Tag Archives: Oregon law

In a sexual assault case against ClubSport oregon and leisure sports, Kristin Olson wins a motion to preserve allegations in her lawsuit regarding a different, prior sexual assault victim at the same club

While representing a victim of sexual assault in a case against fitness facility ClubSport Oregon and its management company, Leisure Sports, Kristin Olson successfully defeated the defendants’ motion to strike allegations regarding a prior victim of sexual assault at the same ClubSport location.  In the lawsuit brought on behalf of her client, Kristin alleged that her client was the victim of sexual assault during a massage at ClubSport Oregon in Tigard.  The lawsuit also alleged that there was a prior sexual assault involving a different victim by a different massage therapist at the same ClubSport Oregon location.  Therefore, Kristin argued, ClubSport Oregon and Leisure Sports knew or should have known that a sexual assault during a massage at that club location was foreseeable and should have changed their protocol to protect future potential victims of sexual assault during a massage, such as Kristin’s client.  ClubSport and Leisure Sports moved to strike those allegations.  Kristin successfully defeated that motion, and the allegations regarding the prior sexual assault remained in the lawsuit.  Freifeld v. Leisure Sports, Inc., et al., Washington County Case No. 18CV12178 (September 10, 2018).

Kristin is an Oregon sexual abuse lawyer who represents sexual abuse and sexual assault survivors in civil lawsuits throughout the state of Oregon.

While representing a victim of sexual assault against fitness facility ClubSport Oregon, Kristin Olson successfully defeated a motion to strike allegations in the lawsuit regarding a prior victim at the same ClubSport location

Bird Strikes and Aviation: Facts and Fault

From Scott Brooksby’s article, “Bird Strikes and Aviation: Facts and Fault” published in the American Bar Association’s Mass Torts Practice Points on December 7, 2015:

Bird strikes are an increasing danger to commercial aviation and result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905. Now, aircraft-wildlife strikes are the second leading cause of aviation-related fatalities. Globally these strikes have killed over 400 people and destroyed more than 420 aircraft. In addition to birds, wildlife strikes have been reported involving horses, antelope, moose and many other mammals.

Potential Liability for Airport Operators
The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of aircraft-wildlife strikes. The USDA notes that airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues. The U.S. Code of Federal Regulations requires that Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. section 139.337 to conduct formal wildlife hazard assessments. The certificated airports must develop wildlife hazard management plans as part of the certification standards. Airports are required to employ professional biologists trained in wildlife-hazard management. (14 C.F.R. § 139.337 and FAA Advisory Circular 150/5200-36). Failure to comply with the regulations can give rise to liability for airport operators.

Data Sampling
According to Boeing, the relevant wildlife-strike facts include:

1. More than 219 people have been killed as a result of bird strikes since 1988.

2. Between 1990 and 2009, bird and small and large mammal strikes have cost U.S. civil aviation $650 million per year.

3. The Air Force sustains about $333 million dollars in damage per year due to bird strikes.

4. About 5,000 bird strikes were reported by the Air Force in 2012.

5. About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.

6. The FAA has identified 482 species of birds involved in strikes from 1990-2012.

Factors Contributing to the Rise in Bird Strikes

1. The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.

2. A 12-pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.

3. Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported. The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.

4. Finally, the population of European starlings is now the second most prevalent bird in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.

In January 2009, U.S. Airways Flight 1549 landed on the Hudson River after multiple Canada goose strikes in flight.  As a result, New York City Mayor Michael Bloombergdeclared war on geese. Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009). A mayoral steering committee gave the go-ahead to the USDA to cull geese in a 450-mile area encompassing JFK, LaGuardia, and Newark airports. Other means of control include:

1. Each summer, teams of USDA goose catchers capture geese that, in the molting condition cannot fly, including offspring that are then taken to slaughterhouses and dispatched. Between 2009 and 2010, 2911 geese were killed.

2. The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.

3. Discouraging nesting and grazing.

4. Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.

5. Firing pyrotechnics and propane cannons.

Given the rapid growth of non-migratory birds at some of the busiest airports, and the dramatic increase in flights, it may only be a matter of time before a catastrophic bird or wildlife strike will happen again, with more disastrous results than the extraordinary landing of Flight 1549 on the Hudson.

