OTLA Trial Lawyer Fall 2022

61 Trial Lawyer • Fall 2022 entered, the defendant filed a petition for and the court awarded attorney fees. The plaintiff appealed, arguing that no fees should have been awarded because the defendant failed to plead an entitlement to them, as required by ORCP 68. The defendant cross-assigned error to the trial court’s order denying the defendant the ability to amend its answer to allege an entitlement to fees. The Court of Appeals held that the trial court committed plain error in awarding fees because of the defendant’s complete failure to plead any entitlement to them in violation of ORCP 68. The Court of Appeals also held that the trial court did not err when it concluded it lacked jurisdiction to address the defendant’s motion to amend its answer, which was filed after the notice of appeal was taken. ORS 20.080(2) authorizes attorney fee awards on equitable counterclaims worth $10,000 or less. Albany & Eastern R.R. Co. v. Martell, 319 Or App 816 (2022); DeHoog, J. The plaintiff was represented by Michael Rose. ORS 20.080(1) authorizes an attorney fee award to a prevailing plaintiff on a small-dollar damages claim. ORS 20.080(2) authorizes an attorney fee award to a prevailing defendant on a small-dollar counterclaim. In this case, the trial court awarded the defendants attorney fees for prevailing on their equitable counterclaim seeking to establish a prescriptive easement on the plaintiff ’s property. The plaintiff appealed, arguing that the defendants were not entitled to fees because they prevailed on an equitable claim rather than a legal one, and ORS 20.080(2) authorizes fees only for legal claims. The Court of Appeals affirmed, explaining that, unlike ORS 20.080(1), ORS 20.080(2) is not limited to damages claims (i.e., legal claims). Moreover, because the value of the defendants’ counterclaim here did not exceed $10,000, the trial court properly awarded attorney fees under ORS 20.080(2). Summary judgment is proper where the plaintiff argues that she had a legally protected interest in the accuracy of her medical records, but the record is insufficient to establish an exception to the physical injury rule that applies in negligence cases. Hofer v. Or. Health & Sciences Univ., 319 Or App 603 (2022), Mooney, P.J. The plaintiff was represented by David Wallace. The plaintiff sued Oregon Health & Sciences Univers i ty (OHSU) for damages she sustained after two of its physicians typed false statements into her medical record. The plaintiff sought recovery under two legal theories: defamation and medical negligence. The trial court ruled that OHSU was entitled to summary judgment on the plaintiff ’s defamation claims because those claims were barred by absolute privilege. It also held that OHSU was entitled to summary judgment on the plaintiff ’s medical negligence claim because there were insufficient facts to establish a basis for that claim. The Court of Appeals agreed, holding that the evidence in the summary judgment record was insufficient to raise a genuine dispute of fact regarding whether the physicians were carrying out their official duties. OHSU was therefore entitled to prevail on its absolute privilege defense. The court further held that the plaintiff had failed to develop or support her argument that she had a legally protected interest in the accuracy of her medical records that was sufficient to provide an exception to the physical injury rule that applies in negligence cases. She had also failed to introduce evidence establishing that her physicians had a specific duty to maintain accurate patient records for the particular purpose of protecting patients from emotional harm. Quasi-judicial immunity does not bar negligence claims against Oregon State Hospital arising out of its allegedly negligent mental health assessment, treatment, testing or failure to warn of foreseeable threats of harm. Harmon II v. State of Oregon, 320 Or App 406 (2022), Egan, J. The plaintiff was represented by Travis Eiva. The plaintiff, who is the personal representative of the decedent’s estate, brought a wrongful death action against the Psychiatric Security Review Board (PSRB) and Oregon State Hospital (OSH) after the decedent was killed by an individual who had recently been released from the jurisdiction of PSRB and from commitment at OSH. The plaintiff alleged the state was negligent in several ways, including in its release decision; in its treatment, testing and assessment of the individual; and in its failure to warn the decedent about the release. The trial court granted summary judgment to the state, ruling that quasijudicial immunity barred the plaintiff ’s negligence claims. The Court of Appeals held that quasi-judicial immunity barred the plaintiff ’s negligence claims to the extent that they arose from PSRB’s and OSH’s decisions to release and with regard to PSRB’s mental health assessment. The court further held, however, the state was not entitled to quasi-judicial immunity with regard to OSH’s mental health assessment or with regard to claims that the state was negligent in its treatment and testing of the released individual or in its failure to warn the decedent of the release. A plaintiff who alleges that she suffered a loss by purchasing consumer goods at an inflated market price does not satisfy the “ascertainable loss” requirement of the Oregon Unlawful Trade Practices Act. Bohr v. Tillamook Cty. Creamery Ass’n, 321 Or App 213 (2022), Tookey, P.J. The See Sheets 62

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