregon Supreme Court granted plaintiffs’ petition
for review. On review, the issues are: (1) When a hospital’s
negligence results in disclosure of patients’ confidential
medical records, do the patients have a cause of action for
their emotional distress? (2) Are moneys expended to address the breach and mitigate future harm recoverable in a
negligence action? (3) Are moneys expended to address the
loss of confidentiality and mitigate future harm also a form
of “ascertainable loss” under the Unfair Trade Practices Act?
Employment
n Petock v. Asante, 237 Or App 113, 240 P3d 56, adh’d to on
recons as clarified, 238 Or App 711, 243 P3d 822 (2010),
rev allowed, 350 Or 130 (2011) (argued before the Oregon
Supreme Court on June 7, 2011).
The issue on review is whether the Oregon Court of Appeals correctly determined that an injured worker’s right to
Discovery
n A.G. v. Robert Guitron, 238 Or App 223, 241 P3d 1188
(2010), rev allowed, 350 Or 241 (2011) (scheduled to be
argued before the Oregon Supreme Court on September
20, 2011).
22
The Verdict
■
Summer 2011
(1) Whether an insured, in trying to establish a duty to
defend under an insurance policy, has the burden of producing evidence beyond that contained in the pleadings and the
policy of insurance?
(2) Whether there is a difference between coverage for
damage “to an insured’s work” and “arising from an insured’s
work”?
(3) Whether endorsements, exclusions, or any other provisions in an insurance policy should be construed independently, or instead construed within the text and context of
the policy as a whole?
(4) Whether extrinsic evidence, particularly that which
can be characterized as an admission, may be introduced to
create an ambiguity, or submitted to the factfinder under
proper instruction?
(5) Whether an insurance company can waive the application of an exclusion to its policy?
n Farmers Ins. Co. v. Mowry, 236 Or App 236, 234 P3d 1098,
Supreme Court on March 1, 2011).
In this insurance coverage case arising under an automobile insurance policy, the issue presented is where an automobile liability policy contains an absolute exclusion from
coverage that is inconsistent with Oregon law and that does
not inform the insured of the coverage that the law requires
it to provide, should a court nonetheless limit the coverage
available to the minimum required by the Financial Responsibility Law rather than the limit specified in the policy?
The Oregon Supreme Court granted plaintiff’s petition for
review. The issue on review is whether the Oregon Court of
Appeals erred when it decided that defendant was entitled,
under ORCP 44 C, to the report from a forensic psychological
evaluation conducted by the plaintiff’s expert witness.
Insurance
n Bresee Homes, Inc. v. Farmers Ins. Exch., 227 Or App 587,
Supreme Court on May 13, 2010).
Plaintiff Bresee Homes, Inc. seeks review of a Court of
Appeals decision affirming summary judgment granted to
defendant Farmers Insurance Exchange on plaintiff’s complaint against defendant for failure to defend and denial of
coverage.
Plaintiff is in the business of building homes. Some of the
homes that plaintiff built developed problems related to the
use of synthetic stucco siding, which gave rise to claims by the
homeowners. Plaintiff sought coverage under its policy with
defendant, which defendant denied. Plaintiff subsequently
filed a complaint alleging that defendant had breached the
insurance contract by failing to defend plaintiff and by denying coverage.
The circuit court granted defendant’s motion for summary
judgment, holding that coverage was excluded by the policy’s
exclusion for “products – completed operations.” That exclusion was defined as including all property damage “occurring
away from premises you own or rent and arising out of ‘your
product’ or ‘your work’” except for “[p]roducts that are still
in your physical possession” or “[w]ork that has not yet been
completed or abandoned.”