The NTSB’s role in the investigation rail accidents and accident prevention

Scott Brooksby (pictured above) is the chair of Olson Brooksby’s product liability group.  Scott has extensive experience with cases involving the NTSB, including rail and aviation cases.  

This article will discuss statistical and philosophical rail safety.  While rail accidents generally do not garner a great deal of media attention unless, say, a school bus is involved, the NTSB’s role in the investigation rail accidents allows for the compilation of valuable information for those in the rail industry and can assist them with developing solutions for accident avoidance.

The National Transportation Safety Board (NTSB)’s Unique Role In Rail Accident Investigation

The practical reality is that most media attention as it relates to the NTSB is focused on plane crashes.  Plane crashes are unique in their ability to capture the average person’s attention.  While we will not delve into every statutory or regulatory provision or procedure employed by the NTSB, some key elements are worth noting here.  The NTSB is a completely unique federal agency, consisting of five members, one of whom serves as the chair.  The NTSB is congressionally chartered and has subpoena and prosecutorial powers, but it is not an agency supervised by the Executive branch of the U.S. Government.  Its sole and unique mission is to investigate every transportation disaster in the United States, make a probable cause determination, and, if appropriate, issue safety regulations.  It is the only government agency authorized to investigate the causes of transportation accidents and make safety recommendations.  The NTSB’s authority is set out at 49 U.S.C. §§ 1101-1155.

The origin of the NTSB was the Air Commerce Act of 1926.  (NTSB, History of The National Transportation Safety Board, http://www.ntsb.gov/about/history.html (accessed 5/10/13)).  The NTSB was established in 1967 as the federal government’s primary accident investigation agency for all modes of transportation.  The core of the new agency was the Civil Aeronautics Board’s Bureau of Safety (closed due to the Airline Deregulation Act of 1978).  (Id.)  Originally established with strong ties to the Department of Transportation, these ties were later severed under the Independent Safety Board Act 1974 when the provisions of 49 U.S.C. §§ 1101-1155 enabled the agency.  (Id.)

The NTSB division that handles rail accident investigations is the Office of Railroad, Pipeline and Hazardous Materials Investigations (“the Office”).  (NTSB, Office of Railroad, Pipeline and Hazardous Materials Investigations, http://www.ntsb.gov/about/office_rph.html (accessed 11/15/13)).  The NTSB makes safety recommendations based on the rail accident investigations it conducts.  (Id.)  The Railroad Division of the Office conducts investigations “involving passenger railroads, freight railroads, commuter rail transit systems and other transportation systems operating on a fixed guideway.  These accidents typically involve collisions or derailments; some of these accidents lead to the release of hazardous materials.”  (Id.)

Rail Fatality Statistics

In 2011, the most recent year for which NTSB statistics for fatal accidents are available, there were 759 rail accidents.  The accident data for 2011 was comprised of trespassers and nontrespassers (499); light, heavy, and commuter rail (230); employees and contractors (24); and passengers (6).  (NTSB, Data & Statistics: 34,434 Transportation Fatalities In 2011http://www.ntsb.gov/data/index.html (accessed 10/27/13)).

Information regarding NTSB reports concerning rail accidents going back to the 1970s can be found on the NTSB website at http://www.ntsb.gov/investigations/reports_rail.html.

Causes of Rail Accidents


In September of this year, NTSB Board Member Dr. Mark Rosekind made a presentation to a workshop of locomotive engineers and trainmen.  Mark Rosekind, The NTSB Safety Mission: From Investigation to Recommendation, https://www.ntsb.gov/doclib/speeches/rosekind/rosekind_09232013.pdf (last accessed Nov. 15, 2013).   One of the causes of rail accidents that Dr. Rosekind identified is fatigue, about which the NTSB feels strongly and almost constantly designates as a cause of accidents.  As Dr. Rosekind stated in his remarks, “fatigue can degrade the very aspect of human capability”.  (Id.)

On April 17, 2011, there was a collision between two BNSF railway freight trains in Red Oak, Iowa.  (Id.)  The cause of the accident was found to be fatigue.  (Id.)  Specifically, the crew of the striking train was so fatigued that they failed to comply with the signal indication requiring them to stop before colliding with the standing train.  (Id.)  The crew had fallen asleep “‘due to fatigue resulting from their irregular work schedules and their medical conditions.'”   (Id.)

