the verdict - oadc · letters, and pleadings were first drafted (i.e., handwritten), then dictated...

TMTHE

VERDICT

Positioning your client for imminent business litigation

statutory Jobsite liability

employment law: The Trump effect

Judicial settlement conferences

Oregon Associationof Defense Counsel

Trial Lawyers Defending Youin the Courts of Oregon

2017 • Issue 2

The VerdicTTM n 2017–issue 2

2017 OADC Practice Group Leaders

tranSPortation

alan Galloway, ChairDavis Wright Tremaine LLP1300 SW Fifth Ave., #2400Portland, OR 97201503/[email protected]

Patrick rowe, Vice ChairSussman Shank LLP1000 SW Broadway, #1400Portland, OR 97205503/[email protected]

chad colton, PublicationsMarkowitz Herbold PC1211 SW 5th Ave., #3000Portland, OR 97204503/[email protected]

anne talcott, Board LiaisonSchwabe Williamson1211 SW 5th Ave., #1500Portland, OR 97204503/[email protected]

coVeraGe eMPLoyMent

neW LaWyerS Product LiabiLity ProFeSSionaL LiabiLity

heather bowman, ChairBodyfelt Mount319 SW Washington St., #1200Portland, OR 97204503/[email protected]

Peter tuenge, Vice ChairKeating Jones Hughes PC1 SW Columbia Street, #800Portland, OR 97258503/[email protected]

donna Lee, PublicationsHart Wagner LLP1000 SW Broadway, #200Portland, OR 97205503/499-4499 Ext. [email protected]

Grant Stockton, Board LiaisonBrisbee & Stockton LLCPO Box 567Hillsboro, OR 97123503/[email protected]

triaL Practice

GoVernMent LiabiLityconStruction

allen eraut, ChairRizzo Mattingly Bosworth PC1300 SW 6th Ave., #330Portland, OR 97201503/[email protected]

christine reinert, Vice ChairMacMillan, Scholz and Marks900 SW 5th Ave., #1800Portland, OR 97204503/[email protected]

Jamison Mccune, PublicationsBodyfelt Mount319 SW Washington St., #1200Portland, OR 97204503/[email protected]

katie Smith, Board LiaisonHenrie & Smith LLP15455 NW Greenbrier Pkwy, #125Beaverton, OR 97006503/[email protected]

coMMerciaL

Stacy tela-kerber, ChairElkins Zipse & Mitchell4380 SW Macadam Ave., #350Portland, OR 97239503/[email protected]

Greg Lockwood, Vice ChairGordon Rees Scully Mansukhani LLP121 SW Morrison St., #1575Portland, OR 97204503/[email protected]

katie eichner, Board LiaisonLindsay Hart LLP1300 SW 5th Ave., #3400Portland, OR 97201503/[email protected]

tessan Wess, ChairChock Barhoum LLP121 SW Morrison St., #415Portland, OR 97204503/[email protected]

kirsten curtis, PublicationsThenell Law Group12909 SW 68th Pkway., #320Portland, OR 97223503/[email protected]

Lloyd bernstein, Board LiaisonBullivant Houser Bailer PC888 SW Fifth Ave., #300Portland, OR 97204503/[email protected]

brenda baumgart, ChairStoel Rives LLP760 SW 9th Ave., #3000Portland, OR 97205503/[email protected]

colin Geiger, Vice ChairTonkon Torp LLP888 SW 5th Ave., #1600Portland, OR 97204503/[email protected]

kjersten turpen, PublicationsGordon & Rees LLP121 SW Morrison St., #1575Portland, OR 97204503/[email protected]

allyson krueger, Board LiaisonDunn Carney851 SW 6th Ave., #1500Portland, OR 97204503/[email protected]

Megan cook, ChairBullivant Houser Bailey PC888 SW 5th Ave., #300Portland, OR 97204503/[email protected]

Jason Poss, Vice ChairHart Wagner LLP1000 SW Broadway #2000Portland, OR 97205503/[email protected]

Jessica Wilcox, PublicationsSmith Freed & Eberhard, PC111 SW 5th Ave., #4300Portland, OR 97204503/[email protected]

George Pitcher, Board LiaisonLewis Brisbois Bisgaard & Smith LLP888 SW 5th Ave., #600Portland, OR 97204971/[email protected]

nicholas kampars, ChairDavis Wright Tremaine LLP1300 SW Fifth Ave., #2400Portland, OR 97201503/[email protected]

nicholas Wheeler, Vice ChairCosgrave Vergeer Kester LLP888 SW Fifth Ave., #500Portland, OR 97204503/[email protected]

brandon Stuber, PublicationsDavis Rothwell Earle & Xóchihua200 SW Market St., #1800Portland, OR 97201503/[email protected]

elizabeth Lampson, Board LiaisonDavis Rothwell Earle & Xóchihua200 SW Market St., #1800Portland, OR 97201503/[email protected]

timothy heinson, ChairHeinson & DeDobbelaere LLC9200 SE Sunnybrook Blvd., #335Clackamas, OR 97015503/[email protected]

Laura taylor, Vice ChairBullivant Houser Bailey PC888 SW 5th Ave., #300Portland, OR 97204503/[email protected]

Patrick Wylie, PublicationsDavis Rothwell Earle & Xóchihua200 SW Market St., #1800Portland, OR 97201503/[email protected]

John Pollino, Board LiaisonGarrett Hemann Robertson PC1011 Commercial St. NEPortland, OR 97301503/[email protected]

christopher bell, ChairDeschutes County Legal Counsel1300 NW Wall St., #200Bend, OR 97701541/[email protected]

david Landrum, Vice ChairPortland City Attorney’s Office1221 SW 4th Ave., #430Portland, OR 97204503/[email protected]

blake Fry, PublicationsMersereau Shannon LLP1 SW Columbia St., #1600Portland, OR 97258503/[email protected]

karen Vickers, Board LiaisonMersereau Shannon LLP1 SW Columbia St., #1600Portland, OR 97258503/[email protected]

OADC BOARD OF DIRECTORSOFFICERS

Mary-anne rayburnPresidentGordon & Polscer LLP9755 SW Barnes Road, Suite 650Portland, OR 97225Phone: 503/242-2922Email: [email protected]

Vicki SMithPresident ElectBodyfelt Mount319 SW Washington St., #1200Portland, OR 97204Phone: 503/243-1022Email: [email protected]

GeorGe PitcherLewis Brisbois Bisgaard & Smith LLP888 SW 5th Ave., #600Portland, OR 97204Phone: 971/712-2803Email: [email protected]

DIRECTORS

LLoyd bernSteinBullivant Houser Bailey PC888 SW Fifth Ave., #300Portland, OR 97204Phone: 503/228-6351Email: [email protected]

katie eichnerLindsay Hart LLP1300 SW 5th Ave., #3400Portland, OR 97201Phone: 503/226-7677Email: [email protected]

aLLySon krueGerDunn Carney851 SW 6th Ave., #1500Portland, OR 97204Phone: 503/224-6440Email: [email protected]

eLizabeth LaMPSonDavis Rothwell Earle & Xóchihua200 SW Market St., #1800Portland, OR 97201Phone: 503/222-4422Email: [email protected]

John PoLLinoGarrett, Hemann, Robertson PC1011 Commercial St. NESalem, OR 97301Phone: 503/581-1501Email: [email protected]

katie SMithHenrie & Smith LLP15455 NW Greenbrier Pkwy, #125Beaverton, OR 97006Phone: 503/593-8548Email: [email protected]

Grant StocktonBrisbee & Stockton LLCPO Box 567Hillsboro, OR 97123Phone: 503/648-6677Email: [email protected]

anne taLcottSchwabe Williamson1211 SW 5th Ave. #1500-2000Portland, OR 97204Phone: 503/796-2991Email: [email protected]

karen VickerSMersereau Shannon LLP1 SW Columbia, #1600Portland, OR 97258Phone: 503/226-6400Email: [email protected]

ADMINISTRATIVE OFFICE

Sandra FiSher, cae147 SE 102nd

Portland, OR 97216503/253-0527 • 503/253-9172 (fax)800/461-6687 • [email protected]

The VerdictTM

Cover photo courtesy of Dan Lindahl

F E A T U R E S

12

8

6

4

D E P A R T M E N T S

When Things Are AbouT To hiT The FAn, MAke sure To PoinT iT AWAy FroM your FAce—TiPs For PosiTioning your clienT For iMMinenT business liTigATionChad M. Colton, Markowitz Herbold PC

A TAle oF TWo sTATes: coMPAring sTATuTory JobsiTe liAbiliTy in oregon And WAshingTonJamison McCune, Bodyfelt Mount LLP

The TruMP eFFecT: exPecT The unexPecTed (or noT) in eMPloyMenT lAW in 2017

Ryan Gibson, Ryan S. Gibson Law LLC

so you WAnT To seTTle your cAse: The ToP Ten dos And don’Ts oF JudiciAl seTTleMenT conFerencesKirsten Curtis, Thenell Law Group

AMicus uPdATe 32

Judge’s bio 30

The scribe’s TiPs For beTTer WriTing 23

deFense VicTory! 27

FroM The PresidenT 2

recenT cAse noTes 14

2

PeTiTions For reVieW 21

legislATiVe uPdATe 24AssociATion neWs 26

▼

2 The VerdicTTM ■ 2017–issue 2

p r e s i d e n t ’ s m e s s a g e

W

b y m a r y - a n n e r a y b u r n

Contemplating the Future Practice of Law:Are You Ready?

Mary-Anne Rayburn

Continued on next page

hile we celebrate OADC’s

50th Anniversary, we should

contemplate the future. I

have no crystal ball, nor do

I claim to have any more

insight than others. Nonetheless, I have

a few observations.

Technology has s ign i f i cant ly

impacted the practice of law. When I

started my career in 1980, memoranda,

letters, and pleadings were first drafted

( i .e. , handwritten),

then dictated into

reel-to-reel dictation

equipment and/or to a

legal assistant proficient

in shorthand. The firm

had recently purchased

t y p e w r i t e r s t h a t

digitally displayed the

typed text, one line at a time. Presumably,

this new technology made it easier to

catch errors in “real time.” It was cool

to watch. For voluminous projects, large

machines read thousands of mag cards

(heavy paper rectangular shaped cards

with holed notches in various patterns)

that at the end of the process produced

the finished written project. While

computer legal research was available,

the library was substantial and impressed

lawyers and clients alike. However, as

technology innovated, how we practiced

law quickly changed.

Today, we can communicate, research,

prepare, and produce a final product and

obtain a result easier and faster. Besides

a compact PC and multiple computer

screens on the desk, whether at home or

the office, who amongst us does not have

at least one smart phone, tablet, and/or

laptop? Servers store an unfathomable

amount of data. However, advances in

cloud technology may mean the eventual

demise of, or will certainly curtail the

need for a physical server. The internet

offers vast research opportunities for

just about everything: you, your client,

the parties and witnesses in your lawsuit,

manuals, instructions and specifications,

as well as how to do something with

video instruction to make it simple. It is

no longer necessary to keep a physical

library, since case briefs, court decisions,

statutes, regulations, and legislative

history are readily available online.

Court filings are now accomplished

online. The days of scrambling to get

pleadings to the courthouse by the

4:30 pm or 5:00 pm deadline are long past.

In many ways, technology has made

the practice of law easier, faster, and more

efficient. Information not available or

easily accessible even ten years ago is now

at our fingertips to be used to advocate

for our client’s interests and for the

interests of justice. On the other hand, it

can make what we do more challenging.

As the technology advances, lawyers and

their firms become even more efficient

and cost effective while also providing

excellent service. Moreover, technology

will cause us to rethink what tasks lawyers

will perform.

AI, artificial intell igence, will

profoundly affect the practice of law. In

2011, IBM Watson, a cognitive technology

software program, competed against

former Jeopardy champions and won

handily. According to IBM’s website,

“Watson can understand all forms of

data, interact naturally with people, and

learn and reason at scale.”1 Watson is

being used in financial services, health

care, retail and educational markets.2

Last year, BakerHostetler announced that

it had hired a robot known as ROSS, an

attorney intelligence software program,

to be a legal researcher for its bankruptcy

practice group of 50 lawyers. ROSS is

powered by IBM’s Watson technology.3

ROSS can research and evaluate thousands

of documents quickly and, with additional

input from lawyers, can further refine

the initial hypothesis or question to assist

the judgment-making process. Since

ROSS can shorten the research time, the

money saved by not charging the client

for human research benefits the client.

