VERDICT OADC THE. Res Ipsa Loquitur. Defining the Injury Electronic Medical Records The Streisand Effect. Claims in Bankruptcy

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1 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 Trial Lawyers Defending You in the Courts of Oregon Oregon Association of Defense Counsel Summer 2011

2 2011 OADC Practice Group Leaders COMMERCIAL CONSTRUCTION COVERAGE EMPLOYMENT NEW LAWYERS Paul Conable, Chair Tonkon Torp LLP 888 SW 5th Ave., # / / (fax) Nicholas Baldwin-Sayre, Chair Cosgrave Vergeer Kester LLP 805 SW Broadway, #800 Portland, OR / / (fax) Robert Sabido, Chair Cosgrave Vergeer Kester LLP 805 SW Broadway, #800 Portland, OR / / (fax) Amy Joseph Pedersen, Chair Stoel Rives LLP 900 SW 5th Ave., # / / (fax) Vicki Smith, Chair Bodyfelt Mount 707 SW Washington St., #1100 Portland, OR / / (fax) Daniel Larsen, Vice Chair Ater Wynne LLP 1331 NW Lovejoy St., #900 Portland, OR / / (fax) Anne Cohen, Vice Chair Smith Freed & Eberhard PC 111 SW 5th Ave., # / / (fax) Lloyd Bernstein, Vice Chair Gordon & Polscer 9755 SW Barnes Rd., #650 Portland, OR / / (fax) Todd Hanchett, Vice Chair Barran Liebman LLP 601 SW 2nd Ave, 23rd Fl. 503/ / (fax) Ryan Boyle, Vice Chair Schwabe Williamson 1211 SW 5th Ave., # / / Heidee Stoller, Publications Ater Wynne LLP 1331 NW Lovejoy St., #900 Portland, OR / / (fax) Brian Church, Publications Davis Rothwell Earle & Xóchihua 111 SW 5th Ave., # / / (fax) Elizabeth Knight, Publications Dunn Carney 851 SW 6th Ave., # / / (fax) Allyson Krueger, Publications Hitt Hiller Monfils Williams LLP 411 SW 2nd Ave., # / / (fax) Jamie Valentine, Publications Keating Jones Hughes PC 1 SW Columbia, Ste. 800 Portland, OR / / (fax) Heidi Mandt, Board Liaison Law Offices of Kenneth R. Scearce Building One 4000 Kruse Way Pl., #135 Lake Oswego, OR / / (fax) Dan Schanz, Board Liaison Spooner & Much PC 530 Center St., NE, #722 Salem, OR / / (fax) Jay Beattie, Board Liaison Lindsay Hart 1300 SW 5th Ave., #3400 Portland, OR / / (fax) Jeffrey Eberhard, Board Liaison Smith Freed & Eberhard PC 111 SW 5th Ave., # / / (fax) David Campbell, Legislative Rep Williams Kastner & Gibbs PLLC 888 SW 5th Ave., # / / (fax) Molly Jo Mullen, Board Liaison Bodyfelt Mount 707 SW Washington St., #1100 Portland, OR / / (fax) PRODUCT LIABILITY PROFESSIONAL LIABILITY TRANSPORTATION TRIAL PRACTICE Mary-Anne Rayburn, Chair Martin Bischoff LLP 888 SW 5th Ave., # / / (fax) Scott O Donnell, Chair Keating Jones Hughes PC 1 SW Columbia, #800 Portland, OR / / (fax) Wendy Paris, Chair Law Offices of Kenneth R. Scearce 4000 Kruse Way Pl., #135 Lake Oswego, OR / / (fax) Jon Stride, Chair Tonkon Torp LLP 888 SW 5th Ave., # / / (fax) Joshua DeCristo, Vice Chair Schwabe Williamson 1211 SW 5th Ave., # / / (fax) Jonathan Bauer, Vice Chair Parks Bauer 570 Liberty St. SE #200 Salem, OR / / (fax) Eric Meyer, Vice Chair Zipse Elkins & Mitchell SW Greenburg Rd., #700 Portland, OR / / (fax) Eric DeFreest, Vice Chair Luvaas Cobb 777 High St. Eugene, OR / / (fax) Jennifer Durham, Publications Hiefield Foster & Glascock LLP 6915 SW Macadam Ave., #300 Portland, OR / / (fax) Clark Horner, Publications Hoffman Hart & Wagner 1000 SW Broadway, 20th Floor Portland, OR / / (fax) Matthew Ukishima, Publications Smith Freed & Eberhard PC 111 SW 5th Ave., # / / (fax) Kelly Giampa, Publications Hoffman Hart & Wagner 1000 SW Broadway, 20th Floor Portland, OR / / (fax) Michael Sam Sandmire, Board Liaison Ater Wynne LLP 1331 NW Lovejoy St., #900 Portland, OR / / (fax) Gordon L. Welborn, Board Liaison Hoffman Hart & Wagner 439 SW Umatilla Ave. Redmond, OR / / (fax) David Auxier, Board Liaison Yturri Rose LLP PO Box S Ontario, OR / / (fax) Michael Lehner, Board Liaison Lehner & Rodriques PC 1500 SW 1st Ave., #1150 Portland, OR / / (fax)

