46 Trial Lawyer • Summer 2023 that defendant Carter’s conduct was a cause of those injuries and hold defendants liable for those injuries; but that (2) in determining the amount of damages to award, the jury should award the damages permitted by the damages instructions.” Because the plaintiffs only objected to the failure to give a substantial factor instruction and did not ask the trial court for clarifying instructions, the Supreme Court concluded the trial court did not err. DECISIONS OF THE OREGON COURT OF APPEALS Where a trial court provides education and questions specifically directed toward the source of a potential juror’s expressed skepticism, the juror’s answers to those questions may suffice as evidence the juror could be impartial. Hartt v. City of Keizer, 342 Or App 515 (2023); Kamins, J. The plaintiff was represented by William J. Macke. The plaintiff in this case sued the City of Keizer for negligence, seeking $7.5 million in damages for injuries he suffered when he was bitten by a police K-9 unit during his arrest. During voir dire, one of the potential jurors expressed skepticism about the amount of damages the plaintiff sought. In response, the trial court attempted to rehabilitate the juror, offering her education and questions specifically directed to the source of her expressed skepticism. The plaintiff moved to excuse the juror for cause, which the trial court denied. After a defense verdict, the plaintiff appealed, assigning error to the trial court’s denial of his motion to excuse the juror for cause. The Court of Appeals affirmed, holding that after the trial court educated the potential juror and asked her questions directed to the source of her express skepticism, the answers she gave provided sufficient evidence from which the trial court could find that, despite her expressed skepticism, the juror could be fair and impartial. 646.608(1)(e), which makes unlawful conduct in which the defendants “[r] epresen[t] that real estate, goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, quantities or qualities that the real estate, goods or services do not have.” After a bench trial, the trial court ruled in favor of the defendants. The trial court held that ORS 646.608(1)(b) and (1)(e) required the attorney general to prove the defendants’ alleged conduct was “material to consumer purchasing decisions,” and that the attorney general had failed to do so. The Court of Appeals affirmed. The Supreme Court reversed. After examining the text, context, and legislative history of ORS 646.608(1)(b) and (1)(e), the Supreme Court held that neither provision requires a showing that a defendant’s conduct was “material to consumer purchasing decisions.” The Supreme Court also rejected the defendants’ argument that, without a materiality requirement, both provisions violate the free speech guarantees of Article I, section 8, of the Oregon Constitution and the First Amendment to the United States Constitution. In a negligence case with multiple possible causes of harm, the “but-for causation” instruction is proper and may be clarified to emphasize that a defendant is still liable even though the defendant’s conduct was not the only cause. Haas v. Carter, 370 Or 742 (2022), Walters, S.J. Kathryn Clarke represented the plaintiffs and Travis Eiva filed the amicus brief for OTLA. In this negligence action, the plaintiffs were injured in their stopped car when rear-ended by the defendant. The plaintiffs had pre-existing medical conditions and the trial court instructed the jury on “but-for causation,” declined to give the “substantial factor causation” instruction, and instructed the jury on “previous infirm condition” when considering damages. The jury returned a defense verdict and the plaintiffs appealed, arguing they were entitled to the substantial factor instruction because there were multiple possible causes, including preexisting conditions, which caused the plaintiffs’ harm. The Court of Appeals applied a workers’ compensation paradigm to conclude that an underlying condition can only be a cause of injury “when the condition actively contributes to causing the injury.” Because the plaintiffs “had not adduced evidence that there were multiple potential causes of their injuries,” the trial court did not err in declining to give the substantial factor instruction. The plaintiffs sought and the Supreme Court allowed review of that decision. On review, the Supreme Court agreed that the trial court did not err, and disagreed with the Court of Appeals’ analysis. The court concluded that a “but-for causation” instruction is sufficient in most cases and that the substantial factor test is limited to those cases “in which the concurrent conduct of two or more causes combine to create an injury.” The court clarified that a preexisting condition instruction is addressed only to damages, and not causation. The court concluded, however, that because defendants will likely argue in such cases that a plaintiff’s preexisting condition was the only cause of harm, or that the defendant should not be held liable for the full extent of the plaintiff’s harm, the court suggested that clarifying instructions may be required. In addition to the “but-for causation” instruction, the jury could further be instructed “that ‘many factors may operate either independently or together to cause injury,’ and that it ‘may find that defendant’s conduct caused the injury even though it was not the only cause.’” The court also suggested that, in this case, the jury could have been instructed “that (1) even if it found that plaintiffs’ preexisting conditions were a cause of their injuries, it could also find Sheets Continued from p 45
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