This technology is still in its infancy.

The cost may be too high for most firms.

However, as with most technological

advances, over time AI software will

become faster, more humanlike, and

affordable. While these advances will

undoubtedly make the practice of law

easier, they also raise questions. At what

point does AI engage in the practice

▼

3The VerdicTTM ■ 2017–issue 2

president’s messagecontinued from page 2

of law rather than simply providing

cases, statutes, or articles that support

the proffered position? Can AI commit

malpractice? Should State Bar admissions

criteria be changed to include AI lawyers?

How will this impact a lawyer’s ability

to independently critique and analyze

the legal and factual issues presented?

Will it save the client money? How will it

impact a firm’s associate needs, and could

it reduce the number of lawyers?

Technology will also continue to play

a significant role in management software

programs and cloud applications. Many of

us are already on some software system(s)

either because the client requires it and/

or the law firm requires it to best manage

its work. These systems too will evolve.

Increasingly, files will be electronically

stored, likely in a secure cloud and easily

accessible to the client. Portals can be

created so the client can view in real time

work done on any particular file as well

as track the time spent and costs incurred.

Clients will be able to analyze the data

to detect any issues in its litigation

management and to create new solutions.

Clients will continue to require lawyers

and their law firms to provide value-

added services in a cost-effective way.4

Also, technology, along with the

cost of real estate, will cause law firms

to reconsider the amount of space

they really need and where that space

is located. Many businesses (i.e., our

clients) have already reduced their office

footprint. Offices are smaller and/or

shared. Whoever arrives or reserves the

office first gets the space for time needed.

Working from home or on the road is

encouraged or required. There is no need

to rent so much space because technology

allows us to work remotely.

Technology will continue to evolve at

a rapid rate. Change is inevitable. How we

anticipate or adapt to these innovations

will be critical, not only to better serve our

client’s needs but to ensure our ability to

continue practicing law.

endnotes

1 Go beyond artificial intelligence with

Watson, IBM, https://www.ibm.com/

watson/.

2 Id.

3 Karen Turner, Meet ‘Ross,’ the newly

hired legal robot, The Washington

Post (May 16, 2016), www.wash-

ingtonpost.com/new/innovations/

wp/2016/05/16/; Chris Weller, The

world’s first artificially intelligent

lawyer was just hired at a law firm,

Business Insider (May 16, 2016),

www.businessinsider.com; AI Lawyer

“Ross” Has Been Hired By Its First

Official Law Firm, Futurism, www.

futurism.com.

4 Nicole Black, 2017 Legal Technology

and Practice Management Predic-

tions, MyCase (Jan. 10, 2017), http://

www.mycase.com/blog; David Tal,

Forecast/Trends that will reshape

the modern law firm: Future of law

P1, QuantumRun (Aug. 22, 2016,

7:05 PM), http://www.quantumrun.

com/prediction/trends-will-reshape-

modern-law-firm-future-law-p1;

Frank Strong, 25-Plus Predictions

for the Legal Industry in 2015, Lexis-

Nexis Business of Law Blog (Dec. 16,

2014), http://businessoflawblog.com/

predictions-legal-2015; Mark Her-

rmann, 3 Predictions for 2017, Above

the Law (Jan. 9, 2017, 10:02 AM),

http://abovethelaw.com/2017/01/3-

predictions-for-2017/; Four lawyers

predict the future of law practice,

American Bar Association (July 2016),

http://www.americanbar.org/pub-

lications/youraba/2016/july-2016/

four-lawyers-gaze-into-the-future-

of-law-practice-.html.

FEATURES



C

Chad M. Colton

ommercial litigation often

starts long before a lawsuit

i s ever f i led . When a

business dispute begins and

litigation is imminent, many

clients and defense lawyers simply hold

their breath waiting for service of the

complaint. But those

moments before the

lawsuit strikes present

an opportunity. Guiding

and positioning your

client through those

moments can make a

huge difference in the

ultimate outcome of

the case. Below are a few tips on how

to do that.

tip one: Get the executive team un-der control.

Whoever said that business litigation

is “just about money” had no idea what

they were talking about. In a business

dispute, it’s never just about money.

Reputations are at stake. Egos bristle.

And emotions run high.

Most of the things we regret saying

in life happen when we’re angry. We’ve

all seen how that truism is amplified in

litigation. That email that your client’s

CFO sent to the office manager to blow

off steam? It looks terrible projected on

a screen at trial. Teach your client the

following proverb: “Dance like nobody

is watching. Email like it will be read in

a deposition.”1

When litigation is on the horizon,

give your client’s executive team an

opportunity to vent their frustrations

and tell their side of the story—and do it

within the confines of the attorney-client

privilege. Call a meeting with those who

are involved in the dispute. Don’t just ask

them what happened: ask them what

they are feeling and thinking about the

situation. Make sure they feel heard. Then

counsel them, extensively and forcefully,

about the need to keep their emotions

under control when communicating with

the potential opponent and with each

other when discussing issues that might

be relevant to litigation.

tip two: Get involved early and set up a record.

One of my early mentors used to tell

me that in litigation, “You don’t write

the music, you just play the piano.” No

matter how talented the proverbial

pianist may be, they’ve all watched a

client sit through cross-examination

about an unsavory—and perhaps wholly

unnecessary—document and thought, “I

wish I had some better music.”

When litigation is imminent, counsel

your clients about giving you a chance

to help compose some of the music. For

example, your clients may need early

advice about a course correction to

avoid breaching their legal obligations.

But more commonly, they may simply

need help setting up a record of their

good deeds before the lawsuit is filed.

In the haze of a dustup, companies and

lawyers often overlook the power of

setting a clear, written record of the

company’s efforts to avoid a breach.

Becoming involved in the dispute early

gives you a chance to help your client set

up a contemporaneous record of its good

deeds. Witness testimony about what the

company did is fine and good, but adding

contemporaneous, written exhibits to

that testimony is powerful at trial, and

your opponent will know it.

As a dispute progresses, think

carefully about written communications

that the legal and executive teams can

send to your client’s opponent outlining

the company’s efforts to comply with

its obligations, the specifics of your

opponent’s failures, and instructions or

invitations about how your opponent can

remedy the situation—and keep them

outside the parameters of Rule 408. In

addition, make sure that the company

creates an internal record of the precise

steps taken to meet its obligations.

tip three: Start thinking about the attorney fee petition early.

Many complex business cases involve

contracts with attorney fee provisions.

But what hardly anybody thinks about

When Things Are About to Hit the Fan, Make Sure to Point It Away from Your Face—Tips for Positioning

Your Client for Imminent Business Litigation

chad M. coltonMarkowitz Herbold PC

FEATURES


imminent business litigationcontinued from page 4

at the beginning of a dispute is that

the victor in the case will be limited to

recovering the “reasonable” attorney

fees and costs incurred in the case.

One of the key issues that judges look

at to determine attorney fee awards is,

of course, the parties’ efforts to settle

the case without having to proceed to

summary judgment or trial. Not only

are the timing and frequency of the

parties’ settlement efforts important

to that analysis, but so is the substance

of the parties’ settlement exchanges.

So if the record shows that one party

was particularly obstinate during early

settlement negotiations, the judge is

more likely to adjust the fee award in

favor of the more reasonable party.

If litigation is imminent or in its

early stages, invite your opponent to

the table early to discuss the possibility

of settlement—and do it in writing. Your

well-documented efforts to resolve the

case will show the judge that you tried.

You were reasonable. You did what you

could to resolve the case early and avoid

wasting the court’s precious time and

resources. Give the judge a clear record

that you acted like an adult, but your

opponent just didn’t reciprocate.

tip Four: never underestimate the power of having the first (and last) word.

At the risk of being labeled an OADC

heretic, I recommend the following when

a commercial dispute is brewing: you

should strongly consider making your

client the plaintiff in the case. Before you

try to screen me from the OADC listserv,

just hear me out. Things are different

in commercial litigation. Typically, both

sides have claims against each other,

and the identity of the plaintiff is a mere

matter of who gets to the courthouse

first. And holding rigidly to your identity

as a defense lawyer can be a strategic

mistake.

If you strike first and take on the

mantle of the plaintiff, you are in a

position to control the pace, forum,

and—most importantly—the message of

the litigation. Your opponent will know

that if the case ever proceeds to trial, you

will get to put on your case first. If the

case is complex, you may have weeks or

months to parade your evidence and trial

themes in front of the jury before your

opponent puts on a single witness. And,

of course, don’t forget about the fact

that you get to put on a rebuttal case—

effectively getting both the first and the

last word. That is a powerful position in

a commercial dispute.

When things are about to hit the fan,

there are often plenty of things that you

can do to position your client away from

the impending mess. Skillful positioning

of your client in advance of the lawsuit

can shorten the litigation and put the

company in a much better position to

prevail in the end. Proactive thinking

with an eye toward how your company

will look in an evidentiary record is the

key, and can save your client plenty of

unnecessary headaches and expense.

endnotes

1 @olivianuzzi, “Dance like nobody is

watching; email like it may be read

aloud in a deposition.” Twitter, 13

Dec. 2014, 1:18 pm, twitter.com/Olivi-

anuzzi/status/543877654576107520.

Lisa Amato

Exclusively

Dispute Resolution Services

MediationArbitration

LISA AMATO Amato Mediation520 SW Yamhill, Suite 1015 Portland, OR 97204

503.789.3262www.amatomediation.com [email protected]

FEATURES



he grass is always greener on

the other side of the bridge

may not be the case when

comparing the Washington

Industrial Safety and Health

Act (“WISHA”)1 with Oregon’s Safe

Employment Act (“OSEA”)2 and Employer

Liability Law (“ELL”)3. With regard to

defending general contractors and

owners from injury claims by non-

employees, Oregon and Washington law

each have their own

pros and cons.

Both Oregon and

W a s h i n g t o n h a v e

workers’ compensation

statutes that generally

exempt comply ing

employers from tort

liability for an employee’s injury. Perhaps

not surprisingly, this can leave “indirect

employers” in the crosshairs for claims

resulting from jobsite injuries to workers.

By understanding the ins and outs of each

statutory scheme, defense counsel can

effectively defend general contractors

and owners from such claims in both

states.

WiSha

In Washington, all general contractors

have a non-delegable duty to ensure

compliance with all WISHA regulations.4

This duty extends to all workers on the

jobsite, and general contractors can be

liable for any WISHA violations. Proof

that a general contractor controlled the

work of a subcontractor is not required.

The rationale behind this rule is that

since the general contractor controls

the property and working conditions,

the contractor also has a duty to account

for safety.

Owners, developers, and upper-

tier subcontractors may be required to

ensure WISHA compliance as well.5 In

many respects, labels are immaterial. If

an owner, developer, or subcontractor’s

position is comparable to a general

contractor, the responsibility to ensure

compliance with WISHA regulations is

triggered.

Washington law does recognize,

however, that an owner’s role at a

jobsite can vary widely. Accordingly,

an owner is only subject to WISHA

compliance if the owner retains control

over how a contractor completes its

work.6 Like Oregon, retained control

in Washington is determined by the

parties’ contract and course of conduct.

This allows unsophisticated owners to

rely on contractors they hire without

automatically subjecting themselves to

WISHA compliance for the entire job site.

oSea

The OSEA also requires compliance

with state workplace regulations.

However, there are two major differences

between the Oregon and Washington

schemes. First, the OSEA only applies

to direct employers and “owners.”7

An indirect employer is not considered

an “employer” for OSEA purposes. An

indirect employer, such as a general

contractor, may be considered an

“owner,” however, depending on the

case.

An owner under the OSEA is

someone with “ownership, control, or

A Tale of Two States: Comparing Statutory Jobsite Liability in Oregon and Washington

Jamison MccuneBodyfelt Mount LLP

Jamison McCune

T

FEATURES


statutory jobsite liabilitycontinued from page 6

custody” of the job site.8 The term has

been broadly interpreted. The Oregon

Supreme Court, for example, held that

a financing company could be an owner

under the OSEA because it had an

ownership interest in a truck.9 Although a

general contractor would appear to meet

the definition of an owner, especially in

regards to control or custody of a job

site, some trial courts have held to the

contrary.

