Plaintiff, as conservator of estate of her minor child, brought a medical negligence action against a hospital and physician for the alleged failure to recognize the signs of fetal distress. At birth, in 1994, the baby was unresponsive and required neonatal resuscitation. Although he appeared to develop normally, in 1999, he was diagnosed with neurological disorders. Plaintiff filed her action in 2003 and the trial court granted defendants’ motions to dismiss based on the five-year limitation period in ORS 12.110(4). The Court of Appeals affirmed and plaintiff took the case before the Oregon Supreme Court. Lindsey Hughes filed a joint defense brief and argued the cause on behalf of the physician-defendant.

Plaintiff argued the statute of repose violates the remedy clause of the Oregon Constitution, Article I, section 10. The Supreme Court determined that the two-year statute of limitations began to run at the time of diagnosis in 1999, not when the mother suspected negligence shortly after her son’s birth. Next, the court held that the five-year limitations period under ORS 12.160 was not tolled by the child’s minority. Finally, the court held the five-year repose period was not an unconstitutional limitation and therefore did not violate the remedy clause.

Decedent’s personal representatives brought a wrongful death action against defendants in Multnomah County, where decedent died. The parties agreed the alleged negligence which caused decedent’s death occurred in Marion County, and that all defendants resided in Marion County. Nonetheless, plaintiff asserted that proper venue was in Multnomah County, where the decedent died. Peter Tuenge wrote the Supreme Court brief, and Lindsey Hughes argued the case before the court.

The Oregon Supreme Court determined that the language, “where the cause of action arose,” as used in ORS 14.080, means for purposes of a wrongful death action, that proper venue is either in the county in which the wrongful act or acts that ultimately resulted in decedent’s death occurred.

Plaintiff brought a wrongful death action under ORS 30.020, against the hospital, physicians and clinic involved in her husband’s care, alleging the physicians failed to diagnose and treat the stroke that led to his death. The trial court directed a verdict in defendants’ favor, holding that plaintiff did not meet her burden regarding causation. Rather, the expert could only testify that, at best, alternative treatment might have improved the outcome. The Court of Appeals affirmed and plaintiff appealed. Lindsey Hughes argued the case and filed joint briefs on behalf of one of the physician defendants.

First, the Oregon Supreme Court considered whether “but for” or the “substantial factor” standard on which plaintiff relied was the appropriate standard. The Court reviewed the historical application of the two standards and determined that the “but for” test, in which a plaintiff must prove a defendant’s negligence “more likely than not caused the plaintiff’s harm” applied to most cases, including the one at issue. Any lesser standard would impermissibly allow a plaintiff to recover for mere possibilities.

Second, the Court considered whether an expert’s testimony that certain conduct “probably increased” a chance of death – what the court termed a “lost chance of survival theory” – is sufficient to create a jury question on causation. In contrast with courts in other jurisdictions, the Court declined to adopt this theory in cases brought under the wrongful death statute. The court held mere increased risk of death is not the injury provided for by ORS 30.020, preventing plaintiff’s expert from testify that defendants’ alleged negligence did anything more than create a possibility of decedent’s death.

Plaintiff sued a health system alleging negligent medical care caused the wrongful death of her daughter. The jury awarded plaintiff $1 million in non-economic damages, but ORS 31.710 operated to reduce the non-economic damages award to $500,000. Plaintiff appealed, arguing the statutory cap on non-economic damages violated her right to a jury trial and right to a remedy under the Oregon Constitution. The case came before the Oregon Supreme Court. Lindsey H. Hughes filed an amicus brief in the Supreme Court on behalf of the Oregon Association of Defense Counsel.

The Supreme Court upheld the $500,000 statutory cap on non-economic damages as applied to wrongful death cases. The Supreme Court determined that the statutory damages cap, ORS 31.710, did not abolish a remedy that existed in Oregon common law at the time the Oregon Constitution was adopted. Because the common law did not allow claims for wrongful death, the legislature could limit the amounts recoverable in wrongful death cases without running afoul of the remedy clause of the Oregon Constitution. Likewise, because there was no pre-existing substantive common-law right to recover any amount of damages for wrongful death, the Court found that the cap on damages in a wrongful death action does not unconstitutionally interfere with the jury’s determination of damages.

