THE TM VERDICT

Employer Liability for After-Hours Drinking Oregon Association Reviewing Summary Judgment of Defense Counsel OADC Motions Before Trial Trial Lawyers Defending You in the Courts of Oregon 2019 • Issue 3 Enforceability of Arbitration Agreements 2019 OADC Practice Group Leaders Chad Colton, Chair Bill Edgar, Vice Chair Daniel Lis, Publications Daniel Larsen, Board Liaison Markowitz Herbold Greenspoon Marder Buchalter Buchalter 1211 SW 5th Ave., #3000 1211 SW 5th Ave #2850 1331 NW Lovejoy St., #900 1331 NW Lovejoy St., #900 Portland, OR 97204 | 503.295.3085 Portland, OR 97204 | 503.878.8036 Portland, OR 97209 | 503.226.8407 Portland, OR 97209 | 503.226.1191 [email protected] [email protected] [email protected] [email protected] AL CO MM ERCI

Graham Miller, Chair Jamison McCune, Vice Chair Andrew Gust, Publications Allen Eraut, Board Liaison T IO N Wood Smith Henning & Berman Bodyfelt Mount Betts Patterson & Mines Rizzo Mattingly Bosworth 12755 SW 69th Ave., #100 319 SW Washington St., #1200 111 SW 5th Ave., #3650 1300 SW 6th Ave., #330 Portland, OR 97223 | 971.256.4011 Portland, OR 97204 | 503.243.1022 Portland, OR 97204 | 503.961.6536 Portland, OR 97201 | 503.229.1819 [email protected] [email protected] [email protected] [email protected] CO N S T R U C Tessan Wess, Chair Jacqueline Mitchson, Vice Chair Chris Parker, Publications Lloyd Bernstein, Board Liaison Lewis Brisbois Bullivant Houser Bailey Davis Rothwell Earle & Xóchihua Bullivant Houser Bailey E AG 888 SW 5th Ave., #900 888 SW 5th Ave., #300 200 SW Market St., #1800 888 SW Fifth Ave., #300 Portland, OR 97204 | 971.334.7005 Portland, OR 97204 | 503.228.6351 Portland, OR 97201 | 503.222.4422 Portland, OR 97204 | 503.228.6351 [email protected] [email protected] [email protected] [email protected] COVER

Kjersten Turpen, Chair Naomi Johnson, Vice Chair Melissa Healey, Publications Peter Tuenge, Board Liaison K&L Gates Bullard Law Stoel Rives Keating Jones Hughes

YM E NT One SW Columbia St., #1900 200 Market St., #1900 760 SW 9th Ave., #3000 200 SW Market St., #900 O Portland, OR 97204 | 503.228.3200 Portland, OR 97201 | 503.224.8851 Portland, OR 97205 | 503.294.9263 Portland, OR 97201 | 503.222.9955 [email protected] [email protected] [email protected] [email protected] E M P L David Landrum, Chair Blake Fry, Vice Chair Ryan Christopher Bailey, Publications Heather Bowman, Board Liaison Multnomah County Attorney’s Office Mersereau Shannon Portland Office of City Attorney Oregon State Bar Professional 501 SW Hawthorne Blvd., #500 111 SW Columbia, #1100 1221 SW 4th Ave Ste 430 Liability Fund Portland, OR 97214 Portland, OR 97201 | 503.595.8034 Portland OR 97204 | 503.823.9968 16037 SW Upper Boones Ferry Rd. 503.988.3138 ext. 87338 [email protected] [email protected] Tigard, OR 97281 | 503.639.6911

Li ab i l ty [email protected] [email protected] Gover nm e nt

Megan Cook, Chair Jessica Wilcox, Vice Chair Helaina Chinn, Publications Katie Eichner, Board Liaison Bullivant Houser Bailey Betts Petterson & Mines Bodyfelt Mount Lindsay Hart 888 SW 5th Ave., #300 111 SW 5th Ave., #3650 319 SW Washington St., #1200 1300 SW 5th Ave., #3400 N EW W Y ERS Portland, OR 97204 | 503.499.4402 Portland, OR 97204 | 503.757.8638 Portland, OR 97204 | 503.243.1022 Portland, OR 97201 | 503.226.7677 [email protected] [email protected] [email protected] [email protected] LA

Kirsten Curtis, Chair John Bachofner, Vice Chair Michael Jacobs, Publications John Pollino, Board Liaison Thenell Law Group Jordan Ramis Hart Wagner Garrett Hemann Robertson t ice 12909 SW 68th Pkwy., #290 1499 SE Tech Center Pl. #380 1000 SW Broadway, 20th Floor 1011 Commercial St. NE c

a Portland, OR 97223 | 503.372.6450 Vancouver, WA 98683 | 360.567.3900 Portland, OR 97205 | 503.222.4499 Salem, OR 97301 | 503.581.1501

P r [email protected] [email protected] [email protected] [email protected] e m nt M anag

T Nicholas Wheeler, Chair Jessica Hill, Vice Chair Daniel Nichols, Publications George Pitcher, Board Liaison Cosgrave Vergeer Kester Davis Rothwell Earle & Xóchihua Redgrave Lewis Brisbois 888 SW Fifth Ave., #500 111 SW 5th Ave., #2700 Portland, OR 97229 888 SW 5th Ave., #900 Portland, OR 97204 | 503.323.9000 Portland, OR 97204 | 503.222.4422 415.650.6176 Portland, OR 97204 | 971.712.2803 L I AB TY DU C PRO [email protected] [email protected] [email protected] [email protected]

Donna Lee, Chair Scott Schauermann, Vice Chair Shayna Rogers, Publications Grant Stockton, Board Liaison Hart Wagner Hitt Hiller Monfils Williams Garrett Hemann Robertson Brisbee & Stockton 1000 SW Broadway, 20th Floor 411 SW 2nd Ave., #400 1011 Commercial St. NE PO Box 567 Portland, OR 97205 Portland, OR 97204 Salem, OR 97301 | 503.581.1501 Hillsboro, OR 97123 | 503.648.6677 [email protected] L I AB TY 503.222.4499 Ext. 1195 503.595.5385 [email protected] [email protected] [email protected] NAL PROFESSIO Greg Lockwood, Vice Chair Christopher Piekarski, Publications Elana Charles, Publications Timothy Heinson, Board Liaison Gordon Rees Scully Mansukhani Allstate/Encompass/Esurance Staff Lindsay Hart Heinson & DeDobblelaere

IO N TAT 121 SW Morrison St., #1575 Counsel 1300 SW 5th Ave., #3400 19530 SE Sunnyside Rd. Portland, OR 97204 | 503.227.8269 1000 SW Broadway, #1080 Portland, OR 97201 Damascus, OR 97089 [email protected] Portland, OR 97205 | 503.553.0360 503.226.7677 503.479.6223 [email protected] [email protected] [email protected] AN SPOR T R

Laura Caldera, Chair Patrick Wylie, Vice Chair Abby Miller, Publications Tom Armosino, Board Liaison Bullivant Houser Bailey Davis Rothwell Earle & Xóchihua Hodgkinson Street Mepham Frohnmayer Deatherage T ICE 888 SW 5th Ave., #300 200 SW Market St., #1800 1620 SW Taylor, #350 2592 E Barnett Rd. C A

T RI AL Portland, OR 97204 | 503.499.4602 Portland, OR 97201 | 503/222.4422 Portland, OR 97205 | 503.222.1143 Medford, OR 97504 | 541.858.3378

PR [email protected] [email protected] [email protected] [email protected]