Based on some of the NTSB investigations pinpointing fatigue as the cause of rail accidents, Dr. Rosekind recommends that “fatigue management systems” be developed for operators and that such systems be monitored and continually improved upon in order to reduce fatigue-related accidents.  (Id.)


Another cause of rail accidents is distraction.  (Id.)   In Chatsworth, California, on September 12, 2008, a Metrolink train collided with a Union Pacific train due to an engineer’s texting.  (Id.)  Metrolink’s engineer’s phone records on the day of the accident showed that 95 text messages were sent or received.  (Id.)  During the time the engineer was responsible for operating the train, he sent 21 texts, received 21 texts and made four telephone calls.  (Id.) Upon investigation it was found that the engineer’s phone usage on the day of the accident was consistent with his previous use, so this accident was simply waiting to happen.  (Id.) The cause of the crash was found to be the failure of the Metrolink engineer to observe and respond to the red signal.  (Id.)  Although the Metrolink engineer was prohibited from using his phone while operating the train, he did so anyway, causing the accident.  (Id.)

NTSB Investigations as a Useful Tool for Avoiding Future Rail Accidents

NTSB investigations into rail accidents can serve as useful  tools for avoiding accidents in the future.  Because valuable information is compiled and because the NTSB makes a causation determination for each accident, future rail accidents can be avoided by looking at the causal mechanisms of the accident and implementing systems to avoid such accidents in the future.

Independent Medical Examinations and Oregon Law

IME’s: Leveling the Playing Field

With few exceptions, Oregon has no expert discovery.  While Independent Medical Examinations (“IME’s”) are available, the Oregon Plaintiff’s Bar has resisted them consistently and for years has sought conditions such as the presence of “supporters” or plaintiff’s counsel, someone from their office, or audio and/or video recording, etc.  In large personal injury, product liability, or aviation cases where the defense has needed IME’s in a number of medical disciplines, plaintiffs routinely sought to, and successfully blocked multiple specialty IME’s.

Until recently, the plaintiff could retain one or more medical experts, who could then examine the plaintiff without the defendant ever knowing of the examination(s), or at best, only learning as the plaintiff’s surprise medical expert took the stand.  Obviously, it did not work the other way around and any defense IME, which usually required court intervention, would be discoverable to the plaintiff immediately.  Even if the defendant did not request a written report, the defendant’s expert was obligated to provide the report at the plaintiff’s expense.

Plaintiff Must Now Disclose IME’s and Reports, Or Have Plaintiff’s IME Provider Prepare a Report at Reasonable Expense to the Defense

Pursuant to ORCP 36, ORCP 44 and the Oregon Supreme Court’s recent decision in A.G. v. Guitron, 351 Or 465, 268 P3d 589 (2011),  the plaintiff is now required to produce a written report from any and all examining physicians and psychologists who have examined the plaintiff and not yet made a written report.  This includes the obligation to request that any examining physicians and psychologists who have been retained as  experts by the plaintiff, and who have not yet made a written report, prepare a written report of the examination at the defendant’s reasonable cost and produce it to the defendant.

Defendant May Obtain Attorney Fees If a Motion To Compel Is Required

Pursuant to ORCP 46 A(4), the defendant may also move the court for an Order requiring the plaintiff to pay the defendant’s reasonable attorney fees and costs in filing such a motion to compel, given the express language of ORCP 36, ORCP 44 and Guitron.  Unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust, it may order the plaintiff and/or the plaintiff’s attorney to pay the defendant’s reasonable expenses incurred in obtaining the Order, including attorney’s fees.

The Oregon Evidence Code Contains an Exception to the Psychotherapist-Patient Privilege in Cases Where Emotional Condition Is At Issue

A plaintiff may argue that the attorney-client privilege protects psychotherapist reports until the plaintiff or the plaintiff’s testifying doctor/therapist takes the stand, thereby waiving the privilege.  However, the Oregon Evidence Code (“OEC”) provides an exception to the psychotherapist-patient privilege asserted by plaintiff.  OEC 504(4)(b) provides that,

“There is no privilege under this rule as to communications relevant to an issue of the mental or emotional condition of the patient[.]”

