54 Trial Lawyer • Fall 2023 hood that the decedent would die from his medical condition. Nor was there mention of any type of damages that would be any different from the economic and noneconomic damages that are recoverable only in a wrongful death action to compensate the decedent for economic losses, pain, suffering, or other losses during the period between defendants’ wrongful conduct and the decedent’s death. Chief Justice Flynn, joined by Senior Justice Walters, concurred in part and concurred in the judgment. The concurrence agreed that the trial court’s judgment should be affirmed but disagreed with the majority’s conclusion that the trial court had not erred in instructing the jury that “[a] physician does not guarantee a good result by undertaking to perform a service.” The concurrence explained that the instruction had been confusing or misleading because it obscured the standard of care that a jury applies to evaluate whether a physician was negligent, and because it directed the jury to consider whether a physician was negligent based on a consequence of that determination — whether the physician guaranteed a good result — which was irrelevant to the jury’s assessment of a physician’s performance under the standard of care. DECISIONS OF THE OREGON COURT OF APPEALS Pre-litigation demand letter held protected activity under ORS 31.150, Oregon’s anti-SLAPP statute, and litigation privilege can defeat claim for intentional infliction of emotional distress. Davoodian v. Rivera, 327 Or App 197 (2023); Ortega, J. The defendant was represented by Elizabeth Savage. Ashley Vaughn and Caitlin Mitchell filed an amicus brief on behalf of OTLA. The plaintiff, an anesthesiologist at OHSU, met the defendant through an online dating app. The plaintiff said they engaged in consensual sex; the defendant said it was sexual assault. The defendant’s attorney sent the plaintiff a letter advising the plaintiff that the defendant intended to file a civil complaint alleging that the plaintiff had sexually assaulted the defendant and seeking $2 million in damages. A draft complaint was attached to the letter, and the complaint the defendant ultimately filed in court was nearly identical to the draft complaint. In response, the plaintiff brought this civil action against the defendant for intentional infliction of emotional distress (IIED). The defendant filed a special motion to strike under ORS 31.150, Oregon’s anti-SLAPP statute, arguing that drafting a civil complaint and mailing it to the proposed defendant (the plaintiff here) prior to filing it are protected as part of a person’s right to petition the government on issues of public interest, and that the plaintiff here had failed to establish a prima facie case on his IIED claim. The trial court denied the motion. The Court of Appeals reversed, holding that the defendant had established that the plaintiff’s claim arose out of protected activity under ORS 31.150(2) (d), viz., “conduct in furtherance of the exercise of the constitutional right of petition … in connection with a public issue or an issue of public interest.” Specifically, litigation between private parties is protected petitioning activity, the defendant’s conduct facilitated the initiation of a lawsuit against the plaintiff for sexual assault, and sexual assault is an issue of public interest, particularly where the claim arose from an alleged sexual assault by a person who identified himself on an online dating app as an employee at a prominent public hospital. The Court of Appeals also held that the plaintiff had failed to establish a prima facie case on his IIED claim because there was no special relationship between the parties, and the defendant’s conduct was protected by the litigation Sheets Continued from p 53
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