The widow and adult children of a worker killed in a mining accident brought a wrongful death action against the employer. The trial court dismissed based on defendant’s argument that the exclusivity provision of the Workers’ Compensation Act barred an action against an employer for wrongful death. Plaintiffs appealed, arguing the exclusivity provision violated their constitutional guarantee to a remedy for an injury. The Court of Appeals affirmed the trial court’s decision and the Oregon Supreme Court accepted review. Lindsey Hughes filed a brief on behalf of amicus curiae Oregon Association of Defense Counsel.

Plaintiffs argued that the statute, as applied to them, violated the remedy clause of the Oregon Constitution. The court examined whether plaintiffs alleged an injury to a right protected under the remedies clause. The court focused on the meaning of the term “property” to determine if plaintiffs’ alleged injury fell within the accepted meaning of “personal property.” Plaintiffs alleged a loss of “services and financial assistance,” but not that they were dependent on the decedent for financial support, or had a legal right to his income. The question for the court then was whether services and financial assistance to a parent and adult child of a person allegedly killed as the result of the negligence of his employer, is a property injury. The Court recognized that the loss to plaintiffs was an important loss, but held it was not a loss of property interest for which Article I, Section 10 guarantees a remedy. The court affirmed the decisions of the trial court and Court of Appeals.

The personal representative for the estate of the decedent, a Washington resident, concurrently filed virtually identical wrongful death actions against an Oregon defendant in both the Western Washington and Oregon federal district courts. The Oregon court dismissed the claims based on Oregon’s statute of limitations and repose. The Washington court subsequently dismissed the case based on Oregon’s statute of limitations and repose, and on collateral estoppel grounds. The personal representative appealed both cases to the Ninth Circuit Court of Appeals, which consolidated the appeals. The primary issues on appeal were whether the Washington court erred by not applying Washington law and, in the alternative, that if Oregon law did apply, then the Court of Appeals should strike down Oregon’s statutes of limitations and repose as unconstitutional under the United States Constitution. Lindsey Hughes filed the brief and argued the case for the defendant Hospital.

The Ninth Circuit court affirmed the district courts’ decisions. The court held application of the statute of repose depends on which state’s substantive law is being applied to the case. The court agreed with defendant that Oregon had the “most significant relationship” to the case and Washington did not have a substantial enough interest in having its law applied. The court applied Oregon’s statutes of limitations and repose and upheld the defense victory in both forums.

The court likewise denied the plaintiff-appellant’s request that Oregon’s statutes of limitations and repose be found unconstitutional under the Equal Protection and Due Process clauses of the United States Constitution. The court, applying a rational basis review to the statutes, held that they are reasonably related to legitimate government interests and therefore do not violate or deprive persons of their Constitutional protections or rights.

Plaintiffs, husband and wife, brought a medical negligence action against a physician for alleged injuries resulting in the wife’s inability to become pregnant. Two weeks before trial, plaintiffs filed a motion to use their expert physician’s discovery deposition in the event he was unavailable to testify at trial. The trial court heard arguments on plaintiffs’ motion on the day of trial. Plaintiffs argued the rules permitted them to use the deposition of their expert witness, in the event he was unavailable to testify at trial, because he resided more than 20 miles from the place of trial and lived out of the country. Defendants objected that plaintiffs could not use defendant’s discovery deposition of their expert for proof at trial. The trial court agreed and ruled they could not use the deposition. Plaintiffs were granted a continuance on condition they pay defense fees and court costs resulting from the continuance. Plaintiffs appealed and Peter Tuenge wrote the brief and argued the cause for defendants.

The Court of Appeals held that the trial court did not abuse its discretion in granting the continuance on condition of payment of defense fees because plaintiffs waited until just two weeks before trial to file their motion to use the deposition. This forced the trial court to make a last-minute decision regarding a relatively unsettled area of law. The continuance also forced defendant to incur expenses as a result of the delay. The court affirmed the trial court’s decision.

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