But, You Cannot Do That – And Other Oregon Discovery Practices

Submitted by the Products Liability PAC

By: Mary-Anne S. Rayburn, Gordon & Polscer, LLC, Portland, Oregon

You or your client have been sued in Oregon state court. You may know Oregon is beautiful. It has mountains, mighty rivers, wildlife, farmlands, and fabulous wines, brews and nationally known chefs. Oregon is home to the Oregon Ducks, Oregon State Beavers and Nike. You might even visit the state while discovery is conducted. So, to get started, you make plans to serve interrogatories and depose the plaintiff’s experts and doctors. Sorry, but you cannot do that; welcome to Oregon, possibly the Last Bastion of Trial by Ambush.

Unlike many states and federal practice, the Oregon Rules of Civil Procedure (“ORCP”) do not permit interrogatories. There is no expert discovery either. A party cannot compel production of the expert’s identity or work product or take the expert’s deposition. Generally, the expert’s identity is unknown until that person takes the stand to testify at trial. Often, the first opportunity to review the expert’s file is the short recess taken between direct and cross examination. Furthermore, you cannot depose plaintiff’s medical providers. This is because the injury allegations in the complaint and plaintiff’s deposition testimony concerning his or her medical history and injuries do not waive the patient/physician privilege. Unless the patient voluntarily waives the privilege, the privilege remains until a treating medical provider testifies at trial (either live or via perpetuated deposition testimony) about plaintiff’s medical condition. ORS 40.235, [Oregon Evidence Code (“OEC”) 504-1], OEC 511, Nielson v. Bryson, 257 Or 179, 183–184 (1970), State Ex rel Grimm v. Ashmanskas, 298 Or 206, 690 P2d 1063 (1984).[1]

After you overcome the shock, you wonder, without these tools, how can you learn about the plaintiff’s claims and develop your defenses? First, consider filing motions[2] against the complaint to obtain more information. Oregon is a modified code pleading state. Notice pleading is insufficient. ORCP 18 A requires that a plaintiff plead a “plain and concise statement of the ultimate facts constituting a claim for relief” for each claim. An ultimate fact is somewhere between a general allegation and a specific evidentiary allegation that describes an event or thing having a legal consequence to the theory plead. Facts must be pled “fairly specifically.” See Davis v. Tyee Industries, Inc., 295 Or 467, 476, 668 P2d 1186 (1983). The court must disregard conclusory statements because “they are nullities that do not present any issue.” Gafur v. Legacy Good Samaritan Hosp. & Med. Ctr., 344 Or 525, 529, 185 P3d 446 (2008). “Mere recitation of the elements of a particular claim for relief, without more, is not a statement of ultimate facts sufficient to constitute that claim for relief.” Huang v. Claussen, 147 Or App 330, 334, 936 P2d 394, rev denied, 325 Or 438 (1997). Also, the court “may require the pleading to be made more definite and certain by amendment when the allegations of a pleading are so indefinite or uncertain that the precise nature of the charge * * * is not apparent.” ORCP 21 D; Mazurek v. Rajnus, 253 Or 555, 558, 456 P2d 83 (1969) (defendants are entitled to move that a pleading be made more definite and certain when the plaintiff’s allegations are “too broad or vague”). Courts may strike “any sham, frivolous, irrelevant, or redundant matter inserted in a pleading.” ORCP 21 E. By filing these motions, you may be able to obtain more information about precise nature of the claim. For example, in a products liability claim, rather than alleging the product was dangerously defective in either design, manufacture or warning, plaintiff should be required to allege in what way the product is defective, i.e., the stainless steel contained too much nickel which compromised its strength.

While interrogatories and expert discovery are not permitted, other discovery is allowed. ORCP 36 provides that “For all forms of discovery, parties may inquire regarding any matter, not privileged, which is relevant to the claim or defense of the party seeking discovery or to the claim or defense of any other party…. 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.”

The parties can take Depositions (ORCP 39 and 40), serve Requests for Production of Documents (ORCP 43), conduct Inspections (ORCP 43 A(2)), schedule Physical/Mental Examinations (ORCP 44), file Requests for Admission (ORCP 45) and issue Subpoenas (ORCP 55). Although a party cannot depose the treating medical providers, a party can subpoena complete copies of relevant medical records, including chart notes, imaging, lab work, etc. A party can retain medical consultants to review the records and can schedule, if necessary, an IME. In addition, while a party cannot serve an interrogatory requesting the identity and location of witnesses and medical providers, a party can request documents revealing that information. In response to such request, the parties may list the witnesses and provide contact information, as if an interrogatory had been served. At trial, your expert should be in the courtroom listening to the trial testimony, reviewing the expert’s file and providing suggested cross examination.

A party cannot discover the opposing party’s expert by filing a Motion for Summary Judgment either. ORCP 47E specifically provides “Motions under this rule are not designed to be used as discovery devices to obtain the names of potential expert witnesses or to obtain their facts or opinions.” Rather, an adverse party may satisfy the burden of proof on the issues raised by submitting its attorney’s declaration or affidavit indicating that “an unnamed qualified expert has been retained who is available and willing to testify to admissible facts and who has actually rendered an opinion or provided facts, which if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.” ORCP 47D and 47E. Yes, you read that correctly. You can defeat a motion for summary judgment based upon the adverse attorney’s declaration! See Two Two v. Fufitec America, Inc., 355 Or 319, 325 P3d 707 (2014).

It is important to retain well qualified experts who are capable of formulating and developing your theory of the case but who are also able to anticipate and diffuse the opposing party’s theories. This preparation can take longer because expert discovery is unavailable. However, discovering expert identities may occur during site and/or product inspections, especially when several experts attend and sign in sheets are required. Often, the experts already know one another. In construction defect litigation where a referee and mediator are appointed, under the umbrella of mediation and confidentiality, the parties’ expert identities and work product are exchanged during expert meetings. If the lawsuit concerns similar claims litigated elsewhere, the parties may already know what theories will be advanced and which experts could be involved. National, state and local attorney association networks are another resource to help identify experts (yours and theirs) as well as provide potential cross examination materials.

Conducting discovery in Oregon can be challenging and an adrenaline rush, especially when hearing the opposing expert’s opinion for the first time at trial and reviewing the file during a 15 minute recess. If your counsel and your expert are well prepared, there should be no surprises. Trial by ambush can be FUN.

Mary-Anne Rayburn is of counsel at Gordon & Polscer, LLC in its Portland, Oregon office. Gordon & Polscer represents insurers and corporate and business clients in complex civil disputes and litigation. Ms. Rayburn focuses her practice on civil litigation, including representing manufacturers in the defense of product liability and other tort claims. In 2017, Ms. Rayburn is serving at the President of the Oregon Association of Defense Counsel.

[1] For example, in a medical malpractice case, once the plaintiff deposes the defendant doctor, the privilege is waived and the defendant may depose plaintiff’s other medical providers. Sometimes, plaintiff’s counsel will purposely delay deposing the defendant in order to preserve the privilege.

[2] A party may file motions to dismiss, ORCP 21A, to Make More Definite and Certain, ORCP 21D and to Strike, ORCP 21E.