Defense counsel should also be aware and prepared to argue that, by definition, the work-product privilege codified in ORCP 36 B(3) does not apply to medical records.  Also, while pretrial discovery of non-medical experts is generally not permitted in Oregon, Oregon does not recognize a general “expert” privilege that would relieve plaintiff of all obligations to produce medical records.

ORCP 36 B(1) and ORCP 44 D Make Clear that Plaintiff Does Not Have the Right to Ambush Defendant With a Secret Medical Witness

A plaintiff’s medical records in a personal injury case are relevant and discoverable pursuant to ORCP 36 B(1), which is broad and allows parties discovery “regarding any matter, not privileged, which is relevant” to any claim or defense in the case.  ORCP 36 B(1) further provides that, “It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Under ORCP 44 C, “the claimant shall deliver to the requesting party a copy of all written reports and existing notations of any examinations relating to injuries for which recovery is sought * * *.”  Under ORCP 44 D(1), a party may request the report of an “examining physician or psychologist” who has examined the other party for purposes of litigation.   Under the Guitron case, when requested, under the proper predicate circumstances, a plaintiff is required to provide the defense with reports from that plaintiff’s IME physician.  Specifically, the Guitron court held that ORCP 44 C requires plaintiffs “to deliver to defendants, at defendants’ request, a copy of all written reports of examinations related to the psychological injuries for which plaintiff sought recovery, including, specifically, the report of an examination by a psychologist retained by plaintiff’s counsel for the purpose of the litigation.”  351 Or 465, 467.

The court in Guitron affirmed the trial court and the Oregon Court of Appeals’ decision to bar the plaintiff’s psychologist from testifying at trial pursuant to ORCP 44 D because his required written report was not produced to the defendants.  351 Or 465.  The court held that, under ORCP 44 C, plaintiffs are required to produce on request “the reports of the experts who examined them for purposes of litigation as well as for treatment.”  Id. at 485.  As the Guitron court noted, in adopting ORCP 44, the Oregon Legislature limited the reach of the protections of the physician-patient, psychotherapist-patient, and attorney-client privileges, and ordered plaintiff to produce a report that might otherwise have been protected.  351 Or at 484-85.

Plaintiffs Are No Longer Entitled to the Presence of a Supporter During IMEs Unless Extraordinary Circumstances Are Present

On March 7, 2013, The Oregon Supreme Court published an opinion which was a welcome further leveling of the playing field for the defense as it relates to defense-requested IME’s.  The issue of plaintiffs having their counsel or a “supporter” present during defense IME’s has plagued Oregon state civil defense lawyers for decades.

In Lindell v Kalugin, 353 Or 338, 297 P 3d 1266 (2013), the Oregon Supreme Court issued an important en banc opinion for the defense.  The court ruled that a plaintiff is not automatically entitled to be accompanied by counsel or a supporter at an IME requested by the defense.

An ongoing dispute for many years in Oregon is whether a plaintiff’s counsel, family member, or friend can attend a defense-requested IME.  After performing a balancing test, the court ruled that the defense was entitled to have the plaintiff examined without having a family member, friend, or their counsel in attendance.  Id. at 358.  The court noted that this was in part so that the IME examiner, and by extension the defense, could evaluate the true responses of the plaintiff and get a true sense of plaintiff’s condition, unaltered by the presence of the third person.  Id. at 357-58.

The court did not, however, rule that a third party would be prohibited to attend a plaintiff’s IME under any circumstances, but it did rule that the proper showing of need had not been made in the Lindell case.  We do not expect this opinion to alter the customary Oregon practice whereby trial court judges allow the presence of a third person such as a parent in cases involving children or vulnerable adults.

This will likely have particular importance in serious negligence, product liability, and aviation cases where serious injuries are possible and multiple-discipline IME’s are necessary.

Oregon Law Requires Places of Public Assembly (Including Large Brick and Mortar Retailers) To Have At Least One Automated External Defibrilator

Premises owners should be aware that at least one automated external defibrillator (“AED”) may be required in their buildings.  On January 1, 2010, Senate Bill (S.B.) 556, codified as ORS 431.690, took effect, requiring certain building owners to place at least one automated external defibrillator (“AED”) on their “premises.”  The requirement applies to “places of public assembly” which are defined as “facilities” that have at least “50,000 square feet” of “floor space” and where: (1) the “public congregates for purposes such as deliberation, shopping, entertainment, amusement or awaiting transportation;” or “business activities are conducted;” and (2) at least 25 people “congregate” there on a “normal business day.”  S.B. 556 (1)(a)-(b).