W Alice Newlin, Chair Michelle Smigel, Co-Vice Chair Pamela Paluga, Publications Katie Smith, Board Liaison Lindsay Hart 503.758.5466 Abbott Law Group Lorber Greenfield & Polito 1300 SW 5th Ave., #3400 [email protected] 215 SW Washington St., #300 610 SW Alder St., #315 Portland, OR 97201 | 503.226.7677 Kate Wilkinson, Co-Vice Chair Portland, OR 97204 | 503.595.9510 Portland, OR 97205 [email protected] 971.321.3788 [email protected] 503.416.4785 [email protected] [email protected] WO M E N I LA 2019 OADC BOARD OF DIRECTORS OFFICERS Features George Pitcher President Drinks Are on the Boss: Employer Liability for After-Hours Drinking...... 4 Lewis Brisbois 888 SW 5th Ave., #900 —Alex Wheatley, Fisher Phillips Portland, OR 97204 Phone: 971.712.2803 [email protected] Tips for Renewing Summary Judgment Arguments Before Trial...... 6 Lloyd Bernstein —Ryan C. Bailey, Deputy City Attorney, Portland City Attorney’s Office President Elect Bullivant Houser Bailey 888 SW Fifth Ave., #300 Recent U.S. Supreme Court Rulings Impact Oregon Employers...... 8 Portland, OR 97204 That Use Arbitration Agreements Phone: 503.228.6351 Email: [email protected] —Kjersten Turpen, K&L Gates LLP Grant Stockton Secretary/Treasurer Brisbee & Stockton PO Box 567 Hillsboro, OR 97123 Departments Phone: 503.648.6677 Email: [email protected] From The President...... 2 DIRECTORS Tom Armosino Frohnmayer Deatherage Recent Case Notes...... 10 2592 E Barnett Rd. Medford, OR 97504 Phone: 541.858.3378 Petitions For Review...... 16 Email: [email protected] Heather Bowman Oregon State Bar Professional Liability Fund Defense Victory!...... 18 16037 SW Upper Boones Ferry Rd. Tigard, OR 97281 Phone: 503.639.6911 Email: [email protected] The Scribe’s Tips For Better Writing...... 20 Katie Eichner Lindsay Hart Legislative Update...... 22 1300 SW 5th Ave., #3400 Portland, OR 97201 Phone: 503.226.7677 Email: [email protected] Judge’s Bios...... 23 Allen Eraut Rizzo Mattingly Bosworth 1300 SW 6th Ave., #330 Annual Conference Highlights ...... 24 Portland, OR 97201 Phone: 503.229.1819 Email: [email protected] Association News...... 26 Timothy Heinson Heinson & DeDobbelaere 9200 SE Sunnybrook Blvd., #335 Clackamas, OR 97015 Phone: 503.479.6223 Email: [email protected] Daniel Larsen Buchalter 1331 NW Lovejoy St., #900 Portland, OR 97209-3280 Phone: 503.226.1191 Email: [email protected] John Pollino On the Cover Garrett Hemann Robertson 1011 Commercial St. NE Salem, OR 97301 Phone: 503.581.1501 Email: [email protected] Katie Smith Lorber Greenfield & Polito 610 SW Alder St., #315 Portland, OR 97025 503.416.4785 Email: [email protected] Peter Tuenge Keating Jones Hughes 1 SW Columbia Street, #800 Portland, OR 97258 Phone: 503.222.9955 Email: [email protected] ADMINISTRATIVE OFFICE Vicky Danielson 147 SE 102nd Avenue Portland, OR 97216 503.253.0527 • 503.253.9172 (fax) 800.461.6687 • [email protected] The VerdictTM President’s Message President’s Message A Long, Strange Trip: Traveling the Northwest Through Civil Litigation George Pitcher, Lewis Brisbois

I recently took a plaintiff’s deposition at him deposition exhibits through a slot. pointed us to the bookstore. Alas, there the Snake River Correctional Institute in Being accustomed to working mostly in was no furniture at the bookstore, only a Ontario, Oregon. After a failed attempt law offices, it feels different to have two 15-page, old-fashioned paper catalog with at delegating the sets of sliding, locking doors close loudly samples of furniture available by custom deposition to an behind you and to walk around amongst order. We learned that the mascot of TVCC associate, I groaned at the “general population.” Good company is the Chukars. the thought of either improved the trip. I coordinated my travel Business travel over the years has driving to Ontario (five with a fellow OADC member representing taken me to all corners of Oregon and hours and 45 minutes) a codefendant. We shared a rental car Washington, including places such as or flying to Boise, renting and drove to the prison together. My Enterprise, Gold Beach, Sequim, Moses a car, and driving back colleague had heard that the prisoners Lake, and Omak. I have been to the George Pitcher into Oregon to the made some nice wood furniture, at very Banana Belt of Oregon (far Southern prison. While the travel was a hassle, the reasonable prices. We asked at the prison Oregon Coast) and the Palm Springs of trip—like many prior business trips to where we could find this handcrafted Washington (so declared by a highway small places where I would not otherwise furniture. Someone told us they thought sign outside Yakima). Possibly my biggest go—turned out to be interesting and it was sold at Treasure Valley Community administrative failing as a lawyer came memorable. We learned upon arrival that College, which led to a detour and frolic. more than a decade ago and involved our deponent had recently misbehaved We wandered the largely deserted campus a deposition in Brookings, a five-hour, and was therefore required to sit in a steel looking for a prisoner furniture showroom. 40-minute drive from Portland. The cage during his deposition. We handed We eventually found a professor who deposition was in early December, and I continued on next page

2 The VerdictTM ■ 2019–Issue 3 President’s Message president’s message continued from previous page

was a little surprised while approaching deposition. Grants Pass to find the rain changing to During a trip to Yamhill Here is a tip for Northwest business travel snow. Then it started snowing so hard that to small places: find somewhere unique all traffic stopped and I-5 was shut down County I chatted with one of or historic to stay when possible, such as for the night, with me on it. It reopened the deputies about security The Whitman in Walla Walla, Hotel Condon around 5:00 a.m., and I made it to my 9:00 in Condon, or The Davenport in Spokane. A deposition on time. The court reporter my procedures. He pointed out group of local asbestos defense lawyers office had retained also made it on time, with her own story of treacherous travel where there were still holes spent the better part of two weeks taking depositions at the Big K Ranch near from Portland. Unfortunately, a court in a staircase from gun shots reporter retained by another party was Elkton. They still reminisce fondly about also there. There is no good way to say “My fired during the court’s pre- their communal dinners in the lodge and deepest apologies for causing you to drive watching wild turkeys roam around in the from Portland to Brookings through a snow metal detector days. mornings and evenings. storm for a deposition where your services Business travel can be a stressful grind, will not be needed.” To this day, I still cringe bringing both suits and waders, an particularly with modern law practices when that court reporter walks into a evening walking along a river is usually dominated by email and expectations of deposition. She has not forgotten our trip more rewarding than an evening in a Best constant availability. But take the time, to Brookings. Western or Holiday Inn. I have started when possible, to see and learn something Site visits, a sort of field trip for lawyers, days in court or depositions in Medford, new on work trips to unusual places. have provided further opportunities to Roseburg, and Klamath Falls and ended Google it ahead of time, or look up the see new places and learn about things not those days on the Rogue, North Umpqua, most popular attractions on Trip Advisor. generally seen in a law office. I have toured and Williamson Rivers. I first explored When you have to go somewhere for work and inspected onion processing plants, the Owyhee River in far Eastern Oregon that is small, strange, or out of the way, paper mills from Longview to Port Angeles, while on a trip to prepare a rancher for a embrace it and make the most of it. trampoline parks, farming facilities that compact hay bales with hydraulic rams, and a chromite mine and processing plant near Coos Bay. Visiting courthouses outside of Portland sometimes proves interesting, particularly in smaller places. During a trip to Yamhill County I chatted with one of the deputies about security procedures. He pointed out where there were still holes in a staircase from gun shots fired during the court’s pre-metal detector days. During a break in a trial in Hood River I was able to chat with the judge about a shared hobby—fly fishing for steelhead on the Deschutes and John Day Rivers. I have occasionally attempted to mix, with varied success, my fly fishing with business trips to remote places. While timing and packing is complicated when

The VerdictTM ■ 2019–Issue 3 3 Features Drinks Are on the Boss: Employer Liability for After-Hours Drinking Alex Wheatley Fisher Phillips