Second, OSEA liability only arises

if the “owner” violated a workplace

regulation applicable to owners.10

Violations of workplace regulations by

subcontractors cannot be used to create

OSEA liability for owners. For an owner

to be liable, the applicable workplace

regulation must either expressly or

implicitly regulate the owner. This is much

narrower than WISHA, where general

contractors (and perhaps owners) can be

held liable for a subcontractor’s WISHA

violations.

oregon eLL

In comparison, the ELL is narrower

than WISHA in some respects and much

broader in others. Unlike WISHA, the

ELL does not apply to all employers.11

Generally, the ELL only applies to those

in charge of “work involving a risk or

danger to the employees.”12 In addition,

an injured worker must demonstrate

actual control, retained control, or a

common enterprise in order to impose

liability against a general contractor or

owner under the ELL.13 This is slightly

different than in Washington, where

a general contractor is automatically

required to ensure WISHA compliance,

and an owner may be required to ensure

compliance if there is retained control.

When it applies, the requirements of

the ELL are more rigorous than WISHA.

The ELL requires general contractors and

owners to comply with all applicable state

workplace regulations.14 Furthermore,

the ELL requires the use of “every device,

care, and precaution practicable” for the

protection of workers “without regard to

the additional cost of suitable material or

safety appliance and devices.”15

This is a much higher standard than

WISHA, which only mandates compliance

with WISHA regulations. Presumably, in

many cases there will be safety appliances

and devices beyond those required by

law. This is also a constantly evolving

standard as technology advances.

effect of Violation

Violations of the statutory schemes

have different legal effects. In Oregon,

OSEA and ELL violations can constitute

negligence per se.16 In large part, this

depends on whether the applicable

workplace regulations were enacted

to protect the injured worker and

whether the regulations are mandatory

or discretionary. Yet, even if negligence

per se principles do not apply, OSEA and

ELL regulations may still be admissible to

prove the standard of care.

Evidence of WISHA rules are

likewise admissible to prove negligence.

Washington law express ly l imits

negligence per se to only a handful of

claims.17 WISHA violations therefore do

not result in negligence per se but may

be strong evidence of negligence.18

conclusion

The responsibilities of general

contractors and owners at multiemployer

job sites will continue to evolve. In Yeatts

v. Polygon Northwest Company,19 the

Oregon Supreme Court overturned a

48-year-old precedent and significantly

expanded the definition of retained

control for general contractors defending

ELL claims. The law regarding retained

control claims against owners in

Oregon may change as well. In a similar

vein, Washington law has gradually

expanded requirements for WISHA

job site compliance from only general

contractors, to developers, owners, and

even “licensors.”20 As the law in both

states develops, additional similarities

and differences between Oregon and

Washington law will arise.

endnotes

1 Wash. Rev. Code § 49.17.010 et seq.

2 Or. Rev. Stat. § 654.001 et seq.

3 Or. Rev. Stat. § 654.305 et seq.

4 Kamla v. Space Needle Corp., 147 Wn

2d 114, 122 (2002).

5 Id. at 122-23.

6 Id. at 124-25.

7 Or. Rev. Stat. § 654.022; Brown v.

Boise-Cascade Corp., 150 Or App 391,

404 (1997).

8 Or. Rev. Stat. § 654.005(6).

9 Moe v. Beck, 311 Or 499, 505 (1991).

10 Brown, 150 Or App at 408.

11 In comparison, the OSEA applies

to all employers. Or. Rev. Stat. §

654.022.

12 Or. Rev. Stat. § 654.305; see also Or.

Rev. Stat. § § 654.310 (regulating

work involving construction, elec-

tricity, machinery, and dangerous

substances).

13 Yeatts v. Polygon NW Co., 360 Or 170,

179 (2016).

14 Or. Rev. Stat. § 654.310.

15 Or. Rev. Stat. § 654.305.

16 Skeeters v. Skeeters, 237 Or 204, 217

(1964) (ELL); Brown, 150 Or App at

413-14 (OSEA).

17 Wash. Rev. Code § 5.40.050.

18 Moen Co. v. Island Steel, 128 Wn 2d

745, 755 (1996).

19 360 Or 170 (2016).

20 See Afoa v. Port of Seattle, 176 Wn

2d 460, 478 (2013).

FEATURES


h i l e A m e r i c a n s m a y

disagree strongly about

the election of President

Donald Trump, we can

all agree his presidency is

unprecedented. Trump’s background

and style make it difficult to know

how his administration

will lead, including

in shaping federal

e m p l o y m e n t l a w.

Here are a few areas

Oregon employment

attorneys should watch

out for as the Trump

administration gets

underway in 2017.

a divisive and Vulgar campaign Plays out in the Workplace

The 2016 election dialogue pushed

the envelope of appropriate political

discourse. Whether it was candidates

joking about hand size (wink, wink),

the leaked hot mic recording of Trump’s

graphic “locker room talk,” his statement

about Mexicans and Muslims, or Hillary

Clinton supporters’ counter-protests, the

election devolved into emotional mud-

slinging, which continues today.

Employers face challenges when

employees bring this highly charged

debate to work. Political affiliation

is not a protected class in Oregon.

But political discussion can indirectly

implicate employment laws. Discussion

of the more R-rated election aspects

could violate company codes of conduct

or harassment policies. Some issues touch

on protected classes like race, national

origin, or gender. Those include Trump’s

“locker room” banter, immigration

debate, the proposed “Muslim ban,” or

the debate about the Black Lives Matter

and Blue Lives Matter groups. In addition,

demographic differences between the

Trump and Clinton supporters—Trump’s

are older, whiter, and male; Clinton’s

are younger, diverse, and female—

can create fault lines along protected

classes. Government employers may

be stuck between complying with

Title VII’s prohibitions on harassment

and having to allow protected speech

protected under the First Amendment.

And these divisions can impair workplace

cooperation and collaboration, which

can increase the miscommunications that

can spark employment claims.

Anecdotal accounts show an uptick

in these types of workplace tensions

during the election and its aftermath.

Even as the intensity of the election

fades, expect these issues to continue

throughout 2017. Human resource

managers and employment counsel

should pay close attention to Trump-

related disputes, which may touch on

protected class concerns.

Federal employment enforcement

Priorities May Shift…or not

Tr u m p m a y c h a n g e f e d e r a l

employment enforcement priorities.

Orthodoxy suggest s Republ i can

administrations adopt more employer-

fr iendly pol ic ies , and the Equal

Employment Opportunity Commission

(“EEOC”) and National Labor Relations

Board (“NLRB”) are famous for tacking

sharply when power shifts between

Democrat and Republican. Yet Trump

is not orthodox. He is a New York

billionaire whose positions on trade and

immigration won over working class

voters in key Midwestern states. He has

made statements favoring LGBT rights

and paid family leave. His vague or

contradictory statements make it difficult

to know where he will head, but here are

a few areas where changes could occur.

Anti-Discrimination Law and the

EEOC. Trump has appointed Victoria

Lipnic as Acting Commissioner of

the EEOC.1 A moderate Republican

appointed by President Obama, Lipnic

may not steer the EEOC in a dramatic

new direction. In 2016, she co-authored

the EEOC’s final report on workplace

harassment, concluding that continued

EEOC enforcement is necessary to remedy

still-prevalent unlawful harassment.2 The

Lipnic EEOC may adjust some priorities,

such as focusing less on “systemic”

The Trump Effect: Expect the Unexpected (or not) in Employment Law in 2017

ryan GibsonRyan S. Gibson Law LLC

Ryan Gibson


W

FEATURES


discrimination, or rescinding proposed

requirements that annual EEO-1 reports

include detailed payroll data.3 But don’t

otherwise count on a dramatic change in

EEOC enforcement priorities.

Labor Law. The Obama NLRB adopted

aggressive interpretations of labor laws

to expand enforcement against the 90

percent of private employers without

unions. These include prohibiting class

action waivers in arbitration agreements

(see below) or confidentiality in

workplace investigations, expansive

definitions of “joint employer” status,

and new rules allowing union elections

to proceed on a shorter timeline. We will

likely see the typical rightward shift on

some issues. But similar to Lipnic’s EEOC

appointment, Trump’s appointment of

Philip Miscimarra as NLRB Chairman

may signal less of a departure from the

Obama years than some Republicans

might hope. Given that Trump’s victory

depended on winning union members

in key Midwestern battleground states,

he may choose to employ a light touch

on labor law.

Department of Labor (DOL). The

Obama Administration’s proposed

increase of the salary threshold for the

“white collar” exemptions under the Fair

Labor Standards Act (“FLSA”) was to take

effect in December 2016, but a federal

judge blocked its implementation.4 The

fate of the rule is on hold pending appeal

to the Fifth Circuit. Trump could keep

the Obama rule, as it may benefit his

supporters in those battleground states.

Indeed, the current salary threshold of

about $23,000 is outdated; it is below the

2016 poverty level income for a family of

four ($24,000).5 Trump’s DOL will likely

keep the rule, possibly limiting it to larger

employers or reducing future increases to

the salary threshold. This may not matter

to those employers that prepared for

months to implement the Obama rule

and then decided to go through with

it even after its implementation was

blocked.

u.S. Supreme court: class action

Waivers and Sexual orientation

discrimination

Another area where Trump will have

a direct impact is on the makeup of the

U.S. Supreme Court. Trump’s recently-

confirmed nominee, Neil Gorsuch, won’t

tip the balance of the Court much since

he replaces Antonin Scalia, another

conservative. But if one of the three

oldest sitting Justices—Anthony Kennedy

(age 80), Ruth Bader Ginsberg (84), or

Sid BROCKLEYCARLTON

William GIBSONCLACKAMAS

Susan HAMMERPORTLAND

Richard SPIERPORTLAND

Met WILSONPORTLAND

* The National Academy of Distinguished Neutrals (www.NADN.org) is an invitation-only professional association of over 900 litigator-rated

mediators & arbitrators throughout the US and a proud sponsor of the AAJ and DRI. For more info, please visit www.NADN.org/about

As approved by local members of the national plaintiff (AAJ) and defense (DRI) bar associations*

OREGON CHAPTERThe following attorneys are recognized for

Excellence in the field of Alternative Dispute ResolutionThe following attorneys are recognized for

Excellence in the field of Alternative Dispute Resolution

Check Detailed Bios & Available Dates Online at www.ORMediators.org

Jim HUTCHINSONPORTLAND

employment lawcontinued from page 8


FEATURES


Steven Breyer (78)—retires, a Trump replacement nominee would make the Court more conservative. History suggests the Democrats could retake the Senate in 2018 (the President’s party often loses the next mid-term Congressional election). Then Senate Democrats might block Trump’s nominees, as Senate Republicans famously did in 2016 to Obama’s nominee Merrick Garland.

The Court will likely consider several employment cases in the coming years. This term, the Court accepted cert of several cases addressing the enforceability of class action waivers in arbitration agreements under the Federal Arbitration Act (“FAA”), including Morris v. Ernst and

Young, LLP in the Ninth Circuit.6 Morris

will resolve a lower court split stemming from the NLRB’s 2012 DR Horton decision, which held that employee arbitration agreements that included waivers of class action claims violate Section 7 of the National Labor Relations Act’s protections of the right to engage in “concerted activity.” DR Horton was in tension with

the Court’s recent case AT&T Mobility v.

Concepcion, which held that class action waivers were enforceable in commercial contracts under the FAA.7 Concepcion’s endorsement of class action waivers appeared to open the door to effectively eliminating one of the biggest risks to employers today: exposure to wage and hour class action claims under FLSA and similar state laws. Concepcion was a 5 to 4 decision authored by Justice Scalia. With Justice Gorsuch replacing Scalia, a ruling in favor of class action waivers is likely.

Other significant employment cases may come before the Court soon. NLRB v.

Browning-Ferris Industries, now pending in the D.C. Circuit, addresses whether a company and staffing agency can be a “joint employer.” In 2015, the NLRB expanded its 30-year-old definition of “joint employer” to include unrelated entities with “indirect” control.8 Note that while both Browning-Ferris and Morris apply labor law, those rules apply to non-union employers, too.

