SUPREME COURT
Media Release
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On January 13, 2009, the Supreme Court:
1.
Allowed petitions for review in1:
Alan Cler v. Providence Health System-Oregon, (S056715) (A130443) (appeal from
Multnomah County Circuit Court; opinion reported at 222 Or App 183, 192 P3d 838
(2008)).
Plaintiffs Alan and Debbie Cler seek review of a Court of Appeals decision
that affirmed a jury verdict in favor of defendant Oregon Hematology Oncology
Associates, P.C. (Oregon Hematology or defendant).
The facts are summarized from the Court of Appeals decision. A nurse and
employee of Oregon Hematology administered an intravenous injection of drugs to
plaintiff Alan Cler. One of the drugs is a vesicant that can cause severe tissue damage if it
leaks out of a vein while being administered. A leak occurred and caused severe damage to
plaintiff's arm and hand. Plaintiffs subsequently filed an action against Oregon
Hematology, among others, for personal injury and nursing negligence, alleging that the
nurse's treatment fell below the standard of care for an oncology nurse.
At trial, defense counsel told the jury during her opening statement that she
would be calling an oncology nurse to testify as an expert witness. Apparently because of
scheduling difficulties, the nurse expert never was called to testify. Plaintiffs' counsel
allegedly was aware of the problems in scheduling that witness. Nonetheless, in closing
argument to the jury, plaintiffs' counsel questioned the reason that defendant had failed to
call the nurse expert, arguing that the reason "probably" was because Oregon Hematology
"couldn't get a nurse expert who would say that this was okay care." * * * "If [Oregon
Hematology is] making assertions that [it does] not follow through on, that tells you
something[.]" Defense counsel then sought to respond during her closing argument.
1
These summaries of cases are prepared for the benefit of members of the
media to assist them in reporting the court's activities to the public. Parties and
practitioners should not rely on the summaries, or the statement of issues to be decided in
the summaries, as indicating the questions that the Supreme Court will consider.
Regarding the questions that the Supreme Court may consider, see Oregon Rule of
Appellate Procedure 9.20.
1
Plaintiffs repeatedly objected that the explanatory statements made by defense counsel
were not part of the evidence that was presented to the jury. The trial court asked to see
counsel in chambers and conducted an off-the-record conversation. Subsequent to that
conversation, defense counsel argued to the jury:
"[DEFENSE COUNSEL]: [The oncology nurse] was here on Wednesday,
prepared to testify in the afternoon. She sat in the courtroom all afternoon,
and she didn't get on because [plaintiffs' counsel] was calling Mr. Cler in the
afternoon. She had to leave on the following day. She got on a plane. She
was scheduled to go on vacation. That's why you didn't hear from [the
oncology nurse]. She was prepared to be here. She sat in the courtroom all
that afternoon, and again, she was prepared to testify and would have
testified in our case and supported our case."
Thereafter, in rebuttal, plaintiffs' counsel argued that he previously accommodated Oregon
Hematology by taking two witnesses out of turn and that defendant had "every opportunity
to get a nurse expert in to testify," and suggested other procedures defendant might have
followed, including "a videotape deposition" of "perpetuated testimony."
At the close of trial, the jury returned a verdict for defendant. Plaintiffs then
filed a motion for a new trial on the ground, among others, that defense counsel's closing
argument was improper. The trial court denied that motion for a number of reasons. The
trial court stated, in part: "The 'facts' defense counsel mentioned were not probative of the
substantive factual issues in the case, nor did they raise an issue with respect to the
credibility of a witness. * * * [T]he Court notes that plaintiffs' counsel was able to
effectively rebut defendant's reasons why it did not call an oncology nurse expert, by
explaining ways in which defendant could have preserved the expert's testimony for trial
and by suggesting that defense counsel made choices regarding the order in which she
called her experts. * * * [T]he Court does not find that plaintiffs have [shown] that they
were substantially prejudiced by defense counsel's closing argument to the jury."