In a recent ruling, Schutz v. La Costita limit in the social-host statute did not III, Inc.,1 the Oregon Supreme Court gave At a minimum, all apply to her supervisor and employer. The employers more reason to worry about Supreme Court agreed, holding that the employees drinking alcohol together, employers should inform statute protects only those who serve a even on an informal, social basis outside person too much alcohol and only when of working hours. The court held that supervisors that even the lawsuit arises out of that person’s employers can be liable in casual, after-hours drinks intoxication.4 Schutz did not allege for an employee’s that her employer and supervisor were injuries that arise out can expose the company negligent in purchasing alcohol for her or of the employee’s serving alcohol to her, which would have consumption of alcohol. (and supervisors) to put them within the statute’s protections. In doing so, the court Rather, she claimed that those two narrowly construed the potential liability. defendants were acting as employer and liability limits of the supervisor and are liable for their conduct teased one employee for wanting to leave “social host” statute,2 in performing those roles, which put them alex wheatley after “only” two beers. Schutz stayed determining that the outside the statute’s protection.5 statute only protects individuals and and continued drinking with the group for After holding that the social-host statute entities acting as a server or social host, several hours and then, while extremely did not apply and, therefore, that the and not in other roles, such as employer. intoxicated, tried to drive herself home. employer and supervisor were not immune On her way home, Schutz mistakenly drove This case opens up a new area of employer from liability, the court remanded the into oncoming traffic on the freeway and liability and should prompt employers case to the trial court to allow Schutz’s crashed into another vehicle. Schutz was to rethink and revise their policies on negligence claims to proceed. While severely injured in the accident (the other employee alcohol consumption. the court did not offer an opinion on the driver was not), breaking over a dozen After-work drinks end in disaster merits of those claims, it did suggest bones including two of her vertebrae. She that the employer and supervisor could The plaintiff, Ashley Schutz, worked for is now quadriplegic. potentially be held liable for organizing Portland-based O’Brien Constructors. Schutz sued the restaurant, her the drinking event in the first place, Over the course of several months, Schutz supervisor, and her employer for pressuring employees to attend, and declined several invitations from her negligence. The trial court dismissed the creating the impression that employee supervisor (the owner’s son) to go out for claims against all three defendants based success might depend on willingness to drinks with a number of other co-workers. on the social-host statute, which makes partake in excessive drinking.6 Eventually, she gave in, alleging that she social hosts immune from liability for felt she had to capitulate if she wanted to What can employers do? injuries arising out of the intoxication of advance in the company. those who voluntarily consume alcohol.3 In light of Schutz, employers should One day, Schutz, her supervisor, and a Schutz appealed. immediately train supervisors about the number of other employees left work early risks associated with after-hours social The court rules that employers are not to have drinks at a nearby bar. According events. It is also a good time to revise protected by the social-host statute to Schutz, her supervisor goaded her policies on best practices for employer- and the others into drinking heavily and On appeal, Schutz argued that the liability sponsored events at which alcohol might continued on next page

4 The VerdictTM ■ 2019–Issue 3 Features employer liability continued from previous page

be served. employee is too inebriated to drive, the resulting from an employee supervisor should order a taxi or ride- At a minimum, all employers should inform voluntarily drinking alcohol during after- share driver at the company’s expense. supervisors that even casual, after- hours social events. This risk is present hours drinks can expose the company Supervisors should also avoid actively even if the event is not officially organized (and supervisors) to potential liability. encouraging employees to drink. No or sanctioned by the employer. Employers supervisor should ever encourage or allow Because of this, employers should warn should immediately take action to supervisors that they are more or less other employees to encourage others to ensure that they have instituted policies always on duty when they attend events over-consume alcohol. regarding employee alcohol use, even where subordinate employees and alcohol Finally, while it may not work for every away from the company’s premises and are present. company, the most effective step an outside of ordinary working hours. Supervisors should monitor employees employer can take to eliminate any at such events for signs of inebriation or possibility of company liability is to forbid Endnotes unprofessional behavior (not a bad idea supervisors from drinking with their 1. 364 Or 536 (2019). 2. ORS 471.565. anyway given the increased likelihood of subordinates. 3. ORS 471.565. harassment-type complaints when alcohol Conclusion 4. 364 Or at 554-55. is involved) and intervene as necessary. The decision in Schutz strongly suggests 5. Id. at 556-57. If the supervisor determines that an that employers are at risk of liability for 6. Id. at 539.

The VerdictTM ■ 2019–Issue 3 5 Features Tips for Renewing Summary Judgment Arguments Before Trial Ryan C. Bailey Deputy City Attorney, Portland City Attorney’s Office

Renewing motions for summary judgment prior to trial is a specialized litigation tool that should not be overlooked by defense counsel. While somewhat uncommon in civil motions practice in Oregon, defense counsel should not be overly pessimistic about the odds for success if they have reasonable grounds to renew a ryan c. bailey legal argument before trial. Moreover, when properly used, such motions can benefit clients even when denied.

This article addresses the authority for renewing summary judgment arguments prohibit motions for reconsideration. pre-assigned to a case, and once assigned before trial in Oregon state courts, Local rules may even expressly recognize there would be little time for either identifies some of the situations where this authority by creating exceptions to counsel or the newly appointed trial judge motions may be appropriate and may accommodate it. For example, Multnomah to manage additional motions practice. successfully dispose of all or portions of a County SLR 5.045 generally prohibits case, and provides tips for improving the Renewed motions for summary judgment motions for reconsideration but explicitly are more likely to be successful in claims odds of success. states that the prohibition shall not or affirmative defenses that turn on The trial court’s authority to consider a “obstruct the authority of the assigned discrete issues of law. For example, an renewed motion for summary judgment trial judge to review any previously-filed affirmative defense of probable cause A trial judge’s authority to hear and decide motions.” to arrest might be a good candidate for renewed legal arguments, including a renewed summary judgment motion in Thus, most legal arguments raised in a renewed motions for summary judgment, a case involving a wrongful arrest claim. summary judgment motion can be raised is inherent and broad. “[T]here is nothing If the motions judge analyzed the issue again once a trial judge is assigned to a in the law of the case idea that prohibits a incorrectly, it is more likely to be a specific case. trial judge from reconsidering a ruling that error and one that is easier to explain the judge made. Also, it does not prohibit When to renew a motion for summary than, for instance, if the judge erred in one judge, in a multi-judge court, from judgment finding sufficient of causation reconsidering a ruling of a colleague.”1 Deciding when to re-raise an issue, to submit a negligence claim to a jury. Importantly, a trial judge’s authority to however, can be a difficult balancing Other examples of legal issues that lend reconsider prior rulings in a case exists of priorities. This is particularly true in themselves to renewed motions practice notwithstanding local rules that generally situations where the trial judge is not include defenses turning on the meaning continued on next page

6 The VerdictTM ■ 2019–Issue 3 Features renewing summary judgment continued from previous page

of a or negotiable instrument has not been pre-assigned, counsel good motion can both correct legal errors or involving statutory immunity. should consider requesting that one be and inform the trial judge. 2 Summary judgment rulings that turn on pre-assigned. Motions in limine raising Conclusion the admissibility of a particular piece arguments denied at the summary A colorable argument alone is not a of evidence are also potentially good judgment stage should generally also particularly good reason to file a renewed candidates. follow these guidelines, but depending on motion for summary judgment. But if a Motions in limine, designed not to dispose the issue can follow the court’s normal significant mistake has occurred, or if of an entire case but to limit the scope of scheduling practice for such motions. the motions judge missed a critical legal a trial or the admissibility of evidence, also The benefits of renewing a motion, even issue, defense counsel and trial judges frequently involve issues previously raised if it is denied should view a renewed motion as an on summary judgment. They present Finally, even if a renewed motion is denied, opportunity to get a case back on the right yet another situation in which summary a well-structured and meritorious motion track. Trial judges have a strong interest judgment issues can be re-litigated. can be beneficial at trial. It puts potential in avoiding errors, and judicial economy favors correcting mistakes before costly Tips for successfully renewing a motion problems with the legal footing of the and time-consuming appeals. for summary judgment case on the trial court’s radar. The motions

typically provide considerably more Endnotes If a decision is made to renew an argument with the trial judge, several drafting issues detailed information about a case than 1 State v. Demings, 116 Or App 394, 396-97, rev den, 315 Or 443 (1993) (citing State ex should be considered. As a general rule, pretrial memoranda and can therefore rel Harmon v. Blanding, 292 Or 752 (1982); educate a trial judge on the issues in the renewed motions for summary judgment Highway Comm. v. Superbilt Mfg. Co., 204 should focus on a single and narrow legal case. The motions can also flag issues Or 393 (1955)). issue. They should be succinct and direct. the defense will raise on directed verdict, 2 See, e.g., Multnomah County SLR 7.055(14) (providing for pre-assignment of preparing the trial judge to rule on a If possible, the motion should articulate a judge in cases estimated to require more particular legal issue. Handled properly, a than four trial days). why the renewed motion is important beyond simply disposing of the particular legal issue in the defendant’s favor. Sometimes, for example, keeping an issue in the case unnecessarily complicates it. Other times, it may create problems for Mediation & the trial judge’s management of the case, Arbitration Services such as the structure of jury instructions or the verdict form. John S. Knowles

Above all else, a renewed motion should Successful Trial Attorney 34 Years not regurgitate the arguments or merely representing Plaintiffs and Defendants direct the trial judge to the summary Pro Tem Circuit Court Judge, State of Oregon judgment record. This is unlikely to be Civil Case Settlement Judge, Washington County either effective or helpful to the trial Arbitration Panel, Washington & Multnomah Counties judge. Litigants stand a better chance of 2017 Professionalism Award, succeeding on a renewed motion if they Washington County Bar Association can explain why the motions judge erred in 20 Years AV Preeminent Peer Review Rating failing to grant it. 503.640-0610 [email protected] Reasonable Rates A renewed summary judgment motion should also be filed promptly once a trial judge is assigned. If a trial judge