Another case is Kimberly Hively

v. Ivy Tech Community College, et al.,

in which the Seventh Circuit (en banc)

recently decided that sexual orientation

is protected by Title VII of the Civil Rights

Act of 1964 (“Title VII”).9 In 2015, EEOC

guidance stated sexual orientation was

protected under Title VII as sex or gender,

but some federal courts have disagreed.10

It is likely Hively or a similar case will come

before the Court soon.

Will any of this Matter for oregon?Some Oregon employment lawyers

might shrug at all this, and point out

that any changes brought by the Trump

administration may not change things

much here in the Beaver state. Solid

Democratic majorities have enacted

a steady stream of new employment

laws in recent years. Those include

increases to the remedies available in

discrimination cases (2008), new anti-

retaliation statutes (2010), and paid

sick leave (2016). Indeed, the issue in

Hively, whether Title VII protects sexual

orientation, is moot in Oregon, where

sexual orientation has been a protected

class for nearly a decade. In addition to

substantive protections, procedural quirks

make Oregon state courts favorable

to plaintiffs in employment cases. The

practice of suing coworkers individually

for “aiding and abetting” discrimination

usually prevents removal to federal court

on diversity grounds.11 Oregon courts

do not apply the McDonnell-Douglas

burden-shifting analysis to discrimination

claims, making it difficult for employers

to prevail at summary judgment.12

This local trend looks to continue,

regardless of what Trump may do. The

2017 Oregon Legislature is considering

a number of new employment bills.

One example is “anti-bullying” statutes,

HB 2167 and SB 292, which prohibit an

“abusive work environment” that causes

mental or physical harm.13 These new

laws could conceivably make unlawful

u Insurance Defense Attorney for Over 35 Years

u Honorary Member of OADC

u Over 450 Mediations/Arbitrations & Counting

u Have Car/Will Travel Anywhere In Oregon & NW

No Travel Fees or Travel-Related Expenses

William E. FlinnMediation & arbitration

747 SW Mill View Way u Bend OR 97702 u http://www.flinnmediation.com/

(541) [email protected]



FEATURES


any workplace disagreement or assertive conduct, regardless of whether it relates to protected class like race or gender. While they may not pass (similar bills failed in past sessions), the Oregon Legislature will continue to be active, possibly in reaction to a rightward shift in federal law.

conclusionOregon employers should watch

developments at the federal level under an unpredictable Trump administration. Federal law will have a significant impact on Oregon employers. Right now, we just don’t know what that impact will be.

endnotes1 Victoria A. Lipnic, Acting Chair, U.S.

Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/eeoc/lipnic.cfm (last visited May 18, 2017).

2 Select Task Force on the Study of Ha-

rassment in the Workplace, Report of

Co-Chairs Chai R. Feldblum & Victoria

A. Lipnic, U.S. Equal Emp’t Opportu-nity Comm’n, https://www.eeoc.gov/eeoc/task_force/harassment/report.cfm#_Toc453686298 (last visited May 18, 2017).

3 Questions and Answers: The Revised

EEO-1 and Summary Pay Data, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/employers/eeo1survey/2017survey-qanda.cfm (last visited May 18, 2017).

4 Nevada v. United States Dep’t of

Labor, No. 4:16-CV-00731, 2016 WL 6879615, at *7 (ED Tex Nov. 22, 2016) Interestingly, the holding suggests the court found not only that the DOL exceeded its authority in setting the specifics of the rule, but that the government may not have statutory authority to base the exemption on a salary at all. Id. at * 7 (“Congress did not intend salary to categorically exclude an employee with EAP duties from the exemption.”)

5 Annual Update of the HHS Pov-

erty Guidelines, Federal Reg-i ster (Jan. 25, 2016), https: / /www.federalregister.gov/docu-ments/2016/01/25/2016-01450/an-nual-update-of-the-hhs-poverty-guidelines.

6 Morris v. Ernst & Young, LLP, 834 F3d 975 (9th Cir 2016), cert. granted, 137 S Ct 809 (2017); see also Supreme Court of the United States, https://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/16-300.htm (last visited May 18, 2017).

7 AT&T Mobility v. Concepcion, 563 US 333 (2011). As the opinion points out, it is the latest in a long series of cases over the past 20 years favorable towards arbitration in a number of contexts.

8 Browning-Ferris Industries of

California (“Browning-Ferris”), 362 NLRB No. 186 (Aug. 27, 2015).

9 Hively v. Ivy Tech Cmty. Coll., S. Bend, 830 F3d 698 (7th Cir 2016), as amended (Aug. 3, 2016), reh’g en banc granted, opinion vacated, No. 15-1720, 2016 WL 6768628 (7th Cir Oct. 11, 2016).

10 See Hively, supra note 8; see also

What You Should Know About EEOC

and the Enforcement Protections

for LGBT Workers, U.S. Equal Emp’t

Opportunity Comm’n, https://www.

eeoc.gov/eeoc/newsroom/wysk/en-

forcement_protections_lgbt_work-

ers.cfm (last visited May 18, 2017).

11 See Demont v. Starbucks Corp., No.

10-CV-644-ST, 2010 WL 5173304, at

*3 (D Or Dec. 15, 2010) (denying

remand where plaintiff sued

individual defendants for “aiding

and abetting” discrimination).

12 See, e.g., Williams v. Freightliner, LLC,

196 Or App 83, 89, 100 P.3d 1117,

1121 (2004) (Oregon courts reject

application of McDonnell-Douglas

analysis of state law claims).

13 2017 Regular Session, HB 2167, Or-

egon State Legislature, https://olis.

leg.state.or.us/liz/2017R1/Measures/

Overview/HB2167 (last visited May

18, 2017); 2017 Regular Session,

SB 292, Oregon State Legistlature,

https://olis.leg.state.or.us/liz/2017R1/

Measures/Overview/sb292 (last vis-

ited May 18, 2017).


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J


Kirsten Curtis

don’t tell the

judge what to do.

it will just irritate

the judge, and will

not be helpful to

the progress of the

day. Focus on what

the judge is telling

you, and what you

are bringing to the

table.

u d i c i a l s e t t l e m e n t c o n f e r e n c e s a r e a n underutilized tool in Oregon. Not just for federal court, these conferences can be

an inexpensive alternative to traditional private mediation. While mediation in any format may be great for your case, your client may be more likely to

consider the advice of a sitting judge—someone who is perceived to be neutral by profession. Many judges estimate their “success rate” at judicial settlement conferences to be in the 90 percent range or

higher, so why not use them? Under Oregon Rule of Civil Procedure

54(f), “A settlement conference may be ordered by the court at any time at the request of any party or on the court’s own motion. Unless otherwise stipulated to by the parties, a judge other than the judge who will preside at trial shall conduct the settlement conference.” In preparing for a judicial settlement conference, also check UTCR 6.200 and your county’s SLR on this topic.

Assuming that you and the opposing party have agreed to go the judicial settlement conference route, how do you ensure the best outcome for your client? Based upon personal experience

and conversations with some of the best

mediators in our judiciary, I’ve compiled

ten important dos and don’ts to help

you succeed.

1) Do consider your timing. Every case is

fact specific. Some will benefit with

a judicial settlement conference be-

fore suit is even filed. Others need to

get through the dispositive motion

phase. Know your case, and make

sure it is ready before you agree to

hold a conference.

2) Do prepare. This includes choosing

the right judge for your client and

your case. Once you’ve set up the

conference, don’t count on “wing-

ing it.” In most cases, the assigned

judge will ask for a memo prior to

the conference. Spend time on this

document! Lay out your client’s

strengths, and be honest about the

weaknesses. Attach key exhibits for

the judge to review beforehand.

3) Do talk with your client beforehand.

Discuss expectations, and explain the

process. Discuss potential outcomes,

and make sure you know what your

client hopes for in terms of a resolu-

tion. It might not be monetary. If one

of your issues is client control, let the

judge know beforehand, confiden-

tially.

4) Do exchange settlement offers

before the conference. If your first

settlement discussions take place at

the conference, you risk each party

opening up with their best day in

court—and why wouldn’t they? Save

time and get those offers out of the

way before you start, and you will be

able to key in to the more meaning-

ful discussion during the conference.

Most judges recommended one to

two rounds of offers before coming

in.

So You Want to Settle Your Case: The Top Ten Dos and Don’ts of Judicial Settlement

Conferenceskirsten curtisThenell Law Group

FEATURES


judicial settlement conferencescontinued from page 12

5) Do prepare an “opening statement”

type overview of your client’s key

strengths, but DO NOT read it to the

judge. Be aware you are not arguing

to a jury. Do think about your case

from the other side’s perspective, and

identify your case’s weaknesses, too.

6) Do bring a person with authority to

settle the matter in person—your

“money person.” There is nothing

more frustrating for the parties in-

volved to have to wait for a call to be

made to obtain authority. If a judge

allows your key authority to appear

by phone, make sure you consider the

time zones of all involved, and make

sure your person is truly available.

7) Do bring key evidence and docu-

ments with you in hard copy—even

if you attached them to your settle-

ment memo. They do you no good

back at your office. Charts and

calculations that have already been

prepared are useful timesavers. It

may also be helpful to have your key

witness available for the judge to

speak to and advise on credibility. In

extremely technical cases, an expert’s

attendance may be beneficial to all

involved.

8) Do know what settlement terms your

client is going to want in a release.

Do not assume everything is “all in-

clusive” of fees and costs – lay it all

out on the table. If a confidentiality

provision is important to your client,

make sure the other side knows, or

you may risk losing meaningful work

and going back to square one. It may

even help to bring in a proposed re-

lease so wording can be hashed out.

9) Do come into the conference with

a short list of concessions you are

willing to make to reach a resolu-

tion, ranked in order of least pain-

ful to most painful for your client.

Knowing what points you can “give

away” to move negotiations along is

a beneficial practice. Consider these

“negotiation credits.”

10) Do continue to utilize the settle-

ment judge after the conference if

you do not settle on the day of the

conference. Often, your judge will

be willing to assist going forward to

exchange offers or provide a “judge’s

number.” Let them—you have noth-

ing to lose.

And now, what to avoid:

1) Don’t re-litigate issues already de-

cided by your trial judge. Okay, so you

lost your motion for summary judg-

ment, and your client really wants to

appeal. Do not attempt to reargue

your points, or try to move forward

with the conference as if you won

something you already lost.

2) Don’t bring unnecessary people. Do

you really need three lawyers? Do

you need an adjuster without author-

ity? If someone is not crucial to the

conversation, it is okay to leave them

at home.

3) Don’t tell the judge what to do. It

will just irritate the judge, and will

not be helpful to the progress of the

day. This includes saying things like “I

hope you’ve been telling them xyz.”

Focus on what the judge is telling

you, and what you are bringing to

the table.

4) Don’t be afraid to have a blunt

conversation. Under Alfieri v. Solo-

mon, 358 Or 383 (2015), you are not

waiving privilege at a mediation or

judicial settlement conference when

the judge is present.

5) Don’t give in too much too soon.

Movement is good, and encourages

momentum, but be wary of playing

your best card or making your best

offer too early. It may be beneficial

not to know your client’s best num-

ber or full authority.

6) Don’t present an “extreme” opening

number. Too high or too low will not

make you seem credible. Be serious

with your opening number, but don’t

present your client’s best offer either.

If your number is ridiculous, the op-

posing party is likely to respond in

kind.

7) Don’t give the judge your client’s

best number. Telling the judge your

client will pay $100,000 is not going

to make the judge a strong advocate

for your client’s wish to settle for

$25,000.

8) Don’t be afraid to negotiate with

things other than money. Apolo-

gies. Reinstatement of terminated

employment. Structured settlements.

It’s okay to be creative.

9) Don’t walk out early. Manage your

expectations coming in, but be will-

ing to give the process time. Set

aside at least half of a day to make

progress.

10) Don’t leave without memorializing

the conference formally. Even if you

did not settle, know each party’s last

offer and the terms being discussed.

You never know when you might

need to revisit the offers. Be clear

about who is handling the wrap-up.

For instance, who is informing the

court of the settlement? Should you

put everything on the record before

leaving?

In closing, know your case, be

prepared, and don’t be a bully. If you

follow these basic rules, your case, too,

may be included in the 90 percent success

rate for judicial settlement conferences.

Good luck!

