42 Trial Lawyer • Spring 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 A party proffering documents prepared by a third party under the business records exception to the hearsay rule must present evidence of the third party’s record-making practices sufficient to establish, as required by the text of OEC 803(6), that the documents were made close in time to the acts they describe, by (or from information transmitted by) a person with knowledge, as part of a regularly conducted business activity, and pursuant to a regular record-keeping practice. Arrowood Indemnity Co. v. Fasching, 369 Or 214 (2022); Duncan J. The defendant was represented by Jonathan Radmacher. Nadia Dahab and Phil Goldsmith filed an amicus brief on behalf of OTLA. Arrowood, the plaintiff, filed this debt collection action in an attempt to collect student loan debt from the defendant, Dean Fasching. In the trial court, the parties filed cross-motions for summary judgment on the question whether documents that the plaintiff had received from a third party, and on which they relied for authority to collect on the debt, were admissible under Oregon Evidence Code (OEC) 803(6), the business records exception to the hearsay rule. The trial court and the Court of Appeals held that as long as the documents were received, incorporated and relied upon by Arrowood in the course of its business, they were admissible as business records under that exception. On review, the Supreme Court reversed. The Supreme Court held that a party proffering documents under the business records exception to the hearsay rule must present evidence of the thirdparty’s record-making practices sufficient to establish, as required by the text of OEC 803(6), that the documents were made close in time to the acts they describe, by (or from information transmitted by) a person with knowledge, as part of a regularly conducted business activity, and pursuant to a regular recordkeeping practice. DECISIONS OF THE OREGON COURT OF APPEALS Post-trial motion to amend pleadings to conform with the evidence adduced at trial, and entry of judgment in excess of prayed-for amount, was proper where the defendant did not object or seek to make more definite and certain the operative prayer for noneconomic damages “not less than” a designated amount. Hoff v. Certainteed Corp., 316 Or App 129 (2021); DeVore, P.J. The plaintiff was represented by Jim Coon. The plaintiff, on behalf of herself and the estate of her husband, brought claims against multiple defendants alleging the defendants’ products had caused her husband’s mesothelioma and resulting damages. The plaintiff ’s operative complaint sought noneconomic damages in an amount “not less than” $5 million, and damages for loss of consortium in an amount “not less than” $1 million. The defendant did not file a motion to make the prayed-for amounts more definite and certain. After a jury trial, the jury rendered its verdict against the only remaining defendant, Kaiser Gypsum, and found the defendant was strictly liable, that its negligence was a substantial factor in causing the mesothelioma, and that the defendant’s percentage of fault was 35 percent. The jury issued a special verdict awarding the plaintiff $4 million in noneconomic damages and $4 million in loss-of-consortium damages. Over the defendant’s objection, the trial court allowed the plaintiff ’s post-trial motion to amend the complaint to conform with the evidence presented at trial. On appeal, the defendant argued the trial court erred by, among other things, granting the plaintiff ’s post-trial motion to amend her complaint to seek a greater amount in noneconomic damages, and by entering a judgment against the defendant that awarded noneconomic damages for the loss-of-consortium claim
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