The VerdictTM ■ 2019–Issue 3 7 Features Recent U.S. Supreme Court Rulings Impact Oregon Employers That Use Arbitration Agreements Kjersten Turpen K&L Gates LLP

For those of you who follow the United States Supreme Court’s employment-law opinions, you may have noticed the Court has been tackling issues surrounding the enforceability of arbitration agreements between employers and employees in recent years, most recently in Epic Systems Corp. v. Lewis1 and Lamps Plus, Inc. v. Varela.2 But what does this kjersten turpen apparent interest in arbitration agreements have to do with those of us litigating employment cases or advising employers in Oregon? We have ORS 36.620(5), which tells us exactly what makes arbitration clauses in employee-employer relationships enforceable, don’t we? Not exactly. Lamps Plus, Inc. arose out of a cyber on an individual basis. The trial court The recent United States Supreme breach. A hacker tricked a Lamps Plus granted the motion to compel but Court decisions in Epic and Lamps Plus employee into disclosing the personal rejected the request for individual In 2018, the Supreme Court held in Epic financial information of roughly 1,300 arbitration. Lamps Plus appealed the that arbitration agreements in which other employees. Shortly thereafter, order, arguing that, because the parties employees waive the right to pursue a someone pretending to be Frank Varela, did not agree to class arbitration, they class action do not violate the National one of the employees whose information could not be compelled to arbitrate on a Labor Relations Act. This was generally was disclosed in the hack, filed a false class basis. The Ninth Circuit affirmed. seen as a win for employers because federal income tax return. The real Frank In holding that the arbitration could they could prohibit employees from Varela brought state and federal claims proceed on a class-wide basis, the Ninth bringing class action arbitrations by against Lamps Plus on behalf of himself Circuit acknowledged that the Supreme specifically including a waiver in the and a putative class of other employees Court3 has prohibited courts from forcing employee arbitration agreement. in the Central District of California. a party to submit to class arbitration This year, the Supreme Court held in Varela had, however, signed an unless the party agreed to do so. The Lamps Plus that class-wide arbitrations arbitration agreement as a condition court concluded, however, that the will only be allowed in employment of his employment at Lamps Plus, so Lamps Plus agreement was ambiguous cases when the parties have specifically the company moved to compel the on that point, and pursuant to California agreed to allow them. arbitrations of each employee’s claim law, the court construed the ambiguity continued on next page

8 The VerdictTM ■ 2019–Issue 3 Features arbitration agreements continued from previous page

against the drafter, Lamps Plus. notice that agreeing to the arbitration for some employers), they can ask The Supreme Court disagreed. It held provision is a condition of employment employees to agree to modify an existing that, under the Federal Arbitration Act before the employee starts work or the arbitration agreement, notwithstanding agreement was entered into upon a bona (FAA), an ambiguous agreement cannot ORS 36.620(5). provide the necessary “contractual fide advancement of the employee. What basis” for compelling class arbitration. is the interplay between ORS 36.620(5) Endnotes 1 138 S Ct 1612 (2018). Class arbitration, the Court explained, and Lamps Plus? undermines the most important benefits Over the last decade or so, a number 2 139 S Ct 1407 (2019). of traditional individualized arbitration. of federal district court judges have 3 See Stolt-Nielsen S.A. v. AnimalFeeds Int’l Traditional, individualized arbitration ruled that ORS 36.620(5) is preempted offers parties greater efficiency and Corp., 559 US 662 (2010). by the FAA, which preempts state laws speed, lower costs, and the ability to that discriminate against arbitration 4 Bettencourt v. Brookdale Senior Living select an experienced arbiter to resolve agreements by treating them differently Communities, Inc., 2010 US Dist LEXIS the dispute. Class arbitration introduces than other .4 In Lumm v. CC 3436 (D Or 2010); Hermida v. JP Morgan costs and risks for all parties but also Chase Bank, N.A., 2015 US Dist LEXIS Servs,5 a case decided in 2018, the raises due process concerns insofar as 148734 (D Or 2015); Olson v. MBO Oregon Court of Appeals agreed. absent members’ rights are adjudicated Partners, Inc., 2016 US Dist LEXIS 145970 with limited judicial review. At this point, then, it seems safe to (D Or 2016). say that, if employers want to agree to Thus, under Lamps Plus, neither silence 5 Lumm v. CC Servs., 290 Or App 39 (2018); arbitration of claims on a class basis nor ambiguity supports a conclusion that see also Brock v. Copart of Wash., Inc., (class-wide arbitration of wage and hour the parties agreed to forfeit the benefits 2019 US Dist LEXIS 30981 (D Or 2019) of individual arbitration and proceed with claims, for example, may make sense (agreeing with Lumm). arbitration on a class basis.

Upshot for Oregon employers Oregon employers should therefore consider whether they want to arbitrate employee claims on a class basis, and if so, they should update their agreements to include language specifically allowing for class arbitration. Relatedly, attorneys for Oregon employers facing class action arbitrations should be prepared to argue that the parties did not agree to class arbitration unless the agreement at issue specifically allows (or the employer wants) a class-wide arbitration.

How ORS 36.620(5) plays into the issue ORS 36.620(5) provides that a written agreement between an employer and employee is voidable and unenforceable unless the employer gives the employee

The VerdictTM ■ 2019–Issue 3 9 Recent Case Notes

Recent Case Notes Sara Kobak, Schwabe Williamson & Wyatt Case Notes Editor

The defendant moved to reduce the of his employment, his claim against the Damages verdict, arguing that the noneconomic defendant was a third-party claim “subject Statutory damages cap under ors damages should be capped at $500,000 to” various provisions of the workers’ 31.710 does not apply to injuries under ORS 31.710(1). The trial court compensation laws in ORS chapter 656 occurring in the course and scope denied the motion, citing Lakin v. Senco and, therefore, was not subject to the of employment that are subject to Products, Inc., 329 Or 62, 987 P2d 463, statutory cap. workers’ compensation laws modified by, 329 Or 369, 987 P2d 476 On review, the Oregon Supreme Court (1999), in which the Supreme Court agreed with the plaintiff that the damages Oregon Supreme Court watchers who were had held that the statutory cap on cap under ORS 31.710 did not apply hoping for clarity on Oregon’s statutory noneconomic damages, then codified as because the claim was “subject to” damages cap under ORS 31.710 must wait former ORS 18.560(1) (1999), violated the workers’ compensation statutory a little longer. In Vasquez v. Double Press the jury-trial provision of Article I, section scheme. Because of that conclusion, the Mfg., 364 Or 609, 437 P3d 1107 (April 17, of the Oregon Constitution. After Supreme Court did not reach the issue of 4, 2019), the Supreme Court held that one trip through the appellate courts the constitutionality of the noneconomic the plaintiff’s claim was exempt from the and reconsideration in light of Horton v. damages cap in ORS 31.710 as applied limit on noneconomic damages under ORS Oregon Health Sciences Univ., 359 Or 168, to the plaintiff’s damages award. 31.710 under the exception for claims 376 P3d 998 (2016), which overruled Thus, it remains uncertain whether the subject to workers’ compensation laws in Lakin, the Oregon Court of Appeals held damages cap under ORS 31.710 may be ORS chapter 656. that application of the non-economic constitutionally applied in many cases, In Vasquez, the plaintiff was badly damages cap in ORS 31.710(1) would and defense attorneys may wish to injured at work on a piece of equipment violate the remedy clause of Article I, counsel clients about the risk of uncapped manufactured by the defendant. After section 10, of the Oregon Constitution, verdicts. receiving workers’ compensation and it affirmed the trial court on that Submitted by Alice Newlin benefits from his employer’s workers’ alternative ground. Vasquez v. Double Lindsay Hart compensation carrier, the plaintiff Press Mfg., Inc., 288 Or App 503, 406 P3d brought this separate action against 225 (2017). Workers’ the defendant as the manufacturer of Before the Oregon Supreme Court, the the equipment. At trial, the jury returned defendant argued the Court of Appeals Compensation a verdict in the plaintiff’s favor in the had erred in its interpretation of Article Under ors 656.245(1), amount of $2,231,817 in economic I, section 10, and misapplied Horton in “compensable injury” is not limited damages and $8,100,000 in noneconomic holding that the damages cap under ORS to only accepted conditions damages, but found that the plaintiff was 31.710(1) violated the remedy clause 40 percent at fault. In accordance with as applied to this case. In response, The Oregon Supreme Court’s recent the verdict, the trial court reduced the the plaintiff asserted that the Court of decision in Garcia-Solis v. Farmers Ins. Co., plaintiff’s damages award by 40 percent Appeals correctly applied Horton. The 365 Or 26, 441 P3d 573 (May 31, 2019), and entered a judgment with a money plaintiff also argued that, because his addressed the medical services that award of $6,199,090. injury occurred in the course and scope the insurer must provide under Oregon’s continued on next page