In 2011, S.B. 1033 amended ORS 431.690 to require the placement of at least one AED in public and private schools and health clubs as well.

In other words, businesses and facilities with over 50,000 square feet of floor space must have a defibrillator on their premises if at least 25 people “congregate” there on a normal day.  A copy of the statute requiring AEDs is found at http://www.oregonlaws.org/ors/431.690

It is safe to assume that most product manufacturing facilities comprise 50,000 or more square feet.  However, despite the fact that this law has been in effect for more than three years, many Oregon businesses affected by the law are not compliant.


The AED law does not provide a definition for the word “congregate,” nor does it specify whether 25 people must be present at one time or can come and go over the course of an entire business day.  When Oregon courts interpret ambiguous language, they focus primarily on the text and context of the statute and secondarily on legislative history.  State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009).  When analyzing the text of a statute, it is useful to consider the dictionary definition of any ambiguous words.  The dictionary definition of “congregate” is “to come together; to assemble; to meet,” or “to collect into a group, crowd, or assembly.”   Black’s Law Dictionary 301 (6th ed., West 1990), Merriam Webster’s Collegiate Dictionary 243 (10th ed., Merriam-Webster, Inc. 1997)

Given the dictionary definitions, one could reasonably argue that the new law applies only to businesses that have at least 25 people present at some point during the day (i.e. “assembled” or “together” at one time).  However, the legislative history of the bill may suggest a different interpretation.  S.B. 556 originally had no 25-person requirement, and therefore would have applied to all businesses with floor space exceeding 50,000 square feet.  This specification requiring at least 25 people to congregate was added by way of an amendment suggested during a work session of the Health Care and Veterans’ Affairs Committee (held on April 4, 2009).  At that meeting, Senator Wayne Morse expressed concern that the bill would require industrial warehouses with very few employees to install AEDs.  One of the bill’s sponsors, Senator Jeff Kruse, agreed and said that they intended the bill to apply to “big department stores,” shopping centers, “office buildings” and the like, but not sparsely populated warehouses.  Relying on this legislative history, it is more likely that the 25 person requirement was not intended to exempt stores that have more than 25 visitors during a day even if they are not all present at the same time.

For a business such as a large brick and mortar retailer, there are two threshold questions that determine whether ORS 431.690 (S.B. 556 applies).  First, does the store or other business have over 50,000 square feet of floor space?  And, second, do at least 25 people congregate at the business on a typical business day?  If the answer to both questions is yes, the business is subject to the AED requirement.  If a minimum of 25 people did not congregate during a typical business day, then there is a good argument that the business would be exempt from the law.

Note that the statute places no limitations on the reason the 25 people have congregated in one place.  The statute provides a nonexclusive list of some of the reasons people have for gathering in these places – “deliberation, shopping, entertainment, amusement or awaiting transportation.”  In the context of a “big box” retailer, for example, the 25 people would likely consist of any person present in the store including, but not limited to, all employees, shoppers, repair or maintenance contractors, or anyone else visiting the store.

Although this insight into the legislative history may be interesting, businesses should not get lost in debating the letter of the statute or meaning of what “congregate” signifies.  If the business believes it might in any way meet the parameters of the statutory requirements, they should simply install an AED.

The law does not specify where the AED should be located or contain any provisions regarding access.  The law merely specifies that the AED shall be “on the premises.”  Based on the absence of any specification, it does not appear that the AED necessarily need be available to any member of the public in the establishment at the time the AED is needed.

Part of S.B. 556 (now codified at ORS 30.802) Provides Protection From Liability For Those Who Comply With The AED Requirement

A provision of S.B. 556, now codified at ORS 30.802, provides a fairly broad immunity provision for those locations which comply with the statutory requirement and maintain an AED on premises, so long as the business is in compliance with the particulars of the immunity provision such as making sure there are employees trained in the use of the AED.  A copy of the statute providing liability protection is found at  http://www.oregonlaws.org/ors/30.802

The cost of AEDs has dropped precipitously with increased competition and more efficient mass production.  The benefits of compliance with the Oregon statute, including immunity from suit, vastly outweigh the risks of non-compliance.  Moreover, there is conclusive evidence that AEDs save lives.  If you have questions, please contact our office.

