46 Trial Lawyer • Spring 2024 proponent to overcome that presumption. Because the defendant’s arguments primarily arose from the “possibility of disclosure” of emails left on an employer’s server, without any evidentiary showing that they were or could be disclosed, the Supreme Court concluded that the defendant had not overcome the presumption of confidentiality. The court similarly concluded defendant’s secondary argument — that Gollersrud had waived privilege by not deleting the emails when his employment terminated — was unavailing. Because waiver focuses on an actual disclosure, express or implied, and “the [evidentiary] record here is essentially blank,” any analysis of waiver under OEC 511 is inapplicable. The statute of ultimate repose in ORS 12.115(1) applies to claims for purely economic loss. Marshall v. PricewaterhouseCoopers, LLP, 371 Or 536 (2023); Flynn, C.J. The plaintiff was represented by John Dunbar. Kristen Williams filed the amicus brief for OTLA. The defendant law firm advised the plaintiffs regarding the potential tax ramifications of a proposed business transaction. Fourteen years later, the plaintiffs filed an action against the defendant, alleging that, as a result of the defendant’s negligent advice, the plaintiffs had incurred more than $2 million in legal fees and approximately $20 million in liability for back taxes, penalties and interest. The trial court dismissed the plaintiffs’ negligence claim after concluding that it was time-barred by ORS 12.115(1), a 10-year statute of ultimate repose that governs actions for “negligent injury to person or property.” The plaintiffs appealed, and the Court of Appeals reversed, concluding that the phrase “negligent injury to person or property” in the statute did not encompass — and therefore the statute did not bar — the plaintiffs’ claim because the injury alleged was for purely economic loss. The Supreme Court reversed the Court of Appeals decision, holding that the time limitation in ORS 12.115(1) applies to negligent injuries to purely economic interests. The Supreme Court explained that, when ORS 12.115(1) was enacted, the phrase “negligent injury to person or property” — particularly the word “property”— was commonly understood as reaching injuries that consisted of purely economic loss. The court further explained that the legislative history of ORS 12.115(1) supported the conclusion that the legislature had intended the 10-year limitation to apply to claims of professional negligence, including such claims alleging injury to purely economic interests. Accordingly, the court concluded that ORS 12.115(1) applied to the plaintiffs’ negligence claim. Justice James dissented, noting that the Supreme Court had not articulated a methodology for determining whether a statutory term is one of “common usage” or a “term of art.” Justice James explained how that lack of methodology had resulted in a potential bias towards “term of art” definitions in the legal context. Given that Oregon employs a citizen legislature, Justice James would adopt a presumption that the legislature utilized the common definition of a term, unless the legislative record established that the legislature knowingly adopted a “term of art” definition. Turning to ORS 12.115(1), Justice James was not persuaded that the term “property” should be treated as a legal term of art because the legislative history did not provide an indication that the legislature knowingly employed the term in that manner. Thus, Justice James concluded, the legislature had utilized a “common usage” definition of property that implied tangibility, such that ORS 12.115(1) does not reach purely economic loss. Justice Masih authored a separate Sheets Continued from p 45
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