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workers’ compensation scheme. Under occurred when the claimant was hit by a psychology referral on the ground that the ORS 656.245(1)(a), an insurer must tent pole that fell in a windstorm while the referral was not causally related to any of provide services to the injured worker claimant was at work. The insurer initially the specific conditions that the insurer “[f]or every compensable injury,” a accepted a number of physical conditions, had accepted, even though the symptoms term that means “an accidental injury including fractures to the left clavicle, were related to the underlying injury. * ** arising out of and in the course of ribs, spinous process, left midshaft On review, the legal question concerned employment requiring medical services clavicle fracture first through third left the meaning of “compensable injury.” or resulting in disability or death[.]” ORS rib fractures, compression fractures, In its decision, the Oregon Court of 656.245 (1)(a), in turn, provides that, “[f] lacerations and contusions. Some time Appeals held that “compensable injury” or every compensable injury, the insurer after the injury, however, the claimant means only “accepted conditions.” * ** shall cause to be provided medical developed psychological symptoms, Before the Oregon Supreme Court, the services for conditions caused in material including panic during windstorms. She claimant challenged that holding and part by the injury * **.” reported those symptoms to her doctor, asserted that “compensable injury” in The claimant in Garcia-Solis suffered an who recommended a “[p]sychology ORS 656.245(1) is not limited to only accidental injury that arose out of and in referral to address PTSD[]like symptoms.” accepted conditions, but refers more the course of her employment. The injury The insurer refused to authorize the generally to the workplace accident that

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created the need for medical treatment. In that caused the medical condition and, (Board) ruling that the claimant had not considering that argument, the Supreme thus, is not limited to only conditions that established “good cause” under ORS Court determined that ORS 656.245(1) the insurer has accepted at the time that 656.256(4)(c) for failing to report his (a) presents a situation where the same medical services are sought. As a result, work-related injury within the 90-day term—“injury”—is used in different ways, insurers now must be prepared to provide period outlined in ORS 656.265. If a work with apparently different meanings, within required services for that broader meaning injury is not reported within the 90-day the same statutory provision. The phrase of “injury” in light of this holding. timeframe, a worker’s compensation “medical services for conditions caused Submitted by Alice Newlin claim is barred unless good cause is * ** by the injury” uses “injury” to mean Lindsay Hart shown. the workplace accident. In contrast, the phrase “for such period as the nature of Workers’ The claimant was a delivery truck driver the injury ** * requires” uses “injury” to for his employer who would lift packages mean the medical condition that resulted Compensation weighing up to 150 pounds. In April 2011, the claimant felt a pull around his left from the accident. Oregon court of appeals holds that testis area while loading a heavy item To give effect to legislative intent and good cause did not exist for injured to resolve that ambiguity surrounding worker who delayed past the 90- into the truck. The claimant assumed the term “injury,” the Oregon Supreme day reporting period for workers’ that it was just soreness from extra Court held that where ORS 656.245(1) compensation claim work. The claimant testified in front of (a) states that for “every compensable an administrative law judge (ALJ) that injury, the insurer * * * shall cause to be In Estrada v. Federal Express Corporation, it became harder to do his work, and provided medical services for conditions 298 Or App 111 (June 12, 2019), the he eventually noticed visible swelling caused in material part by the injury,” the Oregon Court of Appeals affirmed around late July or August 2011. The term “injury” refers to the work accident the Workers’ Compensation Board’s claimant continued to work, but finally

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sought treatment in September 2011. relationship with subsequent symptoms, In October 2011, the claimant was contemporaneous medical evidence diagnosed with an inguinal hernia. The regarding the nature or cause of the claimant subsequently reported the condition, alternative explanations for injury to his employer and filed a workers’ symptoms, self-treatment, the degree compensation claim, but the claim was in which the symptoms restricted the denied. At the subsequent hearing on worker’s on-and-off duty work activities, the claim denial, the claimant argued the worker’s education and occupational that he did not realize he was injured background, and the reasonable reliance until after the 90-day period. The ALJ on legal or medical advice. upheld the employer’s denial of the claim Applying the new standard, the Board for claimant’s failure to report the injury agreed with the ALJ that the claimant within 90 days. not entitled to a proportional reduction had not established good cause. This of his victim’s fault in calculating his On appeal, the Board reversed the ALJ’s decision resulted in the claimant restitution obligations under ORS order, ruling that the claimant’s lack seeking juridical review, raising three 137.106. of knowledge of his injury was good assignments of error including an cause for his failure to provide notice argument that the Board violated the This matter arose out the criminal to his employer within the applicable “law of the case” doctrine by applying conviction of the defendant, who was 90-day period. The employer sought a different legal standard for “good driving under the influence of intoxicants judicial review. The Board’s decision was cause” in its 2017 order than its 2013 when he struck a pedestrian who had reversed and remanded because the order. The claimant also argued that walked onto the road in a dark area that Board’s findings about the work incident the “reasonable worker” standard is was not marked for pedestrian crossing. and the sensations that the claimant unlawful because it is inconsistent with The defendant pleaded guilty to one experienced appeared to be inconsistent statute. The Court rejected all claimant’s count of driving under the influence with the Board’s ultimate finding that the assignments of error, affirming the of intoxicants and one count of third- claimant did not know he was injured. Board’s order. degree , but he resisted the state’s request for restitution of the On remand, to determine whether a Submitted by Kelsey Terry full amount of the victim’s medical worker knew of an accident resulting in Betts Patterson & Mines expenses. The defendant presented injury, the Board articulated an objective evidence that the victim’s own “reasonable worker” standard, stating Comparative Fault negligence was the primary cause of the test as “whether the worker knew of Oregon Supreme Court holds the collision, and he argued that the enough facts to lead a reasonable worker defense of civil comparative fault trial court should apply the civil doctrine to conclude that workers’ compensation unavailable to defendant who pled of comparative fault to reduce the liability was a reasonable possibility guilty to third-degree assault in proposed restitution. The trial court and that notice to the employer was calculating restitution obligations declined to apply the comparative-fault appropriate.” In applying this standard, doctrine and ordered the defendant to the Board stated that it would consider In State v. Gutierrez-Medina, 365 Or 79, pay the requested restitution for the the worker’s credible testimony 442 P3d 183 (June 6, 2019), the Oregon victim’s medical expenses. regarding such knowledge, as well as the Supreme Court held that a defendant’s circumstances supporting the worker’s conviction for third-degree assault would The defendant appealed. On appeal, the understanding. Those circumstances render the doctrine of comparative fault Oregon Court of Appeals affirmed the may include the nature of the work unavailable in a hypothetical civil action trial court’s ruling on the basis that the accident and subsequent symptoms, the for the same injury giving rise to the restitution statute expressly precludes worker’s understanding of the accident’s conviction. Therefore, the defendant was the court from applying the comparative- continued on next page

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fault doctrine. The Oregon Supreme In determining whether the trial court a hypothetical civil action against the Court allowed review and affirmed the erred in rejecting the defendant’s defendant for the same injury, would decision of the Court of Appeals on a argument against full restitution, the the defense of comparative fault be different ground. Supreme Court posited the question: In available to him to reduce his liability? The Supreme Court determined that the answer to that question was “no.”

The Supreme Court explained that under Oregon law, the statutory defense of civil comparative fault is available only to defendants who act with a degree of Now Mediating culpability for which the common-law defense of Statewide... would have been available. As such, Judge Karsten H. Rasmussen the defense of comparative fault is not Senior Judge and Mediator available to a defendant who acted with a culpability greater than what considered “,” that is, conduct that was either “wanton” or intentional.

Applying that rule, the Supreme Court determined that the defendant’s conviction for third-degree assault established that he acted with a mental state that is more culpable than “gross negligence.” In particular, the guilty plea was an admission of “wanton misconduct.” Thus, in a hypothetical civil Providing Mediation Services action, the defendant could not have availed himself to a reduction utilizing throughout Oregon the civil comparative-fault scheme. Personal Injury • Construction Disputes Having concluded that the defense Insurance Coverage • Commercial Law • High Asset would be unavailable to a defendant in Domestic Relations • Employment Disputes a hypothetical civil action for the same injury, the Supreme Court declined to Medical • address the Court of Appeals’ conclusion Claims Against Public Bodies that ORS 137.106 precludes trial courts from reducing the amount of restitution Call Today: 541-521-1997 when the victim is partly at fault for the injury.