RECENT CASE NOTES



Recent Case NotesSara kobak, Schwabe Williamson & Wyatt Pc

Case Notes Editor

Property

Oregon law does not require the use of particular words to show an intention for a covenant to run with the land

In Butler Family Ltd. v. Butler Bros.,

LLC, 283 Or App 456 (Jan 25, 2017), the

Oregon Court of Appeals held that issues

of fact precluded summary judgment

in a dispute about the application of a

restrictive covenant because Oregon law

does not require the use of particular

words, such as “successors,” to establish

an intention for a covenant to run with

the land.

The dispute in this case concerned

a restrictive covenant in a mining lease

agreement between defendant and

plaintiff’s predecessor-in-interest. Under

the terms of a restrictive covenant in the

lease, defendant had an exclusive right

to mine certain products from land that

plaintiff’s predecessor-in-interest owned

adjacent to the leased land. After the

lease was entered, plaintiff and plaintiff’s

predecessor-in-interest settled a property

dispute, and plaintiff became the owner

of the parcels that were subject to the

mining rights in the restrictive covenant.

A dispute subsequently arose

between defendant and plaintiff as to

whether the restrictive covenant in the

lease precluded plaintiff from mining

on the parcels. The parties filed cross-

motions for summary judgment on

plaintiff’s claim for a declaration stating

that the parcels transferred to plaintiff

were not subject to the lease agreement

between defendant and plaintiff’s

predecessor-in-interest. Plaintiff argued

that the lease was “personal to the

lessors” and burdened only plaintiff’s

predecessor-in-interest by its express

terms, but not any successors-in-interest.

In contrast, defendant argued that the

restrictive covenant ran with the land,

citing a lease provision providing that

the covenants extended to the “heirs,

personal representatives and assigns of

the parties.”

The trial court ruled in favor of

plaintiff, concluding that the parcels

transferred to plaintiff were not

subject to the restrictive covenant. In

reaching that conclusion, the trial court

determined that the restrictive covenant

was a personal covenant between the

parties to the lease and that it did not

include “successors” as parties for whom

the covenant would be binding.

The Court of Appeals reversed and

remanded the case, concluding that the

terms of the restrictive covenant were

ambiguous. Given the circumstances of

the case, the Court of Appeals determined

that the terms of the lease could be

interpreted to refer only to land owned

by plaintiff’s predecessor-in-interest, but

also could be interpreted to include the

parcels transferred to plaintiff. The Court

of Appeals also held that the trial court

erred in concluding that the absence of

the term “successors” meant, as a matter

of law, that the covenant was personal

to the contracting parties. Because the

record presented questions of fact, the

Court concluded that summary judgment

was improper. J

— Submitted by Noah Gordon

Davis, Rothwell, Earle, and Xóchihua

Insurance

Investigation of insurance claim does not estop an insurer from asserting a limitations defense when the insurer engages in no conduct designed to induce the plaintiff to delay in filing an action

In Brockway v. Allstate Property and

Casualty Ins. Co., 284 Or App 83 (March

1, 2017), the Oregon Court of Appeals

held that ORS 742.056 provides that an

insurer’s investigation of a claim does

not estop an insurer from asserting

a limitations defense. The Court of

Appeals also held that an insurance

investigation lasting beyond the time

frame of a suit-limitation period does

not violate the implied covenant of good

faith and fair dealing.

In this case, plaintiffs discovered

a theft of personal property at their

home and promptly reported the theft

to the defendant insurance company.

Months later, plaintiffs discovered

that additional property was missing,

and they reported the additional

missing items to the insurer. The insurer

investigated the claim and expressly

informed plaintiffs that the policy

imposed a two-year limitation period

for filing any action related to coverage.

The insurer also repeatedly notified

plaintiffs that the insurer refused to

waive any conditions in the policy. After

the two-year limitation period expired,

the insurer finished its investigation and

RECENT CASE NOTES


Recent Case Notes


denied coverage.

After denial of coverage, plaintiffs

filed an action against the insurer.

The insurer moved for summary

judgment based on the two-year suit-

limitation provision in the policy. In

response, plaintiffs argued that the

insurer was estopped from invoking

the suit-limitation provision because

plaintiffs reasonably relied on the

insurer’s representation that the claim

investigation was continuing. The trial

court granted summary judgment in

favor of the insurer, and the Court of

Appeals affirmed.

On appeal, the Court of Appeals

held that ORS 742.056 prevented the

insurer’s investigation from being used

to estop the insurer from asserting a

suit-limitation defense and that the

record contained no other evidence to

support estoppel. The Court also held

that there was no evidence to support

a claim for breach of the duty of good

faith and fair dealing. As to that holding,

the Court pointed out that the policy

contained the two-year limitation

provision, the insurer had no duty to

remind plaintiffs of the policy terms,

and the insurer engaged in no conduct

to induce plaintiffs not to file their legal

action. Recognizing that the implied

duty of good faith cannot be construed

to insert new terms into the contract, the

Court of Appeals held that the trial court

correctly granted summary judgment to

the insurer. J

— Submitted by Noah Gordon

Davis, Rothwell, Earle, and Xóchihua

Civil Procedure

A medical negligence claim will withstand a motion to dismiss under ORCP 21 A(9) if the complaint does not reveal on its face that the action is untimely

In Kastle v. Salem Hospital, 284 Or App

342 (March 15, 2017), the Oregon Court of

Appeals clarified that a plaintiff does not

have a burden of pleading facts to show

that a medical malpractice action was

filed within the statute of limitations. The

Court held that a complaint is sufficient to

withstand a motion to dismiss under ORCP

21 A(9) as long as the complaint on its face

does not show that the action is untimely.

In this case, plaintiff brought a

medical malpractice claim for alleged

negligence in the treatment of a blood

condition. More than two years after

the allegedly negligent care, plaintiff

filed an amended complaint to add

new defendants. Defendants moved to

dismiss the complaint under ORCP 21

A(9), asserting the two-year statute of

limitations for medical negligence under

ORS 12.110. In response, plaintiff moved

to amend the complaint to plead delayed

discovery of his claim and to plead a

disabling mental condition that tolled

the statute of limitations. The trial court

denied plaintiff’s motion to amend and

dismissed the action with prejudice.


reversed and remanded. In doing so, the

Court of Appeals held that a complaint will

withstand a motion to dismiss under ORCP

21 A(9) unless the face of the complaint

affirmatively shows that the action is

untimely. As applied to plaintiff’s medical

RECENT CASE NOTES



Recent Case Notesmalpractice claim, the Court of Appeals concluded that plaintiff’s allegations did not establish when plaintiff discovered or should have discovered that he suffered his injury, the cause of that injury, or that negligence was involved. Additionally, the complaint did not allege facts regarding when plaintiff discovered or should have discovered the newly added defendants’ role in causing his harm. Finally, the Court rejected defendants’ argument that the corporate defendants were “inherently discoverable,” explaining that “medical care may involve multiple care providers at various locations; they may come and go as shifts change, medical conditions arise, and circumstances require” and that the “relationships among medical providers are not readily apparent to the patient.” Based on that reasoning, the Court held that the fact that one of the newly added defendants was a corporation did not prevent the application of the discovery

rule to the case. Because the complaint did

not show on its face that the statute of

limitations had run, the Court of Appeals

concluded that the trial court erred in

granting the motion to dismiss. J

— Submitted by Sara Urch

Hart Wagner LLP

Discovery

Work-product protections may be unavailable when a plaintiff also sues the attorney who advised the employer regarding the alleged wrongful termination

In Wenzel v. Klamath County Fire

Dist., U.S. Dist. Ct. Case No. 15-cv-01371-

CL (D Or Jan. 18, 2017), Judge Aiken

affirmed a discovery order issued by U.S.

Magistrate Judge Clarke, compelling

the production of documents over

defendants’ assertion of the work-

product doctrine in a case alleging

wrongful termination.

Plaintiff’s complaint alleged a

wrongful-termination claim against his

former employer, along with a legal

malpractice claim against the employer’s

attorney. The complaint alleged that the

attorney had personal animus toward

plaintiff and had “improper motives”

in the matter, which influenced the

legal advice that the attorney gave to

the employer. In discovery, plaintiff

sought to obtain documents from the

employer’s internal investigation of

plaintiff. According to the complaint,

the employer began an investigation of

plaintiff roughly five months prior to the

termination as the result of allegations

from a third party. Plaintiff hired his own

attorney more than one month before

the termination.

Although plaintiff engaged counsel

to represent him in connection with the

investigation, Judge Clarke determined

that there was no real hint of the prospect

of litigation until the employer notified

plaintiff that his employment contract

would not be renewed. In ordering

that the documents were discoverable,

Judge Clarke further reasoned that

deliberations and discussions about an

internal investigation and employment

decisions are not subject to attorney

work-product protections merely because

of a “generalized fear” that a termination

may lead to litigation. Judge Clarke also

reasoned that, even if the materials were

prepared in anticipation of litigation,

the mental impressions of the attorney

were at issue in the case because of

plaintiff’s allegation that his employer’s

RECENT CASE NOTES


Recent Case Notes


attorney was improperly motivated when

providing legal advice to the employer.

Defendants appealed Judge Clarke’s

discovery order, arguing that production of

documents prior to plaintiff’s termination

date would require disclosure of attorney

handwritten notes containing mental

impressions, conclusions, and opinions

concerning the internal investigation,

potential litigation risks, and theories

of liability. Additionally, the documents

would include communications between

the attorney and the client’s insurance

claims representatives. The district court

affirmed Judge Clarke’s order, finding

the discovery order was not clearly

erroneous. J

— Submitted by Alicia Wilson

Frohnmayer Deatherage Jamieson

Moore Armosino & McGovern

Evidence

Broad evidence is relevant to general allegations of negligence absent a motion to make more definite and certain under ORCP 21 D

In Bergstrom v. Assoc. for Women’s

Health of S. Or., LLC, 283 Or App 601

(Feb. 1, 2017), the Oregon Court of

Appeals held that the trial court erred

in not permitting plaintiff to introduce

evidence about defendant’s alleged

negligence in performing ultrasounds in

a medical malpractice trial, even though

the complaint did not allege that any

ultrasounds were negligently performed.

Acknowledging defendant’s argument

that it had no notice of negligence

allegations relating to the performance

of ultrasounds, the Court of Appeals

held that plaintiff’s general allegations

of negligence were sufficiently broad

to permit admission of the evidence in

the absence of any motion to make the

allegations more definite and certain

under ORCP 21 D.

In the underlying medical malpractice

case, plaintiff sued an obstetrics clinic

that provided prenatal care and assisted

with the labor and the delivery of her

son, whose large size led to complications

during delivery. The complaint set

forth four allegations of negligence,

none of which made any reference to

ultrasound imaging. At trial, plaintiff

proffered testimony from an expert

regarding alleged failures in obtaining

and accurately measuring ultrasound

images. Defendant objected, arguing

that the testimony was outside the scope

of the pleadings. The trial court agreed

with defendant, concluding that the

testimony was irrelevant and unfair to

defendant because the pleadings failed

to provide defendant with proper notice

of allegations arising from the ultrasound

imaging. The trial court excluded the

testimony, and the jury returned a verdict

for defendant.


reversed. In doing so, the Court first

reiterated that the threshold for

relevance is “very low” under Oregon

law. The Court found that the proffered

evidence regarding ultrasounds was

relevant to plaintiff’s allegations that

defendant was negligent in performing a

vaginal delivery when defendant “knew

or should have known” that the mother

was at significant risk of having a large

baby. Even though the allegations did

not allege any negligence with regard to

ultrasounds, the Court reasoned that the

allegations were “sufficiently broad” to

make the proffered testimony relevant.

The Court recognized the general allegations “may have been susceptible” to a motion to make more definite and certain under ORCP 21 D; however, that issue was not before the Court because defendant had filed not such a motion. Based on its determination that the trial court committed reversible error by excluding the proffered testimony, the Court of Appeals reversed and remanded

the case for further proceedings. J

— Submitted by Abby K. Miller

Hodgkinson Street Mepham

A plaintiff does not waive the physician-patient privilege by answering, without objection, questions during his discovery deposition regarding treatment of physical condition

In Barrier v. Beaman, 361 Or 223 (March 9, 2017), the Oregon Supreme Court held that a plaintiff in a medical malpractice action does not waive the physician-patient privilege by answering questions during a discovery deposition concerning the treatment of a physical condition.