On appeal, the Court of Appeals affirmed. The Court
held: (1) the term “your work” in the contract included the
work performed by plaintiff’s subcontractor because the term
included work done on behalf of plaintiff; (2) the “products –
completed operations” exclusion excluded coverage unless an
exception to the exclusion applied; (3) plaintiff had the burden
to show that an exception to the exclusion applied, and failed
to meet that burden because it produced no evidence that
the damage alleged in the complaint occurred before completion of the work; (4) extrinsic evidence of the parties’ intent
is not part of the interpretation of an insurance policy under
Oregon law, either to create or explain ambiguities under
the policy; and (5) the doctrine of waiver does not apply in
circumstances where a plaintiff seeks to expand the coverage
of an insurance policy, because such an expansion would not
be a relinquishment of an insurer’s rights.
On review, the issues are as follows:
Legal Malpractice
n Kaseberg v. Davis Wright Tremaine, LLP, 240 Or App 352,
247 P3d 773 (2010), rev allowed, Oregon Supreme Court
No. S059154 (May 26, 2011) (scheduled to be argued before the Oregon Supreme Court on September 21, 2011).
The Oregon Supreme Court granted plaintiff’s petition for
review. In this legal malpractice action, the issue is whether
there is a genuine issue as to a material fact that precludes
summary judgment in favor of a defendant law firm with
regard to when a cause of action for legal malpractice accrued, when there is evidence that the client knew that he
had suffered harm; the client’s lawyer advised the client that
the harm was caused by a third party; the lawyer advised
the client that he had a great claim against the third party;
the lawyer agreed to represent the client in bringing a claim
against the third party; and the lawyer never indicated that
the harm might have been caused by the lawyer’s own acts
or omissions.
The Verdict
■
Summer 2011
23
Medical Malpractice
decedent’s accident and death were not foreseeable results
of its negligence in spilling material onto the freeway and
causing a traffic jam. The Court of Appeals held that the
trucking company was not entitled to a directed verdict because a reasonable juror could find that it is foreseeable that
a traffic jam will cause collisions among cars affected by the
slowed traffic. In addition, the trial court refused to permit
the trucking company to present any evidence of the drunk
driver’s intoxication. The Court of Appeals reversed, holding that the intoxication evidence was relevant to the jury’s
apportionment of fault between the trucking company and
the drunk driver.
On review, the issues are:
(1) Is causation an after-the-fact determination of whether
a defendant’s conduct in fact contributed to the harm of the
plaintiff, or is it part of the “totality of potentially causative
circumstances”?
(2) Is evidence of intoxication permissible in a civil tort
action, where the operative pleadings allege only simple
negligence?
(3) If simple negligence (i.e., failure to maintain speed,
lookout, and control) has been admitted by a defendant, is
evidence of intoxication by that defendant permissible to
compare negligence between defendants?
(4) Does comparison of fault under ORS 31.600 allow all
evidence of blameworthiness, including intoxication, without
an operative pleading setting forth a theory other than simple
negligence?
n Mead v. Legacy Health Sys., 231 Or App 451, 220 P3d 118
(2009), rev allowed, 348 Or 669 (2010) (argued before the
Oregon Supreme Court on February 9, 2011).
This medical malpractice case presents issues concerning
whether a physician-patient privilege exists.
Plaintiff went to the emergency room complaining of
severe low back pain and weakness in her legs. The ER physician contacted defendant, who was the neurosurgeon on call
that day. Defendant conferred with the ER physician about
plaintiff’s treatment.
Plaintiff’s condition deteriorated and she eventually had
emergency surgery and was left with permanent injuries.
Plaintiff sued defendant, alleging that his advice rendered
over the phone was negligent. Defendant contended that he
could not be liable because he did not have a physician-patient
relationship with the plaintiff at the time of the phone call.
At trial, the court decided that whether a physicianpatient relationship existed was a disputed issue of fact to be
decided by the jury. The jury found there was no physicianpatient relationship. Accordingly, the court entered judgment
for defendant.
The Court of Appeals reversed, holding as a matter of law
that plaintiff and defendant had a physician-patient relationship, and that the jury should have been given a peremptory
instruction to that effect.