A dissent was included with the opinion. www.KHRmediation.com The dissent disagreed that reckless and wantonness involved the same culpable continued on next page

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mental state because the degree of risk for each was different, with recklessness being a substantial risk and wantonness being a highly probable risk. Accordingly, the dissent disagreed whether the comparative-fault defense would have been available to the defendant under the facts of the case. Submitted by Andrew Gust Betts Patterson & Mines Insurance Coverage Oregon Court of Appeals interprets terms of insurance in context of the provisions as whole

In Summit Real Mgmt., LLC v. Mid-Century Ins. Co., 298 Or App 164 (June 19, 2019), the Oregon Court of Appeals affirmed the trial court’s grant of summary judgment in favor of the of the insurer. Both the trial court and This analysis is useful to responding to insurer, holding that the “prior insurance” the appellate court agreed that the “prior arguments by insureds who try to drum provision limited the number of policy insurance” provision limited the number up an ambiguity by looking at just a part periods that could be triggered by of policy periods that could be triggered of the policy. by the embezzlement. employee embezzlement. The court also rejected, as a matter of The case involved an insured’s claim for The case also included discussion of law, the insured’s argument that the coverage for employee embezzlement. several other issues of broader interest. insurance agent’s representations about First, the Court of Appeals discussed The insured had been covered for coverage estopped the insurer from ORS 742.246(2), which is the statute employee dishonesty during many denying coverage. The court reiterated requiring “[a]ny provision restricting consecutive policy periods. The that an agent’s general statements or abridging the rights of the insured embezzlement lasted for many years, about coverage do not amount to and the insured argued that each policy under the policy [to be] preceded by a specific, binding representations. covered whatever embezzlement sufficiently explanatory title printed or occurred while the policy was in force, written in type not smaller than eight Finally, the court rejected the insured’s regardless of when the embezzlement point capital letters.” The court held that argument that its claim-preparation was discovered. The insurer this statute is limited to “standard fire expenses, such has having an audit contended that the “prior insurance” insurance policies” and did not apply to of its financial records, were “direct provision limited the number of policy the defendant’s policy. loss” caused by the embezzlement. periods implicated by the long-term The court’s coverage analysis also relied The court ruled those expenses were embezzlement. on the principle that coverage must be consequential losses and were not The coverage analysis turned on evaluated by looking at all provisions in covered because the policy covered only interpretation of the “prior insurance” context. Applying that rule, the court “direct loss” from employee dishonesty. provision, with the Court of Appeals rejected the insured’s attempt to focus Submitted by Jackie Mitchson affirming the trial court’s ruling in favor on just a few select words in the policy. Bullivant Houser Bailey

The VerdictTM ■ 2019–Issue 3 15 Petitions forFor Review Review Petitions For Review Sara Kobak, Schwabe Williamson & Wyatt Case Notes Editor

The following is a brief summary of cases for which petitions for review have been granted by 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.

Citizens for Responsible of factors including the ‘public need for to the state based on the Court of Development in The Dalles v. the proposed fill or removal and the social, Appeals’ conclusion that the public-trust Wal-Mart Stores, Inc., S066596, economic, or other public benefits likely doctrine does not impose a fiduciary A158346, Or App , P3d (2018). to result from the proposed fill or removal,’ obligation on the state to take affirmative Argument scheduled for December require DSL to find that the public need action to protect public-trust resources 14, 2019. for a project predominates over the harm from the effects of climate change. On to waters of the state before issuing a review, the issues are: “(1) Does the In its decision, the Oregon Court of removal-fill permit?” public trust doctrine, which applies to Appeals concluded that the Department natural resources in which the public has of State Lands (DSL) lacked authority to Chernaik v. Kate Brown, S066564, an interest, include protection of the issue a wetland removal-and-fill permit A159826. Argument scheduled for state’s natural resources in addition to for the project at issue because DSL had November 13, 2019. submerged and submersible lands?”; and not made an affirmative finding that the (2) “Does the common law public trust project would serve a public need. On In this action for declaratory and equitable doctrine impose a fiduciary duty upon the review, the issue is: “Does ORS 196.825, relief, the Court of Appeals affirmed the state to protect trust resources from the which requires DSL to ‘consider’ a number trial court’s grant of summary judgment negative impacts of climate change?”

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16 The VerdictTM ■ 2019–Issue 3 2020 Annual Convention

Oregon Association of Defense Counsel Annual Convention June 18-21, 2020 | Sunriver Resort | Sunriver, Oregon

Mark your calendars to attend the 2020 convention in Sunriver! The convention is going to be a weekend full of exciting activities and education at Sunriver Resort! The convention will feature outstanding CLE credit, social/networking activities and more. Mark your calendars now and plan to attend!

Convention Registration: reservations, that relationship and • Use of Sunriver’s new pool, The Information and registration is avail- future OADC conventions are at risk. Cove. The Cove features a large able on the website www.oadc.com. Please support OADC and make your pool area with zero entry design, Lodging at Sunriver Resort: Start reservations through Sunriver Resort hot tub, spacious deck and lawn your planning now by booking your in 2020! areas, water slide, kid’s discovery OADC discounted lodging through We encourage you to take advantage area, nature trails, improved Sunriver Resort today. Call the of the OADC group lodging rates at food and beverage services, and resort directly at 800.547.3922 to Sunriver Resort—their guest rooms private cabanas. make your reservations and when and homes offer unparalleled service • Access to Sage Springs Club & speaking with a reservation agent, and amenities, including: Spa. ask for OADC’s Annual Convention • Sunriver Resort’s guest • Guaranteed advanced tee times room block. For more information on rooms and suites offer the at Sunriver’s golf courses. what Sunriver Resort has to offer, utmost in comfort and Pacific visit their website at www.sunriver- • Access to Crosswater golf Northwest style and quality course, golf shop, and The Grille. resort.com. with spectacular views, cozy Why Book Your Lodging Through fireplaces, private decks, and • Complimentary Resort-wide Sunriver Resort? By making your WiFi access. Pet-friendly lodging transportation service. reservations through Sunriver is also available. Sunriver also • 24-hour service and registration. Resort, OADC is able to maintain a offers the finest selection of • The largest selection of premiere strong partnership with the Resort vacation rental properties in homes and condominiums and continue to hold our conventions Central Oregon, including luxury throughout Sunriver. in beautiful Sunriver, Oregon. If we do homes and Caldera Springs not meet our commitment on lodging Cabins.

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Questions? Contact OADC at [email protected] or 503.253.0527 or 800.461.6687

The VerdictTM ■ 2019–Issue 3 17 Defense VictoryVictory!

Defense Victory! Eric E. Meyer, The Law Offices of Julie D. Elkins Defense Victory! Editor (Contributing authors Elana Charles, Michael Jacobs, and Daniel Larsen)

Dismissal / Claim For Alleged Hipaa Violation On June 24, 2019, Stephanie Kucera of Hart Wagner obtained dismissal of plaintiff’s claims related to alleged unauthorized disclosure of protected health information, specifically lab results, from Deschutes County Circuit Court Judge Bethany Flint in O’Connell v. Mountain Medical Group, LLC, Case No. 19CV04804. Plaintiff was represented by Ryan Kaiser of Broken Top Law. Plaintiff alleged that defendant clinic performed unauthorized lab testing and wrongfully disclosed the results. Plaintiff filed claims for negligence per se, common law negligence, and breach of confidence. Citing ORS § 192.553, plaintiff alleged a private right of action for alleged the breach of confidence claim, but noted Department, alleged that defendant, a unauthorized testing and disclosure of the that “ultimately the issue of damages coordinated care organization, violated positive result. is fatal” under Oregon’s Economic Loss ORS 659A.030(1)(g) by aiding and Defendant moved to dismiss, arguing: Doctrine. abetting discrimination and/or retaliation by the County even though defendant was 1) No private right of action exists for Dismissal/Claims Not violation of HIPAA or ORS Chapter 192, per neither the employer nor co-employee of ORS § 192.571; Applicable Outside plaintiff. 2) Even if such a private right of action Employer-Employee Defendant moved to dismiss on the basis did exist, plaintiff’s claims were barred by that ORS 659A.030(1)(g) applies only to Oregon’s Economic Loss Doctrine; Relationship employers and employees. In response, 3) Disclosure was authorized by court On April 17, 2019 Dan Larsen and plaintiff argued that ORS 659A.030(1) order; Alex Shulman of Ater Wynne obtained (g) should apply to “any person,” not just dismissal on behalf of defendant from an employer and employee, because 4) ORS § 192.558 precludes recovery; and Tillamook County Circuit Court Judge the 1949 version of the statute (before 5) Plaintiff failed to state a claim for Jonathan Hill in Miller v. Tillamook County codification in the ORS) included breach of confidence. Health Department, et al., Case No. the italicized phrase “employer or an The Court dismissed the negligence and 18CV59146. Plaintiff was represented employee, or not,” which plaintiff argued negligence per se claims without leave to by Scott N. Hunt. Plaintiff, a former showed legislative intent to include replead. The Court allowed amendment on employee of the Tillamook County Health persons outside of employment. continued on next page

