Every summer, my wife and I arrange to meet her coworkers on the banks of Quartzville Creek just above Foster Reservoir in rural East Linn County. We bring paddleboards, kayaks and jet skis. I smoke salmon fillets and a brisket. People bring side dishes and we spend a day on the water away from stressful work. Many in attendance were investigators at Child Protective Services and their community partners. During this outing two years ago, one of those community partners met me on the dock for a jet ski lesson. “You don’t remember me, do you?” Mary Middleton asked. “Of course, I know you, Mary. You have worked with Michelle for years. She gushes over the services you provide.” I thought this was a great opportunity to shore up an already strong relationship between my wife and her friend. Then the conversation took an unexpected turn. “Yeah, but you don’t remember that you represented my stepfather when I was a kid. I was a teenager and you really changed the trajectory of our lives.” Middleton told me her dad’s name and the memories came gushing back. He was a Vietnam War veteran who drove a bus for a living. He loved photography and had a rebellious teenage daughter! We laughed and I asked about her stepfather. He passed away a decade earlier. Thinking about him, she paused and then choked up. “He always tried his best to make our lives better,” she said. “He was very vulnerable during the lawsuit. The money that came in from that case stabilized our lives. It allowed him to choose a better life for us.” Middleton reinforced what I always believed about civil justice. The life you choose as a civil justice lawyer changes the lives of your clients. That is a perspective that followed me from private practice to the bench and leads to an overarching question in each and every case I hear: how will this decision effect people’s lives? I end up asking myself that question in the oddest contexts. How did ORS 31.710(1) (commonly called liability caps) effect people’s lives? How did the Oregon Constitution effect ORS 31.710(1)? How did the workers’ compensation law effect liability caps? The Oregon Supreme Court seemed to answer those questions in Lakin v. Senco Products, Inc., 329 Or 62, 987 P2d 463, clarified, 329 Or 369, 987 P2d 476 (1999). Then came the tectonic change in Horton v. Oregon Health Science University, 359 Or 168, 376 P3d 998 (2016). Overnight, the debate shifted from “caps do not apply” to “is proportionality under the remedies clause of the Oregon Constitution an answer to caps?” Or “is there a statutory exception to caps?” Attorneys from the OTLA asked those questions and made those arguments because liability caps adversely effected the trajectory of people’s lives. Because of those vigorous debates and the hard work of civil justice lawyers, we learned the answer to some of those questions. The constitutional principle of proportionality under the remedies clause of Article I § 10 of the Oregon Constitution did serve as an exception to caps. Laws like Oregon’s workers’ compensation statute did limit the imposition of caps. Vasquez v. Double Press Mfg, Inc., 364 Or 609, 437 P3d 1107 (2019). While the legislature answered those questions by eliminating liability caps, other questions remain. The other question that immediately comes to mind is whether the liability caps in cases of wrongful death are truly legislative mandates that did not exist when the legislature created the wrongful death statute. This is an important issue yet to be resolved. OTLA remains relevant because attorneys like you, attorneys who engaged in civil justice, dedicating your lives to creating positive changes in the lives of others, people like Middleton. JUDGE JAMES EGAN serves on the Oregon Court of Appeals. In the past, he served as a circuit court judge for Linn County where he presided over many civil and criminal trials. Egan also served as the chief judge in the juvenile court, probate court and civil court in Linn County. The Oregon Court of Appeals is located at 1163 State St, Salem, OR 97301. He can be reached at [email protected]. View from the Bench Civil Justice: It’s the Life We Choose That Changes People’s Lives by Judge James C. “Jim” Egan “OTLA remains relevant because attorneys like you … dedicating your lives to creating positive changes in the lives of others.” 10 Trial Lawyer | Fall 2024
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