The Court of Appeals affirmed. With respect to the covid relief statute, the court referred to its recent decision in Mouton v. TriMet, 331 Or App 247, 60 (2024), which holds the 90-day “sunset” provision did not extend the statute of limitations past the repeal date set forth in Section 7(1). The court also rejected the plaintiff’s discovery rule argument, reasoning that, because “plaintiff discovered damage that would have supported a claim on the day of the accident,” the statute began to run on that date and was not tolled until the plaintiff could determine the full scope of the harm. Claim for damage from tenants’ use of methamphetamine fell under exclusion for damage caused by release of contaminants; drug use was not “vandalism” within the meaning of insurance policy because use was an act performed with the intent of causing harm to the property. Lockner v. Farmers Ins. Co., 333 Or App 27 (2024); Mooney, J. The plaintiff was represented by Nicholas Thede. The plaintiffs are the owners of a rental property who brought a claim against their insurer for failure to cover the damage caused by the tenants’ use of methamphetamine in the property. Farmers based its denial on an exclusion for damages caused by the “release, discharge or dispersal of contaminants, pollutants, insecticides, or hazardous gasses or chemicals.” The plaintiffs argued the act of smoking methamphetamine constituted “vandalism” and was therefore a covered event. The trial court held in favor of the defendant. The Court of Appeals affirmed, explaining the event did not constitute vandalism because there was no evidence the tenants intended to cause harm to the property; as such, the exclusion applied. Exhibits that are admitted into evidence, regardless of how they are designated, should be made available during jury deliberations under ORCP 59 C(1). Martineau v. McKenzie-Willamette Med. Ctr., 332 Or App 473 (2024); Aoyagi, J. The plaintiff was represented by Travis Eiva. On remand from the Supreme Court, the Court of Appeals addressed two issues not reached in its prior decision in Martineau v. McKenzie-Willamette Med. Ctr., 320 Or App 534, 514 P3d 520 (2022), rev’d, 371 Or 247, 533 P3d 1, adh’d to as modified on recons, 371 Or 408, 537 P3d 542 (2023). Both issues relate to the plaintiff’s wrongful death claims against the defendant medical providers, arising from the death of a 29-year-old man from a cardiac injury. The first issue on remand was whether the trial court erred by excluding admission and excluding from the jury’s deliberative materials an exhibit the plaintiff used to cross-examine a defense expert. The trial court declined to receive the exhibit but allowed the plaintiff to use the exhibit for illustrative purposes. On appeal, the court of appeals held, relying on its earlier decision in Christensen v. Cober, 206 Or App 719, 138 P3d 918 (2016), that because the exhibit was not admitted into evidence at all, the trial court did not err in excluding it from the jury’s deliberative materials. The court further held the trial court did not err in not admitting the exhibit. The second issue on remand was whether the trial court erred in allowing the plaintiff to describe, but not publish for the jury, an image in a medical treatise. The court of appeals held the trial court had not erred, noting the ruling allowed a reasonably complete presentation of the evidence and was not fundamentally unfair. Expert testimony intended to provide an overview of EPA’s regulation of pesticides was not a subject within the purview of an average juror and thus was appropriate for expert testimony. Johnson v. Monsanto Co., 333 Or App 678 (2024); Tookey, J. The plaintiff was represented by Eric Pearson. In this injury case, the plaintiff sued Monsanto Company, alleging his use of a pesticide, RoundUp, which was manufactured by the defendant, caused him to develop Non-Hodgkin’s Lymphoma. The plaintiff appealed a judgment entered after the jury returned a verdict for the defendant. On appeal, the plaintiff contends the trial court erred in excluding the testimony of an expert on Environmental Protection Agency regulations. The defendant cross-assigned error, contending the trial court erred in denying its motion for a directed verdict on the basis that the Federal Insecticide, Fungicide, and Rodenticide Act expressly and impliedly preempts the plaintiff’s claims. On the plaintiff’s assignment of error, the Court of Appeals held the trial court erred in excluding the EPA regulation expert. The court explained the EPA’s regulation of pesticides under FIFRA is not a subject within the purview of an average juror and thus was a matter appropriate for expert testimony that would be helpful to the jury. On the defendant’s cross-assignment of error, the court held FIFRA did not expressly or impliedly preempt the plaintiff’s state-law claims and, thus, the trial court did not err in denying the motion for directed verdict. Between the Sheets continued from p. 53 54 Trial Lawyer | Fall 2024
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