18 The VerdictTM ■ 2019–Issue 3 DefenseDefense Victory! Victory

Defense Victory! continued from previous page

The court granted defendant’s motion of Jeffrey Parker, et al. v. Stuart Cohen, et that Oregon does not recognize loss by relying on federal and state court al., Case No. 17CV20743. Plaintiffs were of chance theory in legal malpractice decisions that applied the State v. Gaines represented by Mark McCulloch, Margot claims, and accordingly ruled that while statutory interpretation analysis in finding Seitz, and Trish Walsh of Farleigh Wada “all of Plaintiffs’ claims may proceed in that ORS 659A.030(1)(g) as currently Witt. this case … Plaintiffs will be prevented written (without “or not”) unambiguously This action for professional negligence from presenting a ‘diminished settlement applies only to employers and employees. concerned an allegedly ambiguous value’ causation theory” and “may prove Ruling for Defense / No agreement. Plaintiffs sought over $111.3 causation only by establishing that they million in damages, a substantial portion would have won on claims or defenses at “Loss of Chance” in Legal of which was based on the theory that the trial” but for the alleged negligence. Malpractice Claim agreement at issue had weakened their This ruling altered the course of the claims in prior litigation and diminished the On April 1, 2019 Thomas McDermott and litigation, and substantially reduced settlement value. Akeem Williams of Lindsay Hart received the value of plaintiff’s claims, as they a strongly favorable ruling on behalf of Judge Souede’s ruling was not a “victory” were significantly reliant on the “loss defendants Cohen and Landye Bennett in the traditional sense: he actually denied of chance” theory. Shortly afterward, Blumstein from Multnomah County Circuit defendants’ motion, finding that issues plaintiffs filed a Third Amended Complaint Court Judge Benjamin Souede pursuant of fact precluded summary judgment. reducing their prayer by more than half, to to their Motion for Partial Summary It was a victory nonetheless, however, $53.9 million, and this ruling enabled the Judgment in the legal malpractice case as he accepted defendants’ argument parties to reach a settlement.

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The VerdictTM ■ 2019–Issue 3 19 Scribe’sThe Scribes Tips Tips for Better Writing

The Scribe’s Tips for Better Writing Dan Lindahl Bullivant Houser Bailey

We’re familiar with the conventional motions and memoranda we commonly see, such as a motion for summary judgment, motion to dismiss, or memorandum in support of a motion for a new trial. But from time to time, we come across a motion or memorandum Dan Lindahl that is, shall we say, out of the ordinary. Let’s explore some of those. Motion for a Fist Fight

This one comes from the rough-and- strategy was to file a “motion for a fist were necessary to settle any part of this tumble state of Montana, where fight.” The motion requested an order matter by means of a physical contest, (apparently) some counsel believe things compelling the prosecutors to engage in a ancient methods of trial by fire, water and are best settled with fisticuffs. Here’s fist fight with defense counsel. The motion the like no longer have any place in our what happened. (in somewhat garbled prose) explained system of justice.” Jesse Mauher stabbed another man to that it sought to give the prosecutors “a The motion was, presumably, denied. death. As often happens in the wake of chance to stand up for the principle they Notice To F*ck This Court and Everything such an event, Mauher was charged with stand up for, i.e., the brutal humiliation it Stands For a crime. and beating up of weaker human beings is A federal case in the Northern District The criminal defendant’s attorney was the most cherished principle in life.” The of Georgia spawned this one. After the quite perturbed about the prosecution motion promised that the prosecutors judge issued an order dismissing the because, the defense contended, the would not suffer too badly because a plaintiffs’ lawsuit, the plaintiffs (acting stabbing had occurred when Mauher “group of defense attorney’s drunk and pro se) filed their “Notice to F*ck This stoned friends will be there to assure [the protected himself against the larger, Court and Everything it Stands For.” The prosecutors’] safety.” more aggressive attacker. The defense memorandum suggested the judge should attorney saw the prosecution as another The State of Montana, unsurprisingly, not “ever again in your mother*cking life instance of a bully—this time, the State of opposed the motion, explaining “[w]hile attempt to disrespect me, my family, or Montana—harassing his client. counsel for the State are confident they our status again…you old, IMPOTENT Defense counsel decided the best could acquit themselves respectably if it geezer.” The memorandum goes on in that continued on next page

20 The VerdictTM ■ 2019–Issue 3 The Scribes Tips for BetterScribe’s Writing Tips scribe’s tips continued from previous page

profane vein. Anyone interested in reading the original can find it here: Clark v. Porter, No. 1:14-CV-02128-WBH (N.D. Geo., April 15, 2015). Hard-Boiled Egg in Support of Motion for Preliminary Injunction Finally, there’s the strange case of the hard-boiled egg. The plaintiff (again acting pro se) moved for a preliminary injunction. Nothing too odd about that. But the plaintiff supported his motion by filing a hard-boiled egg. The judge responded with this Dr. Seussian rhyme, which you can find at Wolff v. New Hampshire Dept. of Corrections, 2007 WL 2788610 (D.N.H. 2007): No fan I am Of the egg at hand. Just like no ham On the kosher plan. This egg will rot I kid you not. And stink it can This egg at hand. There will be no eggs at court To prove a clog in your aort. There will be no eggs accepted. Objections all will be rejected. From this day forth This court will ban hard-boiled eggs of any brand. And if you should not understand The meaning of the ban at hand Then you should contact either Dan, the Deputy Clerk, or my clerk Jan. I do not like eggs in the file. I do not like them in any style. I will not take them fried or boiled. I will not take them poached or broiled. I will not take them soft or scrambled Despite an argument well-rambled. No fan I am Of the egg at hand. Destroy that egg! Today! Today! Today I say! Without delay!

The VerdictTM ■ 2019–Issue 3 21 Legislative Update

Legislative Update Rocky Dallum, Tonkon Torp OADC Lobbyist

With the return of Fall, the legislative Judicial appointments made headlines process is churning back into action. throughout September following the OADC is actively engaging in planning for fallout from Oregon’s public records upcoming sessions, czar’s resignation. Several weeks prior, monitoring legislative Governor Brown appointed her general proceedings, and counsel to a recent opening on the Court communicating with of Appeals. After several news cycles of other legal practice headlines about process, transparency, stakeholders on issues and the Governor’s office involvement ranging from court with Public Records Advisory Council Rocky Dallum resources to upcoming recommendations, her appointee, Misha legislation. Recent political headlines also Izaak, withdrew his name. Concurrently, have some impact on the issues OADC the Governor announced her intention to membership has expressed interest in. follow a more open, inclusive appointment process going forward. OADC members In mid-September, OADC joined have expressed concerns over the judicial Oregon Judicial Department staff and appointment process in the past several representatives from the Oregon State years, and hopefully this will signal a more Bar, Oregon Trial Lawyers Association, inclusive process going forward. and several other organizations and companies for a focus group on Finally, speculation concerning a special improving Oregon’s court system. session loomed in the final weeks of The discussion was managed by an September also brought the first round August and moving towards legislative independent facilitator and focused on of “legislative days,” the Legislature’s days. Several stakeholders want to various challenges for civil practitioners. quarterly interim meetings and committee clarify Oregon’s new law regarding death Consistent with OADC’s longstanding hearings. OADC typically monitors a sentences. However, Governor Brown advocacy priorities, we emphasized the handful of committees with issues announced on September 18th that need for a well-funded court system germane to civil practice. The House and there would be no special session, as and qualified bench, not just to serve Senate Judiciary Committees both filled stakeholders and other policy makers litigants but to advance the greater goal their agendas with topics. The were unable to develop consensus over of ensuring access to justice for both the two business and labor committees often clarification and the original intent of SB civil and criminal systems. Specifically, take up issues related to OADC’s various 1013. practice groups including employment we joined others in encouraging a Legislators will meet again just before the law and insurance practices. Most predictable trial docket, moving cases Thanksgiving holiday for another round of notably, Labor Commissioner Val Hoyle forward consistently and with opportunity legislative hearings. That week will give a provided an update from the Bureau of for settlement, and courthouses that clearer picture of issues for consideration Labor and Industries. The informational accommodate the legal system. The in 2020. Requests to draft legislation for hearings conducted in the fall are often discussion closed with strategy on 2020 will be due to legislative counsel at an indication of legislation that will be how better to advocate collectively for the end of that week. It also would present introduced the following year. adequate resources for Oregon’s courts. another opportunity for a special session.