Plaintiffs appealed, and the Court of Appeals affirmed. The court concluded
that any error in allowing defense counsel's statements did not substantially affect
plaintiffs' rights, and therefore was not prejudicial. In reaching that conclusion, the court
made four observations: (1) that plaintiffs' argument on inferences to be drawn from
defendant's absent witness was fully made and not censored by the trial court, and that
plaintiffs were able to rebut defendant's explanation for the absence; (2) that the trial court
provided instruction to the jury on multiple occasions that opening statements and closing
argument are not evidence; (3) that "whatever the strength or weakness of plaintiffs'
inference, it was not even a forkful of the entire evidentiary pie" -- both sides had presented
expert testimony in a week-long trial and there was testimony from both sides that a
leakage could occur even when an oncology nurse takes every precaution; and (4) that the
trial court was in the best position to evaluate the effect of attorney argument on the jury
and whether that argument was prejudicial.
2
On review, the issues are:
(1) Did the trial court err in allowing defendant to explain to the jury during
its closing argument the absence of a witness, after plaintiffs had noted during their closing
argument that no nurses had testified for defendant, and allowing defendant to state that the
witness would have "supported our case?"
(2) If so, was the error prejudicial?
2.
Denied petitions for review in:
Michael A. Webber v. Guy Hall (S056492) (A125252)
State of Oregon v. Gabriel Calderon-Ortiz (S056554) (A131799)
State of Oregon v. Rodney Del Hale (S056575) (A131256)
State of Oregon v. David Lee Moore (S056578) (A130475)
Anthony J. Richardson v. Don Mills (S056601) (A135446)
Bruce J. Francis v. Employment Department (S056620) (A137362)
State of Oregon v. Jeffrey Truman Shepherd (S056626) (A128775)
State of Oregon v. Eric Alan Tucker (S056627) (A132158)
Greg Staten v. Robert Falbo (S056638) (A133080)
State of Oregon v. Sirgeorgio Sanford Clardy, III (S056640) (A133373)
State of Oregon v. Frank Lopez Martinez (S056646) (A125749)
State of Oregon v. Jose Carmen Flores-Silva (S056647) (A133877)
State of Oregon v. Justin Samuel Crews (S056652) (A135214)
Aaron Avery Snell v. Jean Hill (S056658) (A131260)
State of Oregon v. James Battile Harrison (S056663) (A134519)
State of Oregon v. Gary Wayne Maiden (S056664) (A131900)
Clifford Joe Graham v. Nancy Howton (S056675) (A136773)
State of Oregon v. Joel Matthew McCool (S056688) (A114814)
Rudolph Valenciano v. Sharon Blacketter (S056691) (A137792)
James Lowell Snodgrass v. Jean Hill (S056694) (A132414)
State of Oregon v. Lekishia Renea Williams (S056698) (A131158)
State of Oregon v. Ronald Lee Baltazar (S056701) (A131230)
William O. Walker II v. Nancy Howton (S056702) (A133163)
Earl Clyde Brown, III v. Jean Hill (S056703) (A134764)
State of Oregon v. Krag Charles Swartout (S056707) (A131011)
State of Oregon v. Steven Keith Donoghue (S056709) (A130799)
State of Oregon v. Eric Lehmon Hilton (S056721) (A133499)
State of Oregon v. John Michael Derthick (S056740) (A133805)
Jay V. Wanless v. Brian Belleque (S056748) (A138552)
Joshua Ryan Spencer v. Phillipe Magloirie (S056755) (A133549)
State of Oregon v. David Eugene Pfleeger (S056756) (A131961)
State ex rel Department of Human Services v. T. H. K. (S056761) (A138856)
State of Oregon v. Roberta Lillie (S056762) (A133317)
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State ex rel Department of Human Services v. T. H. K. (S056763) (A138856)
State of Oregon v. Russell Marvin Jones (S056772) (A132766)
Gary Joseph Hardegger v. Brian Belleque (S056777) (A128591)
State of Oregon v. Timothy McGuire Hatfield (S056781) (A133818)
3.
Dismissed a petition for review in:
State of Oregon v. Sergio Fedosei Molodih (S056619) (A127839)
4.
Denied a petition for reconsideration in:
Juan Martinez v. Theodore R. Kulongoski (S056472) (A130818)
5.
Denied petitions for writ of mandamus in:
Jacob Barrett v. Max Williams (S056774)
Robert Curtis v. State of Oregon (S056775) (A139577)
T. D. v. Juvenile Department of Marion County (S056792)
State of Oregon v. Billy Ray Stucky, III (S056793)
6.
Denied petition for writ of habeas corpus in:
Donald G. Sager v. Tom Wright (S056742)
7.
Reinstated attorney Stacy H. Rutledge (Bar No. 902673) to the active
practice of law.
4