3 OADC BOARD OF DIRECTORS OFFICERS JEANNE LOFTIS President Bullivant Houser Bailey PC 888 SW 5 th Ave., # (fax) GREG LUSBY President Elect Arnold Gallagher PO Box 1758 Eugene, OR (fax) MICHAEL (SAM) SANDMIRE Secretary/Treasurer Ater Wynne LLP 1331 NW Lovejoy St., #900 Portland, OR (fax) DIRECTORS DAVID AUXIER Yturri Rose LLP PO Box S Ontario, OR (fax) Jay Beattie Lindsay Hart 1300 SW 5th Ave., #3400 Portland, OR (fax) Jeffrey Eberhard Smith Freed & Eberhard PC 111 SW 5th Avenue, # (fax) Michael Lehner Lehner & Rodrigues PC 1500 SW 1st Ave., #1150 Portland, OR (fax) HEIDI MANDT Law Offices of Kenneth R. Scearce 4000 Kruse Way Place Bldg 1, Ste. 135 Lake Oswego, OR (fax) MOLLY JO MULLEN Bodyfelt Mount 707 SW Washington St., #1100 Portland, OR (fax) DAN SCHANZ Spooner & Much PC 530 Center St., NE, #722 Salem, OR (fax) GORDON WELBORN Hoffman Hart & Wagner LLP 439 SW Umatilla Ave. Redmond, OR (fax) ADMINISTRATIVE OFFICE SANDRA FISHER, CAE 147 SE 102 nd Portland, OR (fax) D E P A R T M E N T S The Verdict A quarterly publication of OADC F E A T U R E S Defining the Injury : Examining the production of Medical Records in oregon Elijah B. Van Camp, Brisbee & Stockton LLC Abraham v. T. Henry Construction, Inc., and the Streisand Effect Jonathan Henderson, Davis Rothwell Earle & Xóchihua PC Electronic Medical Records - Pitfalls & Practicalities Clark R. Horner, Hoffman Hart & Wagner LLP Premises Liability: When Life Throws You Lemonade, Who Is Liable? Matthew G. Ukishima, Smith Freed & Eberhard PC Can a Plaintiff Abandon an Undiscovered Tort Claim in Bankruptcy? Adam S. Gamboa, Harrang Long Gary Rudnick PC FROM THE PRESIDENT 2 RECENT CASE NOTES 16 PENDING PETITIONS FOR REVIEW 22 PRACTICE TIPS 25 LEGISLATIVE UPDATE 27 ASSOCIATION NEWS 29

4 p r e s i d e n t s m e s s a g e b y j e a n n e l o f t i s Losing Control Without Losing Your Mind he title of this message T 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 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 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. 2 The Verdict Summer 2011

5 FEATURES Defining the Injury : Examining the Production of Medical Records in Oregon Elijah B. Van Camp Brisbee & Stockton LLC he scope of medical discovery T 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 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 examinations 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 automobile 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 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 Summer

6 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. Alvarez- Amador, 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 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 , 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 [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 Continued on next page 4 The Verdict Summer 2011

