Initially, the Oregon Supreme Court held the trial court erred in denying the defendant’s for-cause challenge: the trial court should have excused the prospective juror for actual bias. The Oregon Supreme Court relatedly held the trial court relied too heavily on the prospective juror’s statement — made in response to leading questions from the prosecutor designed to “rehabilitate” her — that she could be fair. The Oregon Supreme Court further explained that, because such juror rehabilitation is ineffective at ensuring the fairness and integrity of a trial, the trial court should have given more weight to the prospective juror’s unprompted statement she did not think she could be fair and should have given less weight to her answers to questions designed to rehabilitate her. However, the Oregon Supreme Court further concluded the error did not merit reversal because it did not amount to a prejudicial error in that it did not ultimately affect the defendant’s right to a fair trial. The fact the defendant used one of his peremptory challenges to excuse the prospective juror did not make the error prejudicial in respect to that substantial right, because peremptory challenges have no constitutional significance in and of themselves. In short, a defendant’s loss of a peremptory challenge, used to excuse a prospective juror in a criminal case after a trial court erroneously failed to remove the juror for cause, is not reversible error because the error does not prejudice the defendant in respect to any substantial right, as required under ORS 131.035. DECISIONS OF THE OREGON COURT OF APPEALS When a physician prescribes drugs to a patient in violation of the statutory standard of care and, as a result, the patient foreseeably injures third parties, the physician may be liable to the third parties in negligence. Stone v. Witt, 331 Or App 722 (2024), Aoyagi, P.J. The plaintiff was represented by Kathryn Clarke. While riding her bicycle, Dr. Stone was struck and killed by a vehicle driven by Shante Witt. The plaintiff, the personal representative of Stone’s estate, brought negligence claims against the defendants, who are medical providers and a pharmacy that, according to the plaintiff, negligently treated Witt before she hit Stone. The plaintiff alleged the defendants violated their statutory standards of care by prescribing and dispensing large amounts of addictive drugs to Witt, and by not taking steps to prevent Witt from misusing those drugs, despite knowing or having reason to know Witt was abusing drugs. The plaintiff further alleged that, as a foreseeable result of the defendants’ conduct, Witt drove a vehicle while under the influence of those drugs and struck and killed Stone. The trial court dismissed for failure to state a claim, reasoning that, because Stone was not the defendants’ patient, they were under no obligation to avoid creating a foreseeable risk of physical injury to her. On appeal of the resulting limited judgments, the Court of Appeals reversed. Applying Zavalas v. Department of Corrections, 124 Or App 166, 861 P2d 1026 (1993), rev den, 319 Or 150 (1994), the Court of Appeals ruled that, when a physician prescribes drugs to a patient in violation of the statutory standard of care and, as a result, the patient foreseeably injures third parties, the physician may be liable to the third parties in negligence. The Court of Appeals further held that the reasoning See Between the Sheets p. 56 55 Trial Lawyer | Summer 2024
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