OTLA Trial Lawyer Fall 2020

54 Trial Lawyer • Fall 2020 306 Or App 103 (2020); Kistler, S.J. The plaintiff was represented by Steve Wilk- er. The plaintiff, who is LGBTQ, sued to recover damages caused by the defen- dant’s breach of a settlement agreement. During voir dire , the plaintiff ’s counsel asked one juror (Juror R) for the juror’s opinion on same-sex marriage. Juror R answered, “I don’t think it’s a marriage.” The plaintiff requested Juror R be ex- cused for cause, but the court declined. At the conclusion of voir dire , the plain- tiff used all of the plaintiff ’s peremptory strikes, but did not strike Juror R. Con- sequently, Juror R was empaneled as a juror for the trial. The jury returned a disappointing verdict for the plaintiff. The plaintiff appealed, challenging the trial court’s failure to excuse Juror R for cause. The Court of Appeals affirmed, holding that, because the plaintiff could have but did not use a peremptory strike on Juror R, after the trial court had passed Juror R for cause, the plaintiff failed to establish that the trial court’s for-cause ruling prejudiced the plaintiff. If a party has any peremptory strikes left when a trial court passes a juror for cause, the party must strike that juror (and use up all of the party’s other peremptory strikes) or forfeit the ability to appeal the trial court’s for-cause ruling. Business records exception to hearsay rule applies to records received from third party when the third party had a duty to maintain accurate records and report accurately to the party introduc- ing the records, and the party relied on those records in its business. Arrowood Indem. Co. v. Fasching , 304 Or App 749 (2020); Mooney, J. The defendant was represented by Jonathan Radmacher. The plaintiff, an insurer, paid a lender’s insurance claim for losses the lender sustained after the defendant borrower defaulted on his student loans. The insurer then brought a subrogation action against the defendant, and the parties filed cross motions for summary judgment. The insurer relied on its claims file, including various proof-of- loss records submitted to it by the lender (its insured). The insurer claimed those were business records admissible under OEC 803(6). The borrower ar- gued the insurer’s affiant failed to satisfy the foundational requirements of OEC 803(6), resulting in a lack of admissible evidence and requiring judgment in his favor. The trial court entered summary judgment for the insurer. The Court of Appeals affirmed, hold- ing third-party business records con- tained within another business’s records (such as the lender’s proof-of-loss records here) are admissible when the party of- fering the records demonstrates that (1) the third party had a duty to accurately record the information in the regular course of its business (which the lender, a federally-regulated financial institution, did); (2) the third party had a duty to accurately report that information to the business whose records are being offered (which the lender did, pursuant to ORS 746.100, which prohibits lying to insur- ers); and (3) that the business whose records are being offered adopted and relied upon that third-party information in the regular course of its business (which the insurer did). Because the in- surer established those three require- ments, the third-party records were ad- missible as its own, adopted business records. Where the plaintiff serves as a bailee of personal property for another person, and the defendant damages the prop- erty, the economic loss rule does not bar the plaintiff from suing the defendant for negligence. JHKelly, LLC v. Quality Plus Svcs. Inc., 305 Or App 565 (2020); James, J. The plaintiff was represented by Elizabeth MacGregor. Sheets Continued from p 53