7 FEATURES Examining the Production of Medical Records continued from page 4 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 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 Representing clients in Oregon and Washington GevurtzMenashe.com 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. The firm you want on your side The Verdict Summer

8 FEATURES Abraham v. T. Henry Construction, Inc., and the Streisand Effect Jonathan Henderson Davis Rothwell Earle & Xóchihua PC n March 10, 2011, the Supreme Court released its O 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 (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 ; ORS Tort claims ordinarily accrue when the plaintiff discovers or should have discovered the injury. Berry v. Branner, 245 Or 307, , 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 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 Continued on next page 6 The Verdict Summer 2011

9 FEATURES The Streisand Effect continued from page 6 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 (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 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. The Verdict Summer

10 FEATURES Electronic Medical Records Pitfalls & Practicalities Clark R. Horner Hoffman Hart & Wagner LLP he days of a paper medical chart stored on your T doctor s office shelf are numbered. If you have visited a doctor or hospital recently, you may have discovered that paper charts are quickly being replaced by electronic medical records (EMRs or EHRs). This conversion will likely accelerate following federally funded Medicare and Medicaid incentives offering Clark R. Horner billions to healthcare groups that implement EMRs. 1 EMRs are thought to lead to cost savings, improved quality of care, promotion of evidence-based medicine, and improved mobility of records. 2 As with any new technology, however, there are potential pitfalls along with the benefits. Many of the pitfalls posed by new medical records technologies stem from the differences between paper and electronic medical records. Perhaps the most significant is the underlying format or structure. Consider the classic paper chart. 3 These are often contained in a single file in a single office, with each patient file physically separate from others, although a few aspects of the patient s care (hospital records, radiology, pharmacy, or billing records) may be maintained separately from the main chart or in a different location altogether. Generally, when requested, the chart can be removed from the shelf and photocopied. Occasionally, the original chart may be produced at deposition or trial. In contrast, under an EMR system there is no longer a single chart on the shelf; information is no longer physically stored page by page, patient by patient. Instead, each bit (i.e. piece) of electronic information is separately managed within a server or other computer system. When viewed by a healthcare professional, requested pieces of medical information are displayed on a computer screen, in a format chosen by the user. Further, access can be limited to certain sections or areas of the EMR, depending on the user. And, of course, in some systems, records can be accessed over the internet, from essentially anywhere. In other words, there is no single individual electronic file. Instead, individual pieces of a patient s medical record are stored as bits of data across a database. Thus, when a healthcare provider views a patient s EMR, each requested piece of medical information is pulled from the database and viewed on screen. But, when a records request is made, the patient s entire EMR is printed, frequently resulting in a printout containing hundreds, or even thousands, of pages. Moreover, each EMR system produces paper copies in a different form. 4 Because of these inherent differences in format, it is essential, when reviewing medical records from an EMR system, to become familiar with the layout and organization of the records, ensuring that you understand when and how such information is being provided. Whatever EMR system is utilized, key records are often scattered throughout the lengthy printout: for example, in hospital records, vital signs or patient assessments may be contained in multiple areas and spread over multiple pages. The format of a printed EMR is not intuitive. It is, nonetheless, critical to take the time and effort to understand all of the sections in any EMR you receive, and to identify all of the pertinent records or comments. Similarly, EMR printouts may contain multiple references to the same event. For instance, medical order may appear in a nursing end-of-shift summary, a separate medication administration log, Continued on next page 8 The Verdict Summer 2011