Plaintiff brought a claim for medical negligence against his former medical provider, alleging that he suffered injuries as a result of a foot surgery. During discovery, defendants sent plaintiff a request for production seeking plaintiff’s health care records for the past 10 years. After plaintiff produced the health care records, defendants served plaintiff with a notice of deposition. During his deposition, plaintiff answered questions about the details of the care and treatment he had received from different health care providers.

RECENT CASE NOTES


Recent Case Notes


Plaintiff did not object to the questions

regarding his care or treatment, nor did

he assert the physician-patient privilege.

Defendants then sought to take

the deposition of the health care

providers. Plaintiff objected, asserting

the physician-patient privilege. The

trial court granted defendant’s motion

to allow the depositions. Plaintiff then

petitioned for a writ of mandamus, and

the Oregon Supreme Court allowed

the petition. On mandamus review,

the Supreme Court directed the trial

court to vacate its order allowing the

depositions of plaintiff’s health care

providers.

In the mandamus proceeding,

there was no dispute that plaintiff

was the holder of a physician-patient

privilege under OEC 504-1(2). The

parties disagreed, however, as to

whether the privilege was waived

under OEC 511 after plaintiff voluntarily

disclosed during a deposition matters

relating to the treatment of a physical

condition. The Supreme Court agreed

that OEC 511 provides that evidentiary

privileges can be waived by “voluntary

disclosure,” but it held that “voluntary

disclosure” occurs only when the holder

of the privilege offers the witness to

testify about the privileged matter or

communication.

The Supreme Court concluded

that, for purposes of depositions, a

proponent “offers” a person as a witness

only when the proponent affirmatively

brings forward or presents the person

as a witness for testimony. Because

defendant had noticed plaintiff’s

deposition, and plaintiff was required

by ORCP 46 to attend, the Supreme

Court reasoned that plaintiff did not

“offer” himself as a witness merely by

answering questions at that deposition.

Notably, the Supreme Court

suggested that a plaintiff may be

able to invoke the physician-patient

privilege during a deposition and

refuse to answer questions regarding

medical treatment, despite the fact

that defense counsel already has been

provided with medical records. It is

unclear whether the decision will have

much practical impact moving forward,

at least in the context of medical

malpractice litigation, as plaintiffs will

ultimately waive the privilege prior to

trial by taking the defendant medical

provider’s deposition. However, defense

practitioners should be aware of the

ruling and the potential for obstruction

during discovery. J

— Submitted by Brandon Stuber

Davis Rothwell

Insurance Coverage

Oregon Supreme Court affirms that PIP does not cover ordinary transportation expenses

In Dowell v. Or. Mutual Ins. Co.,

361 Or 62 (Feb 16, 2017), the Oregon

Supreme Court held that the PIP

statutes, ORS 742.518 to 742.542, do

not require insurers to pay for ordinary

transportation costs as part of PIP

benefits.

In the underlying case, plaintiff

suffered injuries in a car accident.

Plaintiff submitted a PIP claim to

her insurer that included $430.67 in

personal transportation costs to attend

doctor’s appointments and retrieve

medication. Plaintiff’s insurer declined

to pay for the transportation expenses.

Plaintiff then sued the insurer for breach

of contract. The insurer successfully

moved for summary judgment. The

Court of Appeals and the Supreme Court

both affirmed.

The PIP medical benefit in ORS

742.542(1)(a) requires insurers to

provide a certain amount of no-fault

coverage for personal-injury related

“expenses for medical services” and

“ambulance” services. In considering

whether the statute covered ordinary

transportation costs, the Supreme

Court first noted that ORS 742.542(1)

(a) and other provisions in the PIP

statutes refer to services claimed by a

“provider,” which is a statutory term

meaning “a person licensed, certified

or otherwise authorized” to administer

medical or mental health services. ORS

742.801(13). The Court also noted that

ORS 742.542(1)(a) specifically provides

coverage for “ambulance” services,

but nothing in the PIP statute provides

for payment of ordinary transportation

costs. The Court viewed this exclusion

as knowing and intentional. Under

an ordinary meaning analysis of the

statute, ambulance services were the

only transportation expenses covered

by the statute.

The Supreme Court also examined

the legislative history of the statute.

That history confirmed that the PIP

statutes were intended to cover medical

expenses, i.e., the cost of professional

services provided by licensed or certified

health care providers and medications,

medical supplies, and equipment that

they have prescribed for the injured

motorists that they treat. Based on that

history, and the text and context of

RECENT CASE NOTES


Recent Case Notes


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“Representing Quality Physicians”

statute, the Supreme Court concluded

that the legislature did not intend

to provide coverage for ordinary

transportation expenses. In so holding,

the Court limited recovery of mileage

and other transportation costs often

sought by plaintiffs. J

— Submitted by Greg Lockwood

Gordon Rees

Personal Jurisdiction

Due process does not permit Oregon courts to exercise general jurisdiction over foreign corporations that are not “essentially at home” in Oregon

In Barrett v. Union Pac. R.R. Co.,

361 Or 115 (March 2, 2017), the Oregon

Supreme Court held that due process

permits Oregon courts to exercise

general personal jurisdiction over

a corporate defendant only if the

corporation is “essentially at home” in

Oregon.

Plaintiff, an Oregon resident,

sustained injuries while working for

a railroad in Idaho. Even though her

claim was unrelated to Oregon, plaintiff

brought an action against the railroad

in Oregon. The railroad moved to

dismiss plaintiff’s complaint for lack

of personal jurisdiction, but the trial

court denied the motion. The railroad

then successfully petitioned the Oregon

Supreme Court for a writ of mandamus.

On mandamus review, the Oregon

Supreme Court held that Oregon courts

lacked general personal jurisdiction

over the railroad to hear plaintiff’s

claim. The Supreme Court first observed

that the United States Supreme Court

clarified in Daimler AG v. Bauman, 134

S Ct 746 (2014), that “a substantial and

continuous business presence” within

a state is insufficient to give rise to

general jurisdiction over a corporate

defendant. Instead, Daimler adopted

a new test providing that general

jurisdiction is permissible only where

a defendant is “at home” in a state.

Although Daimler did not foreclose the

possibility that a corporate defendant

may be “at home” in other places,

Daimler instructed that a corporate

defendant ordinarily is “at home” for

purposes of general jurisdiction only in

its place of incorporation and principal

place of business.

Applying Daimler to the case, the

Supreme Court held that Oregon could

not exercise general jurisdiction over the

railroad because the railroad’s activity

in Oregon was only a small part of its

operations. The railroad’s principal

place of business was in Nebraska,

and it was incorporated in Delaware.

The railroad’s activities in Oregon also

were less than its activities in other

states. Consequently, the railroad’s

“substantial and continuous business

presence” in Oregon was not enough

to establish general jurisdiction. The

Supreme Court also held that the

Federal Employees Liability Act, 45 USC

§ 56, also did not purport to confer

Oregon courts with general jurisdiction

over interstate railroads doing business

in the state. Based on those conclusions,

the Supreme Court issued a peremptory

writ directing the trial court to vacate

its order denying the railroad’s motion

to dismiss. J

— Submitted by Jessica Wilcox

Smith Freed Eberhard PC

RECENT CASE NOTES


Recent Case Notes

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Foreign corporations in compliance with ORS 60.731(1) do not automatically consent to the jurisdiction of the Oregon courts

In Figueroa v. BNSF Ry. Co., 361 Or

142 (March 2, 2017), the Oregon Supreme

Court held that foreign corporations do

not automatically consent to general

personal jurisdiction in the Oregon

courts by complying with ORS 60.731 and

appointing a registered agent to receive

service of process in Oregon.

P la int i ff was a re s ident of Washington who was injured while working on a locomotive for her railroad employer in Washington. Although her claim arose in Washington, plaintiff filed her action in Oregon based on her assertion that Oregon courts have general personal jurisdiction to hear any and all claims against the railroad. In support of jurisdiction, plaintiff argued that the railroad engaged in substantial and continuous activities in Oregon. Plaintiff also argued that the Federal Employees Liability Act, 45 USC § 56, authorized the exercise of personal jurisdiction and that the railroad consented to general jurisdiction in

Oregon by complying with Oregon’s

business registration statute.

On mandamus review, the Oregon

Supreme Court rejected all of plaintiff’s

jurisdictional arguments. Citing its

decision in the companion case of Barrett

v. Union Pac. R.R. Co., 361 Or 115 (2017),

the Supreme Court concluded that

plaintiff’s first and second arguments

failed as a matter of law. Like the

defendant in Barrett, the railroad in

this case was a foreign corporation with

its place of incorporation and principal

place of business in another state.

Although the railroad did substantial

business in Oregon, the railroad was

not “at home” in Oregon as required

by Daimler AG v. Bauman, 134 S Ct

746 (2014), for the exercise of general

jurisdiction.

The Supreme Court also rejected

plaintiff’s consent argument. Plaintiff

contended that, by appointing a

registered agent in Oregon, a foreign

corporation impliedly consents to

general jurisdiction in Oregon courts on

any and all claims. The Court disagreed,

holding that “appointing a registered

agent to receive service of process merely

designates a person upon whom process

may be served.” After reviewing the

text, context, and history of the statute,

the Supreme Court concluded that

compliance with ORS 60.731 does not

constitute implied consent to general

jurisdiction and does not authorize

Oregon courts to exercise general

jurisdiction over claims unrelated to the

defendant’s activities in the state. Based

on that conclusion, the Supreme Court

issued a writ of mandamus directing the

trial court to vacate its order denying the

railroad’s motion to dismiss. J

— Submitted by Jessica Wilcox

Smith Freed Eberhard PC


PETITIONS FOR REVIEW

Petitions For ReviewSara kobak, Schwabe Williamson & Wyatt Pc

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.


Employment Lawn acn opportunity, llc v. employment

dep’t, s064344 (a152977), 278

or app 697 (2016). argument

scheduled for may 12, 2017.

The Oregon Court of Appeals

affirmed a final order of an administrative

law judge finding that petitioner was an

employer required to pay unemployment

insurance tax on earnings paid to

petitioner’s “independent business

owners.” On review, the issues are: “(1)

Under ORS 670.600(3)(a), does the term

‘maintain’ require a putative employer

to show that an alleged independent

contractor’s business is conducted on

property that the contractor owns or

for which the contractor is personally

responsible?; (2) Under ORS 670.600(3)(e),

must a putative employer show that an

alleged independent contractor’s hiring

and firing authority is not subject to any

limitation by the putative employer?; and

(3) In enacting ORS 657.087(2), did the

legislature intend to require a putative

employer to establish the precise extent

to which a direct seller’s sales occurred

specifically in the home of the seller or

the buyer?”

Civil Proceduren ransom v. radiology specialists of

the northwest, s064309. argument

scheduled for june 23, 2017.

This original mandamus proceeding

arises from a medical negligence action. On

review, this issue is whether a defendant’s

“physician-employee, or physician who is

a direct, and possibly only, defendant in

a malpractice case, may refuse during a

discovery deposition to answer questions

regarding medical treatment or care they

provided to a plaintiff based upon a claim

that the deponent is an ‘expert witness’

whose opinions are privileged, and thus

not discoverable, under the Oregon Rules

of Civil Procedure or the Oregon Evidence

Code.”

Contractsn claudia porter and Harry H. porter,

iii, s064498 (a154656), 281 or app

169 (2016). argument scheduled for

september 18, 2017.

The Oregon Court of Appeals affirmed

a trial court’s ruling concluding that a

premarital agreement was unenforceable

because wife signed it involuntarily and

because it was unconscionable. On

review, some of the primary issues are:

(1) “If a party signs a contract without

reading it carefully or consulting a lawyer

and no one prevented the party from

reading it or pressured the party to sign

it, is the signature not voluntary because

the party later testifies that she did not

understand the contract?”; and (2) “Does

a party who signs a contract have less

responsibility to determine the meaning

of that contract before the party signs

it if he or she does not have personal

experience in legal matters and is not

familiar with legal terminology?”

Municipal Lawn International Longshore and

Warehouse Union v. Port of Portland,

s064608. argument scheduled for

september 19, 2017.

