56 Trial Lawyer • Fall 2022 Between the Sheets Lisa T. Hunt Cody Hoesly Nadia Dahab By Cody Hoesly, OTLA Guardian By Lisa T. Hunt By Nadia Dahab, OTLA Guardian DECISIONS OF THE OREGON SUPREME COURT In a wrongful death action, statutory beneficiaries of estate are not “parties” whose privileged medical and psychotherapy records must be produced under ORCP 44 C. Dahlton v. Kyser, 370 Or 531 (2022), Garrett, J. Lisa T. Hunt and Rob BeattyWalters represented the plaintiff-relator and Rhett Fraser filed the OTLA amicus brief in support of petition for mandamus. The plaintiff alleged claims of medical negligence arising from the death of a five-month-old infant in this wrongful death action. The statutory beneficiaries of the estate were the parents of the decedent who were entitled to damages for, among other things, loss of society and companionship. In its motion to compel the production of records, the defendant argued they were entitled to the privileged medical and psychotherapeutic records of the beneficiaries under ORCP 44 C because privilege is excepted for records “relating to injuries for which recovery is sought” when “a claim is made for damages for injuries to the party.”The trial court agreed, ordered production of the requested records and concluded the beneficiaries were “parties” who “suffered injuries from loss of companionship and society” within the meaning of that rule. The plaintiff petitioned the Supreme Court for an alternative writ of mandamus, the trial court did not respond, and the Supreme Court issued a peremptory writ. On mandamus, the Supreme Court construed ORCP 44 C, concluding that the term “party” in the rule refers to “a person with the authority to control the litigation” and does not apply more broadly to other persons with an interest in the outcome of the case. The court concluded only the personal representative of the decedent has control over the litigation in a wrongful death action. Although a personal representative may also be a statutory beneficiary, the court determined that the roles are legally distinct under the statutory scheme governing the claim. Lastly, damages arising from a loss of society and companionship “is not an injury ‘to the party or to a person in the custody or under the legal control of a party’ for purposes of ORCP 44 C.” When independent contractor agreement with transportation workers exempt from FAA is deemed illegal, savings clause permits arbitrators to reform contract, treat plaintiff as employee, and apply Oregon’s wage and hour law. Gist v. ZoAn Management, Inc., 370 Or 27 (2022), Duncan, J. Lisa T. Hunt represented the plaintiff and Christina Stephenson filed the OTLA amicus brief. In this wage and hour putative class action, the plaintiff alleged that the defendants’ Drivers Services Agreement (DSA) was unlawful and unenforceable because it set forth an independent contractor relationship and exempted him and those similarly situated from the protections of Oregon’s wage and hour law as an employee. The 40-page contract also contained arbitration provisions the plaintiff further alleged were unconscionable. The provisions set forth a waiver of jury trial and
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