22 The VerdictTM ■ 2019–Issue 3 Judge’s Biography

Honorable Heidi Moawad Multnomah County Circuit Court

A biography

I recently went to the Multnomah County that by doing so, she can ensure greater courthouse, walking by memory to the and more equal access to justice for all fifth floor chambers which were, until Oregonians. recently, occupied by Judge John A. If Judge Moawad could go back to the Wittmayer. On this visit, however, I had beginning of her legal career in 1999, her the pleasure of meeting with one of advice to her former self after 20 years Multnomah County’s newest judges, the in the profession would be to better Honorable Heidi Moawad, who first took understand where the people she was the bench on April 29, 2019. prosecuting were coming from. More Judge Moawad obtained her bachelor’s generally, she advised that most young degree at Whittier College in California attorneys, on all sides of cases, should and her J.D. from the University of shooting in 2015. She even spent three realize the bigger picture their cases are Oregon. During law school, she spent a weeks in Burns during the occupation of a part of, and she would encourage them summer as a certified law student at the the Malheur National Wildlife Refuge. to be reasonable in their approaches to issues and to pick their battles Multnomah County District Attorneys Judge Moawad’s path to the bench is judiciously. Office. She later joined that office, reflective of a life spent in public service, spending the next 14 years prosecuting encompassing a diversity of experience Judge Moawad observed that her past and trying all variety of cases, from that few jurists bring to the judiciary, due experience has been much greater in the misdemeanors to homicides, from to her time spent in multiple roles within criminal side of the bar than the civil, but gang cases to child sex cases, the executive and legislative branches hopes that her past experiences within and for one year worked solely on the prior to joining the bench. the district attorney’s office, as well investigation into the disappearance of as her efforts in the governor’s office During Judge Moawad’s first month on Kyron Horman. In 2005, she took a leave toward criminal justice reform efforts, the bench, she has had week-to-week of absence from the office and spent will be of benefit to her fellow members assignments, sitting in arraignment, nine months as counsel to the Judiciary of the bench. She is also looking forward FED, small claims and traffic courts. In Committee at the legislature. to becoming better acquainted with the this short time she identified one of the civil bar in the future and is honored that In 2013, Judge Moawad transitioned biggest challenges for a judge is being Governor Brown has placed faith in her from her prosecutor position to serving able to make sure everyone before the with this opportunity to serve the people as Public Safety and Policy Advisor to court feels heard but realizing that, in of Multnomah County. former Governor John Kitzhaber and the end, someone isn’t going to be happy current Governor Kate Brown. In this role, and as a judge you have to come to As I have known Judge Moawad for Judge Moawad worked on current policy terms with that. She feels it is important roughly half of her career thus far, I and legislative issues, such as criminal for a judge to think about the person can attest that her dedication to doing justice reform and firearm safety, but in front of her, where they are coming justice—not just the concept of, but the also was involved in direct response with from, and to take the person as they are act of—will serve the bar and all parties the governor to such tragedies as the while questioning one’s own internal who come before her for years to come. Reynolds High School shooting in 2014 assumptions so those can be recognized — Submitted by Joel C. Petersen, and the Umpqua Community College and addressed if necessary. She feels Hodgkinson Street Mepham

The VerdictTM ■ 2019–Issue 3 23 2019Judge’s Annual Biography Conference 2019 Annual Conference Highlights

Speaker Christine Sargent and Past President Bob Barton

Board member Katie Smith introduces panel of speakers Kim Hoyt, David Miller and Mark Bocci

Board member John Pollino addresses attendees

Incoming President Lloyd Bernstein and Ryan Bailey

Blake Fry, Sarah Pozzi, Helaina Chin, and Past President Vicki Smith

President George Pitcher

24 The VerdictTM ■ 2019–Issue 3 2019 AnnualJudge’s Conference Biography 2019 Annual Conference Highlights

Katie Smith and Shane Fitzpatrick

Casino night with (clockwise from left) Board Member Heather Bowman, Jamie Azevedo, Vicki Smith, Sarah Pozzi, and Helaina Chin.

Award to Vicki Smith for service as Past President by George Pitcher

Lightning round with New Lawyers group Student attendees Sarah Anderson and Cristal Jones (sponsored by Bullivant Houser Bailey and Garrett Hemann Robertson through OADC’s Inaugural Diversity Scholarship Program)

The VerdictTM ■ 2019–Issue 3 25 Association News Association News

New and returning Members OADC Past Presidents

OADC welcomes the following new and returning members to the association: Vicki Smith...... 2018 Mary-Anne Rayburn...... 2017 Dylan Becker Bradley Hill Michael Lehner...... 2016 Jordan Ramis Glascock Street Waxler Gordon Welborn...... 2015 Dan Schanz...... 2014 David Campbell Kevin Sampson Michael (Sam) Sandmire...... 2013 Lewis Brisbois Bisgaard & Smith Douglas Foley & Associates Greg Lusby...... 2012 Jeanne Loftis...... 2011 Anna Esfeld Jack Scholz Drake Hood...... 2010 Preg O’Donnell & Gillett Hart Wagner Julie Elkins...... 2009 Bill Sime...... 2008 Y. Moin Ghadimi Micah Steinhilb Chris Kitchel...... 2007 Robert Barton...... 2006 Progressive Insurance Forsberg & Umlauf Hon. Mark Clarke...... 2005 Martha Hodgkinson...... 2004 James Edmonds...... 2003 Stephen Rickles...... 2002 Calendar Steven Blackhurst...... 2001 Jonathan Hoffman...... 2000 November 15, 2019 Chrys Martin...... 1999 OADC 2019 fall seminar Thomas H. Tongue...... 1998 Paul Fortino...... 1997 The Benson Hotel | Portland, Oregon Larry A. Brisbee...... 1996 Join us! — Register at www.oadc.com Frank E. Lagesen...... 1995 Robert E. Maloney, Jr...... 1994 Keith J. Bauer...... 1993 Michael C. McClinton...... 1992 Ronald E. Bailey...... 1991 John H. Holmes...... 1990 John Hart...... 1989 Carl Burnham, Jr...... 1988 James H. Gidley ...... 1987 Ralph C. Spooner...... 1986 G. Marts Acker...... 1985 James L. Knoll...... 1984 Walter H. Sweek...... 1983 James F. Spiekerman...... 1982 Hon. Malcolm F. Marsh...... 1981 Austin W. Crowe, Jr...... 1980 Richard E. Bodyfelt...... 1979 Robert T. Mautz...... 1978 Douglas G. Houser...... 1977 Hon. Rodney W. Miller...... 1976 David C. Landis...... 1975 William V. Deatherage...... 1974 Frederic D. Canning...... 1973 Wayne Hilliard...... 1972 Roland (Jerry) F. Banks...... 1971 Jarvis B. Black...... 1970 Thomas E. Cooney...... 1969 James B. O’Hanlon...... 1968 Hon. Robert Paul Jones...... 1967

26 The VerdictTM ■ 2019–Issue 3 The VerdictTM Editors

EDITOR IN CHIEF Jeanne Loftis Bullivant Houser Bailey The Oregon Association of Defense Counsel 888 SW 5th Ave., #300 Portland, OR 97204 State Political Action Committee (PAC) 503/499-4601 The Voice of the Civil Defense Lawyer [email protected] The Oregon Association of Defense Counsel works to Feature Articles Editor Julie Smith protect the interests of its members before the Oregon Cosgrave Vergeer Kester legislature, with a focus on: 900 SW 5th Ave., 24th Floor Portland OR 97209 • Changes in civil • The judiciary and 503/219-3821 [email protected] practice and the trial court funding court system CASE NOTES EDITOR • Access to justice Sara Kobak Schwabe Williamson & Wyatt 1211 SW 5th Ave., #1900 Portland OR 97204 503/796-3735 [email protected]

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