The Oregon Supreme Court accepted

the following certified question from the

United States Court of Appeals for the Ninth

Circuit: “Does a municipal corporation that

holds its tax and non-tax revenues in the

same bank account but that segregates the

revenues through financial management

and accounting techniques violate Article

XI, section 9, of the Oregon Constitution

when the municipal corporation uses its

funds to finance programs that benefit

private enterprise if the programs contain

neither, one, or both of the following two

contractual provisions: (1) the municipal

corporation certifies that it will not use

tax revenue to fund the programs; (2) the

program beneficiaries waive any right

to make a claim against the municipal

corporation’s tax revenue to satisfy


PETITIONS FOR REVIEW

Register Today for the OADC Annual ConventionWe have a fantastic line up of speakers for our big 50th celebration this year, including...

“From the Nixon White House to Trump Tower: the Perspective of White House Counsel”John Dean, Richard Nixon’s White House Counsel, and Jim Robenalt, lawyer and presidential scholar, have teamed up to create a fascinating ethics-related CLE. Dean and Robenalt use White House tapes and historic films to bring the story to life and show how Nixon’s psychological biases worked to bring down his presidency. Now with President Trump in office, Dean and Robenalt have tailored their 3-hour CLE to address issues of Executive Power and the relationship between the Executive and the two other branches of government. The presentation will also provide an overview of the ethical duties and reporting obligations of lawyers representing organizations under difficult circumstances.

“A New Model for Trial Persuasion”Richard Gabriel is a nationally recognized speaker at legal CLE events, including the American Bar Association, and

has appeared regularly on ABC, NBC, CNN, Fox, and NPR as a commentator on high-profile trials. He is the president of Decision Analysis, a leader in the field of jury research, jury selection, and litigation communication. He will be speaking on a “new model for trial persuasion” which can be implemented effectively by our defense bar.

“Oregon Innocence Project”Steve Wax, Legal Director at the Oregon Innocence Project (OIP), offers moving insight and energetic commentary into the other side of the law in our state which keeps our courts extremely busy: the role of ensuring criminal prosecution and defense complies with our nation’s constitutional protection. Mr. Wax is a dynamic speaker who, through case examples of mistaken witness identification, false confessions, and invalid or improper forensic science, offers this presentation of tools and strategies for effective trial presentation for civil defense lawyers as well.

Convention RegistrationInformation and registration is available on the website www.oadc.com.

Questions? Contact OADC at [email protected] or 503.253.0527 or 800.461.6687 • Register online at www.oadc.com

ORegON AssOCIATION OF DeFeNse COuNsel2017 ANNuAl CONveNTION

OADC—Celebrating 50 Years of service to the Defense Bar

June 15-17, 2017 | Sunriver Resort | Sunriver, Oregon

Photo by Damon L. Henrie

the municipal corporation’s program

obligations?”

Workers’ Compensationn Sheldon v. US Bank, s064478

(a156285), 281 or app 560, 381 p3d

1006 (2016). argument scheduled

on september 21, 2017.

The Oregon Court of Appeals

vacated and remanded a decision of

the Workers’ Compensation Board

based on its conclusion that the board

had applied an incorrect legal standard.

On review, the issues are: “(1) In

workers’ compensation claims involving

unexplained falls in the course of

employment, what analytical standard

or statutory limitations govern the

Board’s determination of whether the

worker has persuasively eliminated

idiopathic causes of a workplace fall for

purposes of inferring work causation

pursuant to Phil A. Livesley Co. v.

Russ, 296 Or 25, 672 P2d 337 (1983)?;

(2) Did the 1987 amendment to ORS

656.266(1) overrule Livesley, and if so,

to what extent?; (3) If, notwithstanding

ORS 656.266(1), the Livesley inference

of work causation remains available

to workers injured in unexplained

workplace falls, does it operate as a

permissive fact-finding device or as a

conclusive determination?; and (4) What

standard applies to determinations of

whether the worker has persuasively

eliminated idiopathic causes?”


The scribe’s Tips

The Scribe’s Tips for Better Writingby dan Lindahl

Bullivant Houser Bailey PC

Dan Lindahl

tips as Such

Words and phrases wax and wane

in popularity over time. To use a silly

example, according to Google Ngram,

“groovy” was almost completely unused

until about 1965. Its frequency of use

then soared, peaking in 1971 before

steadily declining until 1985, when it

inexplicably began regaining favor,

although never again approaching the

frequency of usage attained at its high

point in the early 1970s.

“Incentivize” is another, and

particularly unfortunate, example

of a word that has experienced a

dramatic change in frequency of usage.

According to Google

Ngram, the word had a

zero percent frequency

o f u s a g e b e f o r e

1953. In other words,

“incentivize” didn’t

even exist as a word.

Beginning in the early

1960s, the word emerged, but remained

rarely used. Then in 1990 the word took

off and has seen an exponential increase

in the frequency of usage since then.

Which brings us to the phrase

“as such.” The Scribe has been seeing

this phrase more frequently recently,

especially in materials prepared by

younger lawyers. The problem with “as

such” is not the frequency with which

it is used. Instead, the problem is the

frequency with which it is misused.

Many writers use “as such” as an

all-purpose transitional phrase and

substitute for “therefore” or “thus.”

Here are some examples where “as

such” is used in place of “thus” or

“therefore”:

• Sally arrived late for the deposition;

as such, she missed the first hour of

testimony.

• Bob failed to buy enough lobster;

as such, many of his guests dined on

hot dogs.

Although distressingly common,

this is not the correct way to use “as

such.” Proper usage requires that “such”

have an identifiable antecedent. Here

are a couple examples of how to use

“as such” correctly:

• Faber College is a private university;

as such, it receives no public fund-

ing.

• Ted is a convicted felon; as such, he

is ineligible to vote.

legislative update


Legislative Updateby rocky dallum, tonkon torp LLP

OADC Lobbyist

Rocky Dallum

July 10th marks the Constitutional

deadline for the Oregon legislative

assembly to adjourn, but as of publication

deadline it is still unclear how the

session will end. Policy makers are

wrestling with some major budgetary

challenges and ever-evolving discussions

over tax reform. In

addition, legislators

a r e p r o p o s i n g a

major transportation

investment package,

but the polit ics of

all three issues are

inextricably linked and

any new tax requires a 3/5th’s super-

majority vote. As leadership works

to garner enough votes to pass its

priorities, a variety of contentious

policy issues hang in the balance. Some

observers are already speculating about

a special session later in 2017.

Lawmakers are struggling to find

ways to fund our state services in light

of reduced federal dollars for Medicaid

coverage, growing Public Employee

Retirement System liabilities, and

several ballot measures approved in

November. The state would need around

$1.2 billion in additional revenue to

cover state services at the same level

as 2015-2017. The fiscal challenges

may be meaningful to the courts,

as budget writers look to fund the

Oregon Judicial Department, provide

enough judges to each county (as

several are requesting more), and fund

several major courthouse renovation or

construction projects.

Several groups of Democrats from

both chambers have proposed various

proposals to eliminate the corporate

excise tax, reduce personal income tax

rates, and tax companies on their gross

receipts in Oregon. As of publication,

it is unclear if any have a path, but the

Governor’s staff and key legislators are

reaching out to various industries to

gather feedback on the proposals and

are working to garner votes in each

chamber. In addition, in mid-May, state

economists announced that a kicker

refund is likely due to taxpayers, as tax

revenues exceeded the expectations for

the 2015-2017 biennium.

Lawmakers also continue to debate

a major transportation investment

package that would increase title and


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legislative update


legislative updatecontinued from page 24

registration fees, implement a phased-in

gas tax increase, impose an employee

payroll tax, and tax bike sales. Expected

to generate over $5 billion if adopted,

the package aims to address congestion,

provide better maintenance capabilities

to cities and counties, fund rural and

metro-area transit options, and build

new pedestrian and bike paths. Due to

the new taxes, the package also needs a

super-majority vote to pass, and while the

details are unclear, it likely will be one of

the last votes taken this session.

The biggest policy issue of interest to

OADC late in session is the proposals over

non-economic damages. And just like

the budget, revenue, and transportation

discussions, the bills are ever changing

and the outcome unclear as the session

winds down. The Oregon Trial Lawyers

Association has led efforts to amend

two bills, Senate Bill 737 and House Bill

2807, to change or remove limits on non-

economic damages in cases other than

wrongful death actions. The debates

have been contentious and accompanied

with drama as one bill was sent to the

Senate floor for a vote and then re-

routed when it lacked the votes to pass.

OADC’s Government Affairs Committee

has monitored proceedings closely to

apprise members of developments. As our

policy makers jostle for votes on major tax

and transportation proposals, legislators

leverage controversial bills like these

against other difficult votes.

While projecting the outcome of

any legislative session is difficult, 2017

has been particularly perplexing. Even if

the public gets some clarity by late June,

there’s a good chance some of these issues

will remain unresolved, leaving them

open for resolution in 2018 or during a

special session later in the year.

The Oregon Association of Defense Counsel state Political Action Committee (PAC)The Voice of the Civil Defense LawyerThe Oregon Association of Defense Counsel works to protect the interests of its members before the Oregon legislature, with a focus on:

• Changes in civil practice and the court system

• The judiciary and trial court funding

• Tort reform

• Access to justice

The Oregon Association of Defense Counsel has a compre hensive government affairs pro gram, which includes providing effective legislative advocacy in Salem.

We need your help and support to continue this important work. All donations to the OADC State PAC go to directly support our efforts to protect the inter ests of the Civil Defense Lawyer.

Your contribution to the Oregon Association of Defense Counsel State PAC will support OADC’s efforts in legislative activities and government affairs.

To make a contribution please contact the OADC office to receive a donation form at 503.253.0527 or

800.461.6687 or [email protected]

ASSOCIATION NEWS


Association News

2017 annual conventionJune 15-18, 2017Sunriver Resort, OR

defense Practice academy & Judges reception

September 28, 2017Schwabe Williamson & Wyatt Portland, OR

Fall SeminarNovember 9, 2017Sentinel Hotel - Portland, OR

calendarMichael Lehner ......................... 2016Gordon Welborn ...................... 2015Dan Schanz ............................... 2014Michael (Sam) Sandmire .......... 2013Greg Lusby ................................ 2012Jeanne Loftis ............................. 2011Drake Hood .............................. 2010Julie Elkins ................................ 2009Bill Sime .................................... 2008Chris Kitchel .............................. 2007Robert Barton ........................... 2006Hon. Mark Clarke ..................... 2005Martha Hodgkinson ................. 2004James Edmonds ........................ 2003Stephen Rickles ......................... 2002Steven Blackhurst ..................... 2001Jonathan Hoffman ................... 2000Chrys Martin ............................. 1999Thomas H. Tongue ................... 1998Paul Fortino .............................. 1997Larry A. Brisbee ........................ 1996Frank E. Lagesen ....................... 1995Robert E. Maloney, Jr. .............. 1994Keith J. Bauer ........................... 1993Michael C. McClinton ............... 1992Ronald E. Bailey ........................ 1991John H. Holmes ......................... 1990John Hart .................................. 1989Carl Burnham, Jr. ...................... 1988James H. Gidley ....................... 1987Ralph C. Spooner ...................... 1986G. Marts Acker .......................... 1985James L. Knoll ........................... 1984Walter H. Sweek ....................... 1983James F. Spiekerman ................ 1982Hon. Malcolm F. Marsh ............ 1981Austin W. Crowe, Jr. ................. 1980Richard E. Bodyfelt ................... 1979Robert T. Mautz ........................ 1978Douglas G. Houser .................... 1977Hon. Rodney W. Miller ............. 1976David C. Landis ......................... 1975William V. Deatherage ............. 1974Frederic D. Canning .................. 1973Wayne Hilliard .......................... 1972Roland (Jerry) F. Banks ............. 1971Jarvis B. Black ............................ 1970Thomas E. Cooney .................... 1969James B. O’Hanlon ................... 1968Hon. Robert Paul Jones ............ 1967

oadc past presidents

All programs are subject to change

Register at www.oadc.com

jamie azevedo stremmingBodyfelt Mount LLP

cavan daviesFrohnmayer Deatherage

tracy frazierBullivant Houser Bailey PC

naomi johnsonBullard Law

jakob lutkavage-dvorscakDavis Rothwell Earle & Xóchihua

florence maoGordon & Rees LLP

tricia olsonHeltzel Williams PC

jonathan rueHart Wagner LLP

Karin schafferBuckley Law PC

new membersoadc welcomes the following new and returning

members to the association:

Defense victory!