11 FEATURES Electronic Medical Records continued from page 8 and in individual notes from healthcare providers who ordered the medication or referenced the order. This does not mean that the medication was given three (or more) separate times; instead, the information was recorded in three (or more) separate areas. To the reader who is not familiar with the layout and format of these records, however, these entries can incorrectly suggest multiple dosages of a medication. Worse, in some instances, the mistaken understanding may not come to light until trial. Along with format and layout differences, another critical difference between paper and electronic charts is timing. Although electronic records often have precise timestamps attached to them, the timestamp does not necessarily signify the time a particular event took place: instead, it only reliably reflects the time an event was recorded into the EMR. Providers are limited to recording information when they are able to access a computer terminal, and they generally have little or no ability to alter these timestamps. 5 Therefore, in the litigation context, it is important to confirm with individual providers the actual timing and sequence of events shown in the electronic record. Further, in a few instances, even computers (shockingly) can be wrong. Rarely, updates to software can alter dates, although usually in an identifiable and explainable manner. Finally, once you become familiar with printed electronic records, you should keep in mind that most medical providers are not. They may be comfortable using the electronic version of records but not a lengthy EMR printout. Do not assume that your witness will be able to move quickly and happily from one area of the printed electronic records to the next. More likely, the printed copy will not correlate to the format and layout the provider is accustomed to seeing. Be prepared to walk through the relevant items with the medical provider in order to obtain the deposition testimony you need. EMRs are here to stay and are increasingly replacing paper charts. Time and effort spent by both counsel and medical professionals to understand these records and the information they contain early on in the litigation process will help avoid expensive surprises later in the case. Endnotes 1 See Electronic Health Record Incentive Program; Final Rule, 42 CFR Parts 412, 413, 422 and 495, et al., 75 Fed Reg 44314, July 28, Centers for Medicare & Medicaid Services, Fact Sheet: Electronic Health Records At-a-Glance (July 13, 2010). 3 A medical chart, electronic or otherwise, contains individually-identifiable health information. This is defined in various state and federal laws, including the Health Insurance Portability and Accountability Act (HIPAA) (45 CFR 160, 164). Along with the physician-patient privilege, these statutes provide substantial privacy protections. In response, ORCP 55 was amended to clarify how such individually-identifiable health information may be obtained, and includes specific notice requirements. 4 One criticism, beyond the scope of this article, is the lack of standards for interoperability between EMR systems. In general, EMR systems, even by the same vendor, are customized to the individual purchaser. Consequently, familiarity with one EMR system does not guarantee familiarity with any other EMR 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. 5 Of course, as with other electronic records, there can be additional underlying data, such as audit trails, which in some instances may be informative. The Verdict Summer

12 FEATURES Premises Liability: When Life Throws You Lemonade, Who Is Liable? Matthew G. Ukishima Smith Freed & Eberhard PC veryone is familiar with the E 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 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 Continued on next page 10 The Verdict Summer 2011

13 FEATURES Premises Liability continued from page 10 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 PC T R I A L L A W Y E R S P O R T L A N D I I W W W. M H G M. C O M The Verdict Summer

14 FEATURES Can a Plaintiff Abandon an Undiscovered Tort Claim in Bankruptcy? Adam S. Gamboa Harrang Long Gary Rudnick PC he short answer is yes. T Many defense attorneys are aware that a plaintiff s failure to disclose a known potential cause of action in a bankruptcy petition may expose plaintiff to a dispositive affirmative defense (judicial estoppel and/ or real party in interest). 1 What is not common knowledge is that dispositive affirmative defenses can also be raised even if plaintiff Adam Gamboa did not know of the potential cause of action at the time he filed his bankruptcy petition, and even if he did not discover the claim until years after the bankruptcy concluded. Consider this hypothetical: (1) in 2002 a plaintiff purchases a new furnace, which is negligently installed and exposes plaintiff to long-term carbon monoxide poisoning, leading to numerous unexplained health problems; (2) in 2006 the plaintiff files Chapter 7 bankruptcy and has all of his debts discharged; and (3) in 2008 the plaintiff discovers the carbon monoxide levels and files suit against the company that installed his furnace. The question is, can the company successfully defend the suit by asserting that the plaintiff is not the real party in interest (and/or plaintiff lacks standing)? While there is no Oregon appellate case law directly on point, the weight of authority from other jurisdictions supports the defense. Interest in Tort Claims Is Considered Property of the Bankruptcy Estate With some limited exceptions, a bankruptcy estate consists of all legal or equitable interests of the debtor in property as of the commencement of the case. 11 USC 541(a)(1). The legislative history of the Bankruptcy Code states that the scope of this paragraph is intended to be very broad. In re Ellwanger, 140 BR 891, 897 (Bankr WD Wa 1992). Therefore, when a plaintiff files a Chapter 7 bankruptcy petition, his bankruptcy estate includes all legal or equitable interests in his property. This property includes rights of action for personal injury. Id. Tort Claims Not Properly Scheduled Are Abandoned by the Debtor to the Bankruptcy Estate When a debtor files a petition for bankruptcy, he must file a schedule of assets, including the debtor s present and potential causes of action in tort against a third party. 11 USC 521(1); In re Coastal Plains, Inc., 179 F3d 197, 208 (5th Cir 1999); Vucak v. City of Portland, 194 Or App 564, 566, 96P3d 362 (2004) (emphasis added). If an asset is scheduled and the trustee does not dispose of it when the case is closed, then the asset is deemed abandoned to the debtor. 11 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). Therefore, Ms. Vucak s claim was not abandoned to her when her bankruptcy estate closed, but rather remained the property of her bankruptcy estate. In our furnace hypothetical, the situation is slightly different. The plaintiff has a good reason for failing to list the claim on the schedule of assets, he does not yet know about it. Nevertheless, the operative requirements of the Bankruptcy Code the claim is not 12 The Verdict Summer 2011