The Oregon Supreme Court has granted review, and
identified two issues on review:
1. When does a physician-patient relationship arise
between an emergency room patient and an on-call neurosurgeon, when that neurosurgeon is consulted over the
telephone by the emergency room physician?
2. Did the Court of Appeals reexamine a fact determined
by the jury, in violation of Article VII (Amended), Section 3, of
the Oregon Constitution?
Petitions For Review - Denied
n Son v. Ashland Community Healthcare Services, 239 Or
App 495 (2010), rev den, 350 Or 297 (2011) (involving
whether the plaintiff’s own actions that led to her injuries, and the need to seek medical care, can be the basis
for a contributory fault affirmative defense in a medical
malpractice case).
Negligence
n Lasley v. Combined Transp., Inc., 234 Or App 11, adh’d to
as modified on recons, 236 Or App 1 (2010), rev allowed,
Oregon Supreme Court No. S058762 (January 14, 2011)
(argued before the Oregon Supreme Court on May 2,
2011).
Trucking company spilled a load of glass on the freeway,
causing a major traffic jam. While approaching the site of
the spill, decedent was hit from behind and killed by a speeding drunk driver. Decedent’s estate sued both the trucking
company and the drunk driver for negligence. The trucking
company moved for a directed verdict on the grounds that
24
The Verdict
n Wilcox v. Umali, 241 Or App 124, rev den, Oregon Supreme
Court No. S059301 (June 10, 2011) (involving the time
within which a party must serve a notice of appeal and
request for trial de novo after the filing of an arbitration
award in court-annexed arbitration).
■
Summer 2011
PRACTICE TIPS
✔
Practice Tips
Cards On The Table:
Expert Disclosure In Federal Court
Eric Meyer
Zipse, Elkins & Mitchell
I
t’s a short walk from the
tively simple trip-and-fall case. The trial
physician is not required to provide such
Mark O. Hatfield United
court had set various deadlines for ex-
an advance report about her/his treat-
States Courthouse, which
pert disclosures pursuant to Federal Rule
ment or about opinions reached during
houses the U. S. District Court
of Civil Procedure 26(a)(2)(B), which re-
the course of that treatment, she/he is
for the District of Oregon in
quires that the substance of an expert’s
required to disclose in advance any tes-
downtown Portland, to the Multnomah
timony counsel intends to offer beyond
County Courthouse a mere one block
the scope of those two matters—i.e.,
away, but in some ways they are worlds
any opinions not formed during the
apart.
period of actual treatment.
Those of us who practice primar-
In Goodman, the plaintiff’s attorney
ily in state court and
identified two non-medical experts
are accustomed to the
but did not provide reports from those
luxury of “trial by am-
experts until one week after the court-
bush”—whereby we
ordered deadline. Plaintiff’s counsel
do not have to divulge
did later produce reports from her two
either the identities
non-medical experts on the deadline for
of our experts or the
production of rebuttal expert reports.
substance of their an-
At that same time, she also identified a
ticipated testimony to
number of medical experts she intended
Eric Meyer
our opponents prior to trial—would be
to call at trial.
wise to remember that, in federal court,
Defense counsel moved to have all
holding one’s cards close to the vest in
of the plaintiff’s experts barred from tes-
such a manner is not only not permitted
tifying at trial on grounds of improper
but will likely result in disastrous conse-
disclosure. The trial court ruled that the
quences if even attempted.
non-medical experts could not testify in
In Goodman v. Staples The Office
testimony (other than that of a treating
the plaintiff’s case-in-chief but could be
Superstore LLC, No. 10-15021, 2011 WL
physician, with caveats discussed infra)
called in rebuttal. The court further held
1651246 (May 3, 2011), the United States
be fully and timely disclosed in a report
that the medical experts could testify
Court of Appeals for the Ninth Circuit
by the expert.
in the plaintiff’s case-in-chief, but only
considered what had begun as a rela-
Note, however, that while a treating
with respect to opinions reached during
The Verdict
■
Summer 2011
25
✔
PRACTICE TIPS
PRACTICE TIPS
their actual treatment, as demonstrated
failure to produce timely reports. Not
by the relevant medical records.
surprisingly, the Court of Appeals did
On appeal, the Ninth Circuit held
not find the explanation of plaintiff’s
that it was appropriate pursuant to
counsel that she had not read the trial
Federal Rules 26(a)(2)(B) and 37(c)(1)
court’s scheduling order to constitute
for the trial court to prohibit the treat-
“substantial justification.”