Olson Brooksby often represents national retailers with large brick and mortar locations.

Oregon is a Modified Comparative Fault State

Oregon’s comparative fault statute, ORS 31.600, and the related Uniform Civil Jury Instructions, provide that the trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third-party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled.  In other words, the jury will be charged with allocating fault to all parties on the verdict form, including parties who have settled.  The percentages must equal 100% for a valid verdict.  Liability is several in Oregon and each party pays their allocated percentage of fault.

While a party may blame all fault on parties who are immune (such as an employer in a work-related personal injury case) and who, therefore, are not included on the verdict form, only those parties on the verdict form, including settled parties, will have fault allocated to them by the jury.  Oregon is a several liability state.  The comparative fault scheme is modified comparative.

Any compensatory damages awarded to plaintiff will be reduced by the corresponding percentage of comparative fault allocated to plaintiff by way of the affirmative defense of comparative fault.  Therefore, assuming that plaintiff’s own fault would be raised as an affirmative defense in a product liability case, plaintiff would be on the verdict form.  Any fault allocated to one or more plaintiff would reduce his or her verdict by the percentage of fault allocated to him or her.  If the fault allocated to a plaintiff is 51% or more, his or her recovery is barred entirely.

The jury must be told that an allocation of fault to the plaintiff will result in a reduction of the plaintiff’s award in proportion to the percentage of fault allocated.  Although settled parties are on the verdict form, and the jury is required to compare the fault of all parties on the verdict form in making their allocation, the jury is prohibited from being informed that any of the parties on the verdict form have settled.  See ORS 31.605.

Immune parties, such as those who are protected by the exclusive remedy provision (e.g., the employer), are not subject to tort liability to the injured worker and, therefore, are not placed on the verdict form, and no percentage of fault can be allocated to them.  However, the comparative fault statute does not prevent a party from alleging that the party was not at fault because the injury was the sole and exclusive fault of a person who is not a party.  In other words, although the jury may determine that an employer who was compliant with worker’s compensation is 100% at fault, they cannot allocate partial fault to the complying employer and the rest of the fault to those on the verdict form.

Under Oregon law, fault may be allocated to a plaintiff’s family member or friend.  For example, in cases involving children, failure to supervise may warrant a claim against a child plaintiff’s parents.  For example, in order for the jury to allocate fault to a parent who was negligent in failing to supervise his or her child, the parent must be a party to whom fault can be allocated on the verdict form.  The parent in this hypothetical will only be on the verdict form if a cross-claim or third-party claim properly alleges the specifications of negligence against the parent.  Defendant would then have the burden of alleging and proving that the parent’s own negligence, in failing to act reasonably to avoid causing injury to the child, was a substantial contributing factor in the accident and injury.

In the absence of proper specifications of negligence at the directed verdict stage against the parent (or any third party, and including the comparative fault of plaintiff), the judge could strike that party from the verdict form, and no fault could be allocated to them.

Attendance of counsel or other third parties at IMEs in Oregon

Close up of judge raising gavel in courtroom

Today, in Lindell v. Kalugin, an en banc opinion, the Oregon Supreme Court, issued an an important ruling for the defense concerning IMEs in Oregon.  The court ruled that a plaintiff is not automatically entitled to be accompanied to an independent medical examination (IME).

An ongoing dispute for many years in Oregon has been whether a plaintiff’s counsel or a family member or friend can attend an IME requested by the defense.  After performing a balancing test, the court ruled that the defense was entitled to have the plaintiff examined without having a family member, friend, or counsel in attendance.  The court noted that this was in part so that the IME examiner, and by extension the defense, could evaluate the true responses of the plaintiff unaltered by the presence of the third party and get a true unencumbered and uninfluenced sense of the plaintiff’s condition.

The court did not, however, rule that under no circumstances would a third party be permitted.  Rather, the court ruled that the proper showing of need had not been made.

This opinion likely does not alter the customary practice in Oregon of trial court judges allowing a third party to be present at an IME in cases involving children or vulnerable adults.

However, this opinion will likely have particular importance in sex abuse cases where psychological, psychiatric or other evaluations are done that involve testing.