15 FEATURES An Undiscovered Tort Claim continued from page 12 abandoned to the debtor unless it is formally scheduled pursuant to 11 USC 521(1) remain the same. In our hypothetical, plaintiff s claim was not properly scheduled and disposed of, and therefore it remains the property of the bankruptcy estate. 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 holding in Vucak does not apply where a plaintiff was unaware of a potential cause of action at the time he or she filed the bankruptcy petition. While there is no Oregon case law directly on point, the question of whether a cause of action is the property of a bankruptcy estate is a matter of federal bankruptcy law, which generally holds that a plaintiff s interest in an unknown claim is still the property of his bankruptcy estate even if the claim has not accrued at the time the bankruptcy petition is filed, and even though plaintiff has not discovered the claim. In re Ellwanger, supra, 140 BR 891, is a case from the Bankruptcy Court of the Western District of Washington. There, the debtors made a claim of attorney malpractice against their bankruptcy attorneys for negligent acts that allegedly occurred both pre-petition and post-petition. The defendants filed a motion for summary judgment, claiming that the plaintiffs were not the real party in interest to the malpractice claims because the claims were the property of the bankruptcy estate. Plaintiffs argued that their causes of action did not exist at the time they filed their bankruptcy petition, because the negligence did not accrue until the malpractice became irremediable (post-petition). Id. at 898. Judge Brandt examined several analogous appellate cases, including two cases from the Ninth Circuit Court of Appeals, In re Neuton, 922 F2d 1379 (9th Cir 1990) and In re Ryerson, 739 F2d 1423 (9th Cir 1984). Judge Brandt agreed with the reasoning in Neuton and Ryerson and held that a contingent claim for negligence where the negligent acts occurred pre-petition was part of the bankruptcy estate, even though the claim did not accrue until after the petition was filed. Ellwanger, 140 BR at 898. In so holding, the Ellwanger court noted that the problem with the accrual and discovery arguments made by plaintiffs is that those arguments are legal concepts relevant to statutes of limitations law under state law. Id. at 897. These state law concepts do not determine what qualifies as property for the purposes of a bankruptcy estate. Id. While state law defines the nature of a debtor s interest in property, whether this interest is property of the estate is a matter of federal bankruptcy law. Id. Although Ellwanger has been cited for this proposition since 1992, contrary authority exists. The minority position is that plaintiff does not have an interest in property for 541 purposes until plaintiff is actually damaged, or the cause of action accrues. 2 The cases that distinguish Ellwanger (primarily attorney malpractice cases) all deal with scenarios where the negligent conduct took place pre-petition but plaintiff s injury occurred post-petition. There is no known case in which a court has held that a cause of action which accrued pre-petition but was not discovered until post-petition is property of the debtor and not the bankruptcy estate. Conclusion Applying Ellwanger to our hypothetical, defense counsel for the furnace company has a strong argument that plaintiff is not the real party in interest. Even applying the contrary authority where accrual of the claim was the determinative factor, defense counsel could (and should) argue that plaintiff s claim against the furnace installer is the property of plaintiff s bankruptcy estate because it had not been properly scheduled or administered. Thus, the claim was not abandoned by plaintiff when the bankruptcy estate closed. The proper course for plaintiff in the hypothetical would be to petition the Bankruptcy Court to re-open his bankruptcy estate and obtain a determination from the trustee whether or not the trustee wanted to substitute as plaintiff in the case, or abandon the claim to the plaintiff. However, a plaintiff can be hesitant to take this course for fear a claim will be lost or substantially reduced if the bankruptcy estate were to become the proper party in interest. If plaintiff refuses to have the bankruptcy estate re-opened, a motion for summary judgment should be considered to have the issue determined by the court. Although there is no Oregon appellate case law directly on point, the weight of authority from other jurisdictions supports the defense. Endnotes 1 Wendy Vierra, Inadequate Bankruptcy Disclosure Limits Subsequent Claims, OADC, Summer 2005, at Swift v. Seidler, 198 BR 927, 935 (Bankr WD Tex 1996); Holstein v. Knopfler, 321 BR 229, 235 (Bankr ND Illinois 2005); In re De Hertogh, 412 BR 24, 41 (Bankr Conn 2009). The Verdict Summer