Be particularly wary of your
opponent attempting to use
the rebuttal portion of her/his
case as a “safe harbor” to offer
expert testimony that should
have been presented during
her/his case-in-chief but was
not because of the court’s disallowing it due to a failure to
make proper disclosure.
ing physicians from testifying based on
Be particularly wary of your oppo-
information not known to them and/or
nent attempting to use the rebuttal por-
opinions not formulated by them during
tion of her/his case as a “safe harbor” to
the course of treatment. The appellate
offer expert testimony that should have
court noted specifically that, under
been presented during her/his case-in-
FRCP 37(c)(1), the presumption is that a
chief but was not because of the court’s
failure to make the required disclosures
disallowing it due to a failure to make
will result in exclusion of the evidence
proper disclosure. “Rebuttal evidence
not fully and timely disclosed unless the
is evidence introduced by a plaintiff
party who has failed in her/his duty can
to meet new facts brought out in a
“rebuttal” that does not address new
establish that non-disclosure was harm-
defendant’s case-in-chief.” Goldfinger
issues raised in the defense’s presenta-
less or “substantially justified.”
Hawaii, Inc., v. Polynesian Resources,
tion of its case is improper and should
The Ninth Circuit further upheld
Inc., 869 F2d 1497(9th Cir 1989); see
be objected to and stricken.
the trial court’s barring of the non-
United States v. Perry, 550 F2d 524, 531-
Less exhaustive disclosure require-
medical experts from testifying during
32 (9th Cir), cert. denied, 431 US 918; 434
ments for treating physicians and cer-
the plaintiff’s case-in-chief due to the
US 827 (1977). Anything presented on
tain other experts have been required
since December 2010 pursuant to the
new FRCP 26(a)(2)(C), which allows in
certain instances for “summary disclosures” of the facts and opinions to be
offered by the experts rather than the
more traditional detailed expert reports.
ChuCk Corrigan
Caveat: Be aware, however, that
Mediation, Arbitration
the old requirements of Federal Rule
26(a)(2)(B) still apply to expert testi-
Oregon Super Lawyers 2011
Alternative Dispute Resolution
mony subject to Rule 702 (“Testimony
by Experts”), 703 (“Bases of Opinion
503.241.0677
1000 SW Broadway, Portland
Testimony by Experts”), and 705 (“Disclosure of Facts or Data Underlying Ex-
www.corrigan-law.com
pert Opinion”). One should tread very
carefully before concluding that any of
one’s own experts are not subject to the
more onerous disclosure requirements
of the old—and still existing—Rule.
When in doubt, err on the side of fuller
disclosure to preserve your expert’s ability to testify.
26
The Verdict
■
Summer 2011
COURT NEWS
Legislative Update
The 2011 Legislative Session Adjourns
Inga Deckert and John Isselmann, Jr.
It has been our pleasure once again to
represent the Oregon Association of Defense Counsel before the Oregon Legislative Assembly. The 2011 Legislative Session
adjourned June 30, making it one of the
shortest sessions in recent history. During
the session, we monitored or worked directly on approximately 65 separate pieces
of legislation on behalf of OADC. Of the roughly 65 bills we tracked
for OADC, only 11 were enacted into law.
This session, like the sessions in 2009 and
2010, was dominated by the lingering effects and impact of the global economic
recession, and focused on balancing the
state’s budget. A shortfall of $3.5 billion
from what was required to continue statefunded services at existing levels, as well
as a House evenly divided between Democrats and Republicans, made it difficult to
pass policy bills that were controversial or
that required additional funding. In fact,
no bills were enacted that were opposed
by OADC.
