52 Trial Lawyer • Winter 2023 jury instruction. The instruction allows a jury to impute a subordinate employee’s biased and retaliatory motive to the principal decision maker under certain conditions. Asante objected to the instruction, arguing that it (1) applies only to supervisors and not to co-workers, and (2) must include a negligence standard. The trial court ultimately gave the instruction, which allowed the jury to impute retaliatory motive to the employer if the jury found, among other things, that the same biased subordinate also “influenced, affected or was involved in the adverse employment decision” which, in turn, “was a substantial factor in the Defendant’s decision-maker’s adverse employment decision[.]” The jury returned a split verdict, finding in favor of Asante on the general unlawful retaliation claims and for the plaintiff on the safety-specific retaliation claims. The trial court then denied the plaintiff’s petition for attorney fees and costs. Asante appealed, assigning error to the “cat’s paw” instruction for misstating the law and being unsupported by the evidence. The plaintiff cross-appealed the trial court’s denial of fees. The Court of Appeals determined Asante was incorrect in arguing that the “cat’s paw” instruction is appropriate only when it involves supervisors rather than co-workers. Prevailing law supports imputation to the decision-maker when evidence supports a finding that the “non-decision-maker influenced or was involved in the adverse employment decision.” The court went on to conclude, however, that the instruction in this case was overbroad because it permitted the jury to also find that the biased employee may have “affected" the employment decision by, for example, lodging a complaint that initiated an inquiry. The court believed the instruction’s additional requirement that the “effect * * * was a substantial factor in defendant’s decision-makers’ adverse employment decision” did not cure that error. Because the issue might arise again on remand, the court concluded that the plaintiff’s direct verbal corrections of her co-workers also constituted statutorily-protected safety complaints. Where a defendant acts “recklessly” in its negligence, comparative fault principles do not apply, and liability is joint and several. Miller v. Agripac, Inc., 322 Or App 202 (2022); Aoyagi, J. The plaintiffs were represented by Nadia Dahab and Lin Thunder. In this personal injury action, the plaintiffs asserted claims for negligence, strict product liability and loss of consortium against the defendant based on Donald Miller’s exposure to the defendant’s asbestos-containing products in the late 1960s. To avoid the defense of comparative fault, the plaintiffs sought to prove the defendant’s negligent conduct was “reckless” in nature, and the jury was instructed on “recklessness” for that purpose. The jury returned a verdict in the plaintiffs’ favor on all three claims and found the defendant “reckless in its negligence.” The trial court ruled the defendant was subject to common-law joint and several liability because the action “arose” in the 1960s, such that the modern several-only liability statute did not apply, and entered a judgment for the plaintiffs. On appeal, the defendant raised three assignments of error. First, the defendant argued the trial court erred in ruling that the defendant was jointly and severally liable for the plaintiffs’ damages. Second, the defendant argued the trial court’s jury instruction on recklessness, as relevant to the defense of comparative fault, was inconsistent with the plaintiffs’ claims and contrary to Oregon law. Third, the defendant contended that, even if the recklessness instruction was correct, the evidence was legally insufficient to prove the defendant acted recklessly, and, thus, the trial court should have granted a directed verdict for the defendant on that issue. The Court of Appeals affirmed the trial court’s judgment. On the defendant’s second and third assignments of error, the court concluded the recklessness instruction correctly stated the legal standard for the type of conduct that the plaintiffs sought to prove, and the evidence was legally sufficient to go to the jury on recklessness so defined. On the first assignment of error, the court held, relying on Shin v. Sunriver Preparatory School, Inc., 199 Or App 352 (2005), that given the relationship between the comparative-fault defense and severalonly liability under existing law, and the jury’s finding that the defendant acted recklessly, any error in applying joint and several liability based on when the action “arose” was harmless. Cody Hoesly specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-2224424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals and full-scale trial and motions support for plaintiff attorneys. Recent practice areas include class actions, Oregon’s wage and hour law, product and premises liability, personal and business injury, and UIM. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Nadia Dahab specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 707 SWWashington St., Ste. 600, Portland, OR 97205. She can be reached at nadia@sugermandahab.com or 503228-6474. Sheets Continued from p 51
RkJQdWJsaXNoZXIy MTY1NDIzOQ==