Recent Appellate Opinions

Son v. Ashland Community Healthcare Services, 239 Or.App. 495 (2010).

The Oregon Court of Appeals holds that whether minor was negligent in failing to tell of substances consumed was issue for jury, that child's consumption of substances prior to hospitalization was not affirmative defense, negligent conduct of father was not affirmative defense for fault allocation, father's fault should be reallocated among at fault parties, and that juror misconduct did not rise to level necessary for new trial.

Lindsey Hughes argued on behalf of healthcare defendants on this important decision regarding the comparison of fault to plaintiffs for negligent acts both prior to and during the medical care at issue, as well as the reallocation of fault among multiple parties and the standards by which juror misconduct may reverse a verdict. Plaintiff in this case was the personal representative of her daughter, who had passed away following a drug overdose. Plaintiff alleged wrongful death against the physicians who provided treatment to her daughter after she was hospitalized for ingesting an unknown quantity of prescription medications and other illicit drugs. Following a jury verdict in favor of plaintiff, plaintiff appealed the court's denial of her directed verdict on defendant's "faiIure to tell" defense and the jury's allocation of some damages to decedent's father, who had kept old prescription medications around the house and interacted with decedent the night of her overdose. Defendants cross appealed alleging error in striking their defense of contributory negligence of decedent and not granting a mistrial for juror misconduct.

The Court held that the information provided by decedent to the physicians was a proper defense for the jury to consider. Alternatively, however, defendants could not assert contributory negligence for decedent's ingestion of drugs prior to reaching the hospital, as that conduct was outside the issue of her medical treatment. For the same reasons, the Court held that conduct of decedent's father which lead to her hospitalization was outside of the question of her medical treatment. The damages that were attributed to him were distributed proportionally among those found at fault. Finally, the Court held that a juror's undisclosed personal knowledge of a defendant did not necessitate a new trial.


Son v. Ashland Community Healthcare Services, 239 Or.App. 495 (2010).

The Oregon Supreme Court holds that a sales manager's firing was not wrongful discharge for refusing to participate in a sales event alleged to be tinged with misrepresentation and illegality.

Plaintiff in this case received a jury verdict in his favor, which was subsequently overturned by the Court of Appeals. He appealed to the Oregon Supreme Court. Lindsey Hughes filed an amicus curiae brief on behalf of the Oregon Association of Defense Counsel in this important employment law decision regarding wrongful discharge claims in relation to fulfilling a "public duty.” The Court held the sales manager's firing was not actionable because the employee did not report the objectionable circumstances to any authority and the allegedly misrepresentative conduct was on the part of a third party contractor. The Court upheld the Court of Appeal’s decision in favor of defendant, thereby dismissing the lawsuit.


Peitsch v. Keizer, 219 Or.App. 114, 180 P.3d 1239 (2008).

 The Oregon Court of Appeals holds that to preserve an objection to a jury instruction for appeal, the objecting party must make their notation immediately after the jury is instructed.

Following a jury verdict for the defense in this malpractice case, plaintiff appealed on grounds that the trial court erred in not giving her requested jury instruction, and alternatively in giving a modified instruction in error.

Lindsey Hughes argued on behalf of the defendant that plaintiff’s objection was not properly preserved. Relying on ORCP 59 H(1), the court held that a party who seeks appellate review of a jury instruction must make notation of their objection immediately after the jury is instructed. Therefore, in this instance, plaintiff had failed to properly preserve her objection. Furthermore, plaintiff’s participation in forming the court’s instruction on causation made her delayed objection on different grounds unpreserved for review.


Moser v. Mark, 223 Or.App. 52, 195 P.3d 424 (2008).

The Oregon Court of Appeals holds that plaintiff must allege the defendant's conduct actually caused harm; possibly causing the harm fails to state a claim.

Plaintiff claimed damages arising from defendants‘ alleged failure to properly treat and diagnose his lower back condition. After the trial court's grant of defendant's motion to dismiss for failing to state a claim, plaintiff appealed.

We argued on behalf of the healthcare defendants that plaintiff's allegation that an MRI "may have shown” bulging discs were present at a specific time is insufficient to state a claim. The possibility of a causal link does not suffice. The court agreed, holding that plaintiffs must allege facts that, if proven, will establish the right to recover. In the context of medical nonfeasance, the plaintiff must allege “circumstances which rendered the failure harmful.” Alleging that conduct “may” have caused the harm is insufficient.


Christiansen v. Providence Health System of Oregon Corp., et al., 344 Or 445, 184 P3d 1121 (2008).

The Oregon Supreme Court upholds five-year statute of repose for medical negligence claims against constitutional challenge.

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.


Howell v. Willamette Urology, PC, 344 Or 124, 178 P.3d 220 (2008).

Oregon Supreme Court holds proper venue in county where conduct occurred rather than county of decedent’s death.

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.


Joshi v. Providence Health System, et al, 342 Or 152 (2006).

Oregon Supreme Court approves “but for” standard for causation in claims for medical negligence.

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.


Hughes v. PeaceHealth, 344 Or 142, 178 P3d 225 (2008).

Filed amicus brief on behalf of Oregon Association of Defense Counsel. Oregon Supreme Court upholds statutory cap on noneconomic damages in wrongful death actions against challenges under remedies and jury trial clauses of Oregon Constitution.

Plaintiff sued a health system alleging negligent medical care caused the wrongful death of her daughter. The jury awarded plaintiff $1 million in noneconomic damages, but ORS 31.710 operated to reduce the noneconomic damages award to $500,000. Plaintiff appealed, arguing the statutory cap on noneconomic 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 noneconomic 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.


Juarez v. Windsor Rock Products, Inc, 341 Or 160 (2006).

 Filed amicus brief on behalf of Oregon Association of Defense Counsel. Oregon Supreme Court upholds exclusivity provisions of Workers Compensation Act against plaintiff’s remedy clause challenge under Oregon Constitution.

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.


Fields v. Legacy Health System, 413 F3d 943 (9th Cir 2005).

Ninth Circuit Court of Appeals upholds Oregon wrongful death statutes of limitations and repose against constitutional challenges.

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.



The defendant’s argument is compelling. . .