The OADC did not seek to introduce
legislation in the 2011 session. To provide
guidance and direction on bills introduced
during the session, the OADC Government
Affairs Committee reviewed approximately 100 pertinent bills and prioritized
them in accordance with OADC members’
interests. A summary of each measure we
tracked, including OADC’s position and the
final status of the measure, is available to
members at OADC’s website, www.oadc.
com. Throughout the 2010 interim, OADC
monitored the work of the Joint Interim
Committee on Justice System Revenues as
it developed recommendations on filing
fees and revenue distribution. The product
of the committee’s work was introduced
as House Bill 2710 and reflected the committee’s attempt to create a revenueneutral filing fee structure and a revenue
distribution structure that were simpler
and more streamlined than the systems
in place at the time. Even though the
bill was amended three times, the basic
tenets of the committee’s work remain,
although the filing fees differ in amount
and the revenue distribution structure is
somewhat altered. The bill also creates the
Joint Committee on State Court Revenue
Structure to review all court fees and fines
for consistency with principles outlined in
the bill and make recommended changes
to the 2013 Legislative Assembly, so there
may be more changes to come.
The next legislative session will begin
on February 1, 2012. Between now and
then, interim legislative committees will
be working on policy issues that will result in the preparation and introduction
of legislative measures in 2012. As was
the case in 2009 ahead of the 2010 session, the Legislature is planning at least
three “mini-sessions” where all interim
committees convene in Salem to perform
precatory work that will yield measures
for introduction in 2012. In all likelihood,
legislators will still be keenly focused on
budgetary issues as the second year of the
2011-13 biennium approaches.
We will be actively engaged with legislators and legislative committees during
the interim, representing OADC’s interests
as issues arise and policy develops for the
2012 session.
William E. Flinn
Mediation & arbitration
160 NW Irving Avenue
u
Suite 102
u
Bend OR 97701
(541) 385-3177
weflinn@flinnmediation.com
u
http://www.flinnmediation.com/
u MemberofOADCsince1968
u PastMemberOADCExecutive
Committee
u Over250jurytrials
u TrialsinoverhalfofOregon’s36counties
u WilltraveltoallpartsofOregonand
Northwest
No Travel Fees or Travel-Related Expenses
The Verdict
■
Summer 2011
27
AMICUS UPDATE
Amicus Update
Michael A. Lehner
OADC Amicus Committee Member and Board Liaison
Lehner & Rodrigues, PC
The OADC board has determined that the interests
of the membership are served by an active Amicus Committee.
The OADC Amicus Committee
considered two cases for possible amicus briefs this spring. The Committee
determined its participation was not
necessary in Portland School District No.
1J v. Great American Insurance Company, decided by the Oregon Court of
Appeals on February 23, 2011. In that
case, the primary issue before the Court
was whether the anti-assignment provision in a primary level insurance policy
was incorporated into the excess insurance policy issued by defendant Great
American. The Court of Appeals held
that the language of the Great American policy did not incorporate the antiassignment clause of the primary policy,
and a petition for review has been filed
with the Supreme Court. Although the
issue was considered important and
worthy of Supreme Court review, the
Amicus Committee concluded that the
issue would be thoroughly and properly
briefed by counsel for Great American,
and therefore OADC participation was
not needed.
The Committee did decide to appear as amicus in Hammer v. Fred Meyer
Stores, Inc., decided by the Court of
Appeals on April 20, 2011. In Hammer,
the trial court submitted plaintiff’s case
to the jury on a res ipsa loquitur theory
and gave an instruction which shifted
28
the burden of proof to the defendant
to show the fault of a third party. The
Court of Appeals held that the error, if
any, in the jury instruction was not properly preserved for review under ORCP
59H(2). The Amicus Committee believes
this is an important issue which affects
all trial lawyers and hopes to encourage the court to adopt a more practical
interpretation of the rule. The court in
Hammer modified the uniform res ipsa
instruction by added a burden-shifting
sentence at the request of the plaintiff.