16 OADC 2011 Janet Hoffman, prominent criminal defense attorney Captain Robert McGovern, keynote speaker; Dan Schanz, Board member and convention co-chair; Greg Lusby, President-Elect DRI President Matt Cairns Judge Judith Matarazzo 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 Golf Tournament CalendarWinners 1st Place Law Net Jennifer Durham Andrew Glascock Jim Oliver Wendy Paris 1st Place Low Gross Peter Eidenberg Devan Forsyth Scott O Donnell Jeff Smith 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 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

17 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 Fun Calendar 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: 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

18 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 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 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 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 (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, Defendant s answer alleged a comparative fault affirmative defense. In October 2007, plaintiff noticed defendant s deposition for November 12, 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, 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 de- Continued on next page 16 The Verdict Summer 2011

19 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, 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 cir- Continued on next page The Verdict Summer

20 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 Internal complaints of wage and hour violations not a basis for common law wrongful discharge or statutory whistleblower claim In Roberts v. Oregon Mutual Insurance Co., 242 Or App 474 (2011), the Oregon Court of Appeals held that an employee s reports to management and human resources about coworkers skipping meal and break periods did not constitute a basis for either (1) a common law wrongful discharge claim or (2) a statutory whistleblower claim under ORS 659A.230(1). Plaintiff initially complained to her supervisor that coworkers were skipping meal and break periods in order to leave work early and that this resulted in an increase in plaintiff s workload. Plaintiff s supervisor did not respond to her complaints, but instead extended plaintiff s work hours. Plaintiff then complained to the human resources manager and requested the same work schedule as her coworkers. The human resources manager informed plaintiff that skipping meal and break periods violated Oregon labor law and that defendant was required to enforce meal and break requirements. Later, plaintiff took her complaints further up the chain of command to the chief executive officer and a vice president. Defendant later terminated plaintiff s employment based on apparently unrelated insubordination. Plaintiff asserted claims for common law wrongful discharge and for 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. The Court of Appeals, relying on Lamson v. Crater Lake Motors, Inc., 346 Or 628, 216 P3d 852 (2009), held that terminating an employee for making an internal report of wage and hour violations did not result in an infringement on a public duty or interest that is sufficiently important to warrant a departure from the ordinary rules of law respecting discharge from at-will employment. Fundamentally, the Court held, plaintiff did not pursue a right related to her role as an employee such as making a report of an alleged statutory or rule violation to any entity or person with authority to take action to enforce the statutory duties that plaintiff contends were violated. With regard to the statutory claim, the Court of Appeals held that, because plaintiff was unaware until the human resources manager informed her that the practices she complained about were in violation of Oregon law, and that plaintiff herself actually desired the benefit of the employer s unlawful practices, she could not demonstrate a belief that she was reporting criminal conduct at the time the report was made. Thus, the Court held, plaintiff could not demonstrate the gravamen of a claim under 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 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 by their fifth-grade teacher. In 2008, the plaintiffs brought claims for sexual battery and intentional infliction of emotional distress against the teacher s employer, Lake Oswego School District. The OTCA requires a plaintiff to give Continued on next page 18 The Verdict Summer 2011

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