Tort Tips: Compensation • Wage Statutes • Writ of Mandamus

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Civil Justice is Much More Than Compensation

By Don Corson

There is a commonly held but narrow and deeply flawed view that the civil justice system is solely about providing compensation to those who are harmed by wrongful conduct. In fact, compensating survivors and victims is but one important function of the civil justice system. It’s worth reflecting a moment on some of the other benefits of a court system that allows people to hold wrongdoers accountable.

Several thousand years ago, the prophet Isaiah wrote, “my people thirst for justice.” Those words are etched into stone in the federal courthouse in Portland because peoples’ thirst for justice is just as important today. We need justice for reasons that go far beyond an accounting perspective that the civil justice system merely assesses money damages for harms.
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Cases of Interest

Gist v. Zoan Management, Inc., 363 Or 729 (Oct. 25, 2018)

Lisa T. HuntIn this proposed class action, plaintiff and similarly situated delivery drivers for defendants alleged claims under Oregon’s wage and hour statutes. The trial court granted defendants’ petition to compel arbitration under its “independent contractor” agreements with the drivers, which ultimately did not permit arbitrating any claims arising under Oregon’s employment law. Plaintiff unsuccessfully sought to obtain appellate review of the trial court’s order compelling arbitration, first, by seeking an interlocutory appeal under ORS 19.205(2), and, second, by moving the trial court to certify a controlling question of law for interlocutory review by the Court of Appeals. Finally, plaintiff requested that the trial court enter a general judgment of dismissal with prejudice from which plaintiff took his appeal. After plaintiff had filed his opening brief on appeal, defendants moved the Court of Appeals to dismiss the appeal under Steenson v. Robinson, a 1963 case holding that certain judgments that were voluntarily entered were unappealable. The Court of Appeals granted defendants’ motion and further declined to reconsider that decision. Lisa T. Hunt represented plaintiff in petitioning the Oregon Supreme Court for review of that decision, and briefed and argued the case once review was allowed.

Plaintiff argued to the Court that the purpose of the 1963 Steenson rule was solely to prevent a multiplicity of appeals. The Supreme Court agreed that it was aimed toward preventing “a plaintiff from both obtaining appellate review of a preliminary issue and retaining the ability to refile the same claim, should the plaintiff lose on appeal.” Because a dismissal of all claims with prejudice prevents a multiplicity of appeals, the Court further agreed with plaintiff that subsequent cases distinguishing Steenson have made clear that “when there is a judgment on all claims and the voluntarily dismissed claims were dismissed with prejudice,” Steenson does not bar an appeal. The Supreme Court also rejected defendants’ argument that ORS 36.730, by only permitting interlocutory appeals of either a denial of a petition to compel arbitration or a grant of a motion to stay arbitration, may be read to prohibit a plaintiff from pursuing an appeal. Because plaintiff’s appeal was not interlocutory in nature, that statutory provision had no bearing on whether or not plaintiff could appeal from a final judgment.

Lisa T. Hunt, Of Counsel

A former clerk for two Oregon Supreme Court justices, Lisa is known for her aggressive pursuit of the proper outcome for clients who have suffered a personal, economic, or business injury.

Her practice areas include personal injury, wrongful death, product liability, medical negligence, pharmaceuticals, business litigation, and class actions. Lisa ensures that the trial court record for Corson & Johnson Law Firm’s clients will withstand scrutiny on appeal and, in addition, continues her own independent appellate practice.

Hodges v. Oak Tree Realtors, Inc., 363 Or. 601 (Sept. 13, 2018)

During depositions of plaintiff in this serious injury case, and over her objections, defendants obtained an order from the trial court compelling plaintiff to answer questions regarding communications with her doctor during treatment for her injuries. Plaintiff petitioned the Supreme Court for a preemptory writ of mandamus, which the Supreme Court granted.

Defendant argued that, because plaintiff’s communications were “made in the course of a physical examination performed under ORCP 44,” OEC 504-1(4)(b) provides that the plaintiff had no physician-patient privilege to assert during her deposition. Defendant contended that plaintiff’s examination necessarily was “performed under ORCP 44” within the meaning of limitation on privilege set forth in that evidentiary rule. That was so, according to defendant, because ORCP 44 C requires plaintiff to provide defendants with records of physical examinations relating to her injuries. The Supreme Court disagreed, determining that “the legislature did not intend to limit the physician-patient privilege in the manner that defendants urge.”

Despite defendants having the ability to obtain medical records of the physical examinations of plaintiff under ORCP 44 C, the trial court did not exercise any authority under ORCP 44 A to order that those examinations be performed. The Supreme Court therefore concluded that plaintiff’s medical treatment in this case was not “performed under ORCP 44” such that the OEC 504-1(4)(b) limitation on the physician-patient privilege applied. Accordingly, the Court commanded the trial court to vacate its order compelling the plaintiff’s answers to questions invading the physician-patient privilege.