Defendant’s counsel objected both before and after the instruction was given.
The question for review is whether the
objection included the requisite specificity to alert the trial court to the basis for
the objection.
The Committee invites your suggestions for important issues to be addressed in the future. You may contact
any of the Committee members: Lindsey
Hughes (Chair), Janet Schroer, Tom
Christ, Joel Devore, Mike Stone, P.K.
Runkles-Pearson, Susan Marmaduke,
and Michael Lehner (Board Liaison).
Directions for submitting requests
to the OADC Amicus Committee can be
found on the OADC website.
Council on Court
Procedures Update
Congratulations to OADC mem-
ter, John Bachofner of Jordan Ramis
bers Robert Keating of Keating Jones
PC, and Kristen David of Bowerman
Hughes and Jay Beattie of Lindsay
& David.
Hart Neil & Weigler, who have been
Practitioners who have concerns
appointed to the Council on Court
about the ORCPs should submit a
Procedures for the next two biennial
comment form to the Council. That
sessions of the Oregon legislature.
form—and much, much more—can
They will be joining OADC members
be found at www.counciloncourtpro-
Gene Buckle of Cosgrave Vergeer Kes-
cedures.org.
The Verdict
■
Summer 2011
ASSOCIATION NEWS
Association News
OCTO
Calendar
Calendar
Deadline
Contributions for The Verdict are
always welcome. For our Fall 2011
edition, please send your articles to:
Jeanne Loftis, Editor in Chief
888 SW 5th Ave., #300
Portland, OR 97204
503/499-4601
jeanne.loftis@bullivant.com
Please email your articles in either
WordPerfect or Microsoft Word format (preferred). ✪
New Members
Defense Practice Academy on
Depositions
September 30, 2011
Schwabe Williamson
Portland, OR
Fall Seminar
October 28, 2011
Hilton Portland
Portland, OR
Ethics Seminar
December 9, 2011
Portland, OR
2012 OADC Convention*
June 21-24, 2012
Sunriver, OR
All programs are subject to change
*The 2012 OADC Convention dates
are an exceptionally busy time
at Sunriver and we encourage all
convention attendees to book
their lodging early. You can make
reservations with Sunriver Resort
at our discounted group rates by
contacting them at 800.547.3922
and asking for OADC’s Annual
Convention room block. For more
information on what Sunriver Resort
has to offer, visit their website at
www.sunriver-resort.com.
OADC welcomes the
following new members to
the association:
Daniel Boyer
Curtis Burns
Hiefield Foster & Glascock
Tara Costanzo
William Flinn
William E. Flinn Mediation &
Arbitration
Thomas Hutchinson
Jamie Kilberg
Stoel Rives LLP
Abby Miller
Peter Motley
Law Offices of Anderson &
Nyburg
Christopher Parker
Davis Rothwell Earle & Xóchihua
Kirsikka Van Doren
Lehner & Rodrigues
Evelyn Winters
OADC Website
The OADC website, www.oadc.com, has many enhanced
features including our passcode protected on-line membership directory, enhanced calendar of events that allow on-line registration for
CLE events, enhanced OADC leadership listings, ability to update your membership data with OADC on-line, on-line membership application, on-line
dues renewal, amicus briefs that OADC has filed, expert witness information,
legal updates and tips, newsletters (for members only), and more!
To be a part of our active, members only, listserve please send an email
to info@oadc.com with a request to be added to the email listserve along
with your name. Once your membership is verified by OADC staff, you will
be added to the listserve and a welcome letter will be emailed to you with
instructions on how to use the listserve.
We hope you enjoy the site and find it a useful tool and benefit. Please
email us at info@oadc.com or call OADC at 503.253.0527 or 800.461.6687 with
questions. ✪
The Verdict
■
Summer 2011
29
OADC
Oregon Association
of Defense Counsel
147 S.E. 102nd
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