The statute also provides that all agreements or warranties contrary to the provisions of the language quoted above are void. Id. par. (1)(b). Defendant Employer argues that the merger agreement provisions that transferred Defendant Property Owner’s liabilities to Employer along with Property Owner’s assets are void under this section because they are contrary to the language barring “claims for contribution or indemnity asserted by third persons from whom damages are sought on account of such conditions.” Def Motion at 9, lines 7-8 (emphasis by defendant). The problem with defendant’s argument is the plain language of the statute. This is not a claim asserted by a “third person from whom damages are sought.” That third person against whom damages are sought might be the property owner, but the property owner has made no claim for indemnity against the employer here. The claim the employer seeks to dismiss is a claim by a person to whom the employer is allegedly liable because it assumed the liabilities of the property owner. The statute does not mention such a claim. Coon’s briefing simply and effectively summarizes, then dispenses with, the opposition’s argument, despite the case presenting complex factual and legal issues. Of course, it is one of many examples of his excellent legal advocacy over many decades on behalf of injured Oregonians. Immediately before the summary judgment hearing, the case settled for seven figures, paid out-of-pocket by the defendant, who lacked insurance for the event. Cross Examination of Defense Experts Cross examination of defense experts is often a critical part of trial. OTLA, through the great work of attorneys like Ben Cox and others, has amassed abundant resources to help examine the most frequently used defense witnesses. A couple of recent observations from watching OTLA colleagues in action stand out. In Brent and Bill Barton’s bicycle case in federal court a few years ago, which resulted in a large verdict including punitive damages, Brent Barton’s cross examination of the defense’s collision reconstructionist impressed me. Rather than rely on a complex, digital recreation of the collision on a screen, he repeatedly used large cardboard boxes on the floor of the courtroom to simulate the position of the vehicles involved, providing simple and effective visuals. When the expert failed to squarely answer a question, Barton responded, “respectfully, sir, that was not my question,” taking the polite and professional approach rather than acting upset or emotional. This approach came to mind a couple years later, when I heard his dad, Bill Barton, speak about “weaponizing professionalism,” which requires taking the high road and maintaining credibility to a degree that makes your opponent look evasive and unprofessional if they fail to do the same. I have also enjoyed watching Greg Kafoury pull back the curtain for the jury on the defense medical exam industry in his cross examination of defense doctors. First by eliciting testimony regarding the several companies hired by defense firms for injury cases, then by having the witness acknowledge that such companies are What We Can Learn from Our OTLA Peers continued from p. 39 40 Trial Lawyer | Fall 2024
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