45 Trial Lawyer • Summer 2023 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 response in opposition to a motion to exclude evidence is sufficient to preserve for appellate review the arguments made in that response. Lawrence v. Oregon State Fair Council, 370 Or 764 (2023); Walters, S.J. The plaintiff was represented by Kevin Lafky. In this case, the plaintiff sued the defendant for negligence after falling on the defendant’s property. In support of his claim, the plaintiff alleged the defendant had failed to supervise and maintain its premises in a reasonably safe manner. Before trial, the defendant moved to exclude the plaintiff’s evidence that another person had fallen in the same location at a similar time. In support of the motion, the defendant argued, under OEC 403, that the evidence’s probative value was outweighed by its prejudicial effect. The plaintiff filed a written response in opposition to the defendant’s motion. The trial court ultimately granted the motion. Later, at trial, the defendant opened the door to the evidence by arguing that no other person had fallen at that location. The trial court adhered to its prior ruling and excluded the evidence. On appeal, the Court of Appeals held that the plaintiff had not preserved his argument that the trial court erred by excluding the evidence under OEC 403 because, in the Court of Appeals’ view, the basis of the trial court’s decision was unclear. The Supreme Court reversed, explaining what each party must do to preserve evidentiary arguments for appellate review. According to the Supreme Court, the party seeking exclusion must identify the challenged evidence and state a legal basis for its exclusion. The party opposing exclusion preserves any arguments they make in response. In this case, the defendant’s only stated basis for exclusion was OEC 403, and the plaintiff responded to that argument both pretrial and during trial. The Supreme Court therefore held that the plaintiff had preserved his argument for appeal. ORS 646.608(1)(b) and (1)(e) do not require proof that a defendant’s conduct was material to consumer purchasing decisions. State ex rel. Rosenblum v. Living Essentials, LLC, 371 Or 23 (2023); Garrett, J. The State was represented by Carson Whitehead. Nadia Dahab and John Stephens filed an amicus brief on behalf of OTLA. The defendants in this case advertise and sell 5-Hour Energy products in Oregon. The attorney general sued the defendants, alleging their advertisements contained false representations about the characteristics of 5-Hour Energy products in violation of Oregon’s Unlawful Trade Practices Act (UTPA). Specifically, the attorney general alleged that the defendants violated ORS 646.608(1)(b), which makes unlawful conduct that, in the course of the defendants’ business, “causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of real estate, goods or services,” and ORS See Sheets 46
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