34 Trial Lawyer • Fall 2023 person, make sure you file a motion to allow their testimony via contemporaneous video conferencing at least 30 days prior to trial. ORS 45.400(5). If you need a sample of the motion, please email us. We’ll be glad to provide it. Subsequent treating providers or relevant prior treating providers may be perpetuated when necessary. Make sure you start that process early to avoid any technical arguments that you have not complied with ORCP 37. We like to have a couple of less important providers video recorded to fill in the gaps that inevitably will appear during the trial. In our neck adjustment/carotid artery dissection case, we presented a combination of live in-court witnesses, live remote witnesses and perpetuated witnesses. This made it much easier to manage the schedule and gaps that appeared. We showed half of our neuropsychologist’s perpetuated testimony one afternoon and first thing the next day we showed the second half which was much more impactful. Graphics Graphics are key to educating your jury. We all process information differently. There are verbal, visual and kinesthetic processors on your jury and our job is to try to connect with as many of the jurors as possible. In addition to the timeline that we created, we hired High Impact to create an animation of a neck adjustment, dissection, clot development, dislodging of a clot and how it travels to the brain. We were able to show the animation in our opening statement as well as with two of our experts. Instructions Jury instructions are obviously crucial. The causation instruction is one of the most important. Familiarize yourself with the Haas v. Estate of Carter case, a vitally important opinion from the Oregon Supreme Court dealing with causation. We alerted the trial judge in our trial memo to this issue, raised it in our proposed jury instructions and successfully argued it at the end of the case, just before the jury was instructed. We believe we are the first ones in the state to have convinced the trial court judge to provide this new twist on the “but for” causation instruction. We are happy to share our briefing and a copy of the judge’s stripped-down Haas instruction. Please email us with your request and we will oblige. Conclusion As noted, the challenges of pursuing a medical malpractice lawsuit are many and formidable. That said, the reward of helping someone harmed by malpractice is exceptionally fulfilling and worth all the effort, no matter the outcome. One cannot overstate the importance to the plaintiff of their loss being recognized, treated seriously and advocated for. We hope that our experiences benefit you and your clients. Brendan Dummigan is managing partner at Pickett Dummigan Weingart LLP. His practice is focused on catastrophic injury cases in the areas of medical malpractice, ELL and products liability. He speaks Spanish fluently. Dummigan contributes to OTLA Guardians at the Guardians Club Plus level. He can be reached at brendan@pdw.legal or 503-223-7770. Deena Sajitharan practices personal injury, medical malpractice and civil rights law. She is an associate in the firm Pickett Dummigan Weingart, 210 SW Morrison St., Ste. 400, Portland, OR 97204. She can be reached deena@pdw.legal or 503-575-9731. Lessons Learned Continued from p 33 ...the reward of helping someone harmed by malpractice is exceptionally fulfilling and worth all the effort, no matter the outcome.
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