Defense Victory!eric e. Meyer, elkins, zipse & Mitchell

Defense Victory! Editor

Social Host Liability

Jim Hiller of Hitt Hiller Monfils

Williams obtained a defense verdict

in a social host shooting case. In Baker

v. Croslin, defendant hosted a BYOB

gathering of friends. Two of the guests,

each of whom had a blood alcohol

content of over .15, began practicing

self-defense techniques with defendant.

One of the guests fired a gun that he

wrongly believed to be unloaded and

killed another guest. The decedent’s

estate sued defendant on the social host

theory that he had served alcohol to

the guest who had fired the gun while

that guest was visibly intoxicated and

that defendant was therefore liable

for the shooting. The shooter, who was

originally named as a codefendant,

reached settlement with the decedent’s

estate prior to trial.

Following remand from the Oregon

Supreme Court, which affirmed the

Court of Appeals (reversing summary

judgment on the issue of whether

a social host can be held liable for

“serving” alcohol brought to a party

by another person), a five-day trial was

held in Multnomah County. Plaintiff

was represented by Jan Kitchel. The

jury found that defendant had not over-

served the shooter while he was visibly

intoxicated and entered a defense

verdict.

Bifurcation of Medical

Malpractice and Negligent Credentialing

Claims

John Hart and Colleen Scott of

Hart Wagner LLP and Peter Tuenge

and Sara Cassidey of Keating Jones

Hughes PC prevailed before Multnomah

County Judge Adrienne Nelson on

a motion to bifurcate the trial of an

underlying medical negligence claim

from a concurrently filed negligent

credentialing claim. Plaintiff was

represented by Jane Paulson and Travis

Eiva.

Plaintiffs have increasingly filed

claims alleging that an individual

physician has been such a “bad actor”

that the hospital or clinic involved should

not have extended him/her privileges.

Defendants successfully argued that

bifurcation would prevent prejudicial

admission of “prior bad acts” evidence in

the underlying medical negligence trial,

and would promote judicial economy

by potentially obviating the need for

a trial of the negligent credentialing

claim. If the jury in the malpractice claim

found no negligence or determined that

plaintiff had not been damaged, then it

would resolve the case without the need

for a complicated trial on the negligent

credentialing claim.

Judges Eric Bergstrom of Multnomah

County, Alta Brady of Deschutes County,

and Jonathan Hill of Tillamook County

have recently issued similar orders.

Arbitration / Wrongful

Initiation of Civil Proceedings

Elizabeth Lampson and Jonathan

Henderson of Davis Rothwell Earle &

Xóchihua PC prevailed on a motion for

summary disposition before arbitrator

Met Wilson in a claim of wrongful

initiation of civil proceedings. Plaintiff

was represented by Donald Upham and

Richard Sause.

P l a i n t i f f a l l e g e d t h a t s h e

was wrongly named as third-party

defendant in a liquor liability lawsuit

and contended that there was no basis

to assert an indemnity claim against

her in that context, seeking nearly $1

million in emotional distress damages.

The parties cross-moved for summary

disposition. The arbitrator agreed with

defendant that plaintiff’s claim failed

on both the probable cause and malice

elements of her claim, and granted

defendant’s motion.

▼


OADC Celebrating 50 Years of Fellowship

▼


CELEBRAT ING

y e a r s

1967-2017OADC

▼


The Honorable Stacie F. Beckerman

was appointed to her position as

Magistrate Judge in January 2015, which

makes her one of the newer judges in

the U.S. District Court for the District of

Oregon.

In the time since her appointment,

Judge Beckerman has earned a reputation

for hard work, which especially shows

in her preparation. Judge Beckerman,

who grew up in Cedar Rapids, Iowa,

attributes her work ethic to a Midwestern

upbringing. Or, to paraphrase Her Honor,

if you have ever shucked corn, putting

effort into anything that is not corn

shucking is easy to do.

Judge Beckerman attended the

University of Iowa, earning a BA in

Political Science in 1995. Originally on a

pre-med track, Judge Beckerman, whose

father was an attorney, thought better

of being a doctor and decided on law

school instead. She attended Harvard Law

School and graduated cum laude in 1998.

After law school, Judge Beckerman

worked as a “D.C. lawyer” for about a

year in Washington. Then, from 1999

through 2006, she was a securities

litigator for Skadden Arps, first in

Boston, and then in Palo Alto. While she

liked litigation, Judge Beckerman tired

of the hours required, the cancelled

vacations, some of the tedious and

inefficient discovery practices that came

with the territory, and the acrimony

between opposing litigators seemingly

everywhere (except Oregon, of course).

After having her first child (she now

has two sons), Judge Beckerman decided

on a change in career paths. But first, she

and her husband, a physician, went “city

shopping,” and selected Portland. On

moving to Portland, Judge Beckerman

first handled appeals for the Appellate

Division of the Oregon Department of

Justice, where she learned a considerable

amount of Oregon law.

In 2008, Judge Beckerman became

an Assistant U.S. Attorney, a job she

pursued at least partly to gain the sort

of trial experience she could not get

as a litigation associate in a big firm.

Judge Beckerman enjoyed that position

quite a bit, and she strove to be—and

succeeded at being—an evenhanded

prosecutor. A large part of her caseload

involved prosecuting child pornography

and sex-trafficking cases, however, which

became increasingly difficult for her

over time. She ultimately realized she

did not want to continue indefinitely

on that track, and so she applied for the

magistrate position previously occupied

by Magistrate Judge Hubel.

Amid all this, Judge Beckerman has

maintained a humbling record of pro

bono and volunteer work, of which she is

obviously and justifiably proud. This work

includes having litigated civil rights cases

in addition to her normal workload at

Skadden Arps, serving as president of the

Multnomah County Chapter of Oregon

Women Lawyers, and volunteering her

time weekly for one-on-one reading

sessions with kids for the Start Making a

Reader Today (SMART) program, just to

name a few.

Judge Beckerman “loves” her

(relatively) new job. But she doesn’t enjoy

everything about it.

High on the list of things she doesn’t

enjoy are lawyers who refuse to participate

in settlement conferences in good faith,

which is incredibly “frustrating” to her.

Lawyers should agree to a settlement

conference with Judge Beckerman only if

Judge’s Biohon. Stacie F. beckerman, Magistrate JudgeU.S. District Court for the District of Oregon (Portland Division)

Hon. Stacie F. Beckerman, Magistrate Judge


▼


The VerdictTM

editorseditor in chieFJeanne Loftis Bullivant Houser Bailey PC888 SW 5th Ave., #300 Portland, OR 97204 503/499-4601 [email protected]

Feature articLeS editorStephen yoshidaMB Law Group LLP117 SW Taylor St, #200Portland OR 97204503/[email protected]

caSe noteS editorSara kobakSchwabe Williamson & Wyatt PC1211 SW 5th Ave., #1900Portland OR 97204503/[email protected]

deFenSe Victory! editoreric MeyerElkins Zipse & Mitchell4380 SW Macadam Ste 350Portland OR 97239503/[email protected]

JudGeS bio editorJulie a. SmithCosgrave Vergeer Kester LLP888 SW 5th Ave., #500Portland OR 97209503/[email protected]

the Scribe’S tiPS editor dan LindahlBullivant Houser Bailey PC 888 SW 5th Ave., #300 Portland, OR 97204503/499-4431 [email protected]

editoriaL aSSiStant Stephanie WilkenBullivant Houser Bailey PC 888 SW 5th Ave., #300 Portland, OR 97204503/499-4490 [email protected]

they are genuinely interested in settling

as opposed to, say, using a settlement

conference to one-up the other side.

One reason failed settlement

conferences can be so frustrating is the

significant amount of time judges spend

preparing for and participating in them.

Like her colleagues on the federal bench,

Judge Beckerman has an “intense”

workload. When lawyers wonder why

an opinion is taking so long, it’s usually

because the judge has a stack of other

opinions to write, too.

This workload also explains why

Judge Beckerman would like lawyers to

refrain from submitting supplemental

br ief ing, despite how general ly

“impressed” she is with the quality of

legal writing she sees. If Judge Beckerman

needs extra briefing on an issue, she

will ask for it; if she has not asked for it,

lawyers should assume she does not want

it, much less need it. Trying to get the

last word in will neither help your cause

nor leave you in the Judge’s good graces.

Following instructions will also serve

litigants well, especially ones the judge

has personally thought fit to issue. Of

particular note is Judge Beckerman’s

instruction to be cordial, including in the

briefing, where, as the Judge instructs,

lawyers should avoid the off-putting

snark.J

— Submitted by Blake H. Fry

Mersereau Shannon LLP

• Customized Options• Expert Advice• Track Record of

Excellence

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• Wide Array of Experts• Flexible Locations

1-888-303-6224Celebrating 20 years in the IME Business

judge’s biocontinued from page 30

Amicus updAte


Amicus UpdateLindsey hughes

Chair, OADC Amicus Committee

The OADC board has determined that the interests of the membership are served by an active Amicus Committee.

The OADC Amicus Committee has

responsibility for reviewing requests

for amicus participation in Oregon

appellate courts on issues of significance

to the members of OADC. Current

committee members are Tom Christ, Dan

Lindahl, Michael Estok, Janet Schroer,

Mike Stone, Lindsey Hughes (Chair) and

Lloyd Bernstein (Board Liaison).

The Committee most frequently

appears in cases pending in the Oregon

Supreme Court, although we do write

for particularly compelling issues in the

Court of Appeals. Issues on which we

have participated in the past couple of

years have included the following:

• Fountaincourt Homeowners v.

Fountaincourt Development1—

whether an insurer who defended

a claim against its insured under

a reservation of rights is bound

by a verdict for the claimant in a

later action between the insurer

and insured (or the insurer and the

claimant) to determine coverage for

the damages awarded (Tom Christ

for OADC)

• Wyers v. AMR2—the proper con-

struction of ORS 124.100 (the vul-

nerable person statute) when the

claim is that the defendant know-

ingly acted or failed to act when ob-

jectively aware of another’s abuse

of a vulnerable person (Lindsey

Hughes for OADC)

• Smith v. Providence—whether a

theory for a loss of chance for a

better outcome must be rejected

in light of Oregon law of causation

and the requirement that a defen-

dant’s conduct was the probable

cause of a plaintiff’s harm (Mike

Stone for OADC)

Most recently, OADC appeared as

amicus in Ransom v. Radiology Specialists

of the Northwest, S. Ct. No. S064309. The

issue raised in this mandamus proceeding

is whether professionals (physicians)

may be compelled to provide expert

testimony by answering questions that

call on them to form present opinions

in discovery depositions.

Directions for submitting a request

for amicus support are listed on the

OADC website at www.oadc.com/

amicus-committee. We encourage the

submission to include an explanation of

the issues of interest to the membership

as well as a description of why amicus

support is appropriate and in what way

you would like amicus support to be

focused. The submission may be made

by e-mail with copies of pertinent trial

court memoranda and appellate briefs

attached. The member email addresses

are listed on the OADC web page.

Following receipt of a submission,

the Committee reviews the briefing

and then meets to discuss whether the

case is appropriate for amicus support.

Typically we meet within a week or 10

days of the submission. We will work

to meet tighter timelines, but the more

lead time the committee has, the more

likely we will be able to recruit an

author in the event we elect to move

forward with a brief.

Currently, the Amicus Committee

has room for additional members. If you

have significant appellate experience

and would like to serve OADC by

participating on this Committee, please

contact Lindsey Hughes. The work is

challenging and the company is great.

Appointments are subject to Board

approval. Even if you are not currently

in a position to accept an appointment,

if you would like to be considered to

author a brief as the need arises, please

let one of us know, and we will keep

your information in the resource bank.

endnotes

1 360 Or 341 (2016).

2 360 OR 211 (2016).

▼


OADC Thanks our2017 Sponsorship Partners

Oregon Associationof Defense CounselOADC

147 S.E. 102ndPortland, Oregon 97216

Trial Lawyers Defending You in the Courts of Oregonprsrt stD

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portland, Orpermit No. 3664