September 2006 “Tips from the Bench”

By Judge John Wittmayer, Multnomah County Circuit Court.

Demonstrative exhibits - do they go into the jury room?

On July 12, the Oregon Court of Appeals issued its opinion in Christensen v. Cober, ___ Or App ___ (2006), which clearly answers the question about whether demonstrative exhibits go into the jury room.

In Christensen, a medical negligence case, plaintiff’s expert witness “described a device called a synovial scraper that he testified is used to scrape off the bursa so a surgeon can adequately see the [surgical site].” The doctor then said that we have a “nice picture of what it looks like, which is better than anything I can show.” The witness described the exhibit as a picture of “what you will see when you clear off that ligament.” The picture was received “for demonstrative purposes.” Over plaintiff’s objection, the exhibit did not go into the jury room because it was received “for demonstrative purposes” only.

The Court of Appeals opinion tells us that “[r]egardless of whether an exhibit that is admitted in evidence is designated as demonstrative or not, though, there is no rule of evidence or trial procedure that authorizes the exclusion of such an exhibit from the jury’s use and consideration during deliberations.” ORCP 59C(1) requires that all exhibits (except for depositions) go into the jury room during deliberations.

Practice tip: Avoid misunderstandings with adverse counsel and the court by making sure you all have a common understanding of what exhibits go into the jury room.

Is there a common law claim for wrongful death in Oregon?

When the Supreme Court issued its decision in Greist v. Phillips, 322 Or 281 (1995), many thought that the issue was settled, and that the Supreme Court had clearly said that a wrongful death claim is solely a creature of statute, and no common law right existed to assert such a claim when the Oregon Constitution was adopted in 1857 (even though it took two years after that to become a state). Later, with its opinion in Lakin v. Senco Products, Inc. 329 Or 62 (1999), the Supreme Court corrected certain language from Greist, which the Lakin court described as dicta. With this “correction” came the argument from plaintiffs that the Griest court’s decision, that no common law wrongful death action existed in 1857, was no longer viable.

It now appears that this issue has been squarely presented to the Supreme Court. The Supreme Court has accepted review in Hughes v. PeaceHealth, 204 Or App 614 (2006). One of the issues for review is whether a wrongful death action was cognizable, and a remedy available, under common law when the Oregon Constitution was adopted.

All of this is important because the Legislature’s “cap” on non-economic damages can apparently apply only to claims that are a creature of the legislature, and can not apply to claims that existed at common law when the Oregon Constitution was adopted. Lakin, supra.

Practice tip: You should expect that it will be necessary to make whatever record you think appropriate to preserve this issue pending the Supreme Court’s decision in Hughes.