OTLA Trial Lawyer Fall 2020

55 Trial Lawyer • Fall 2020 See Sheets p 56 On a large construction project, a subcontractor hired Quality Plus to fab- ricate piping. The piping had to be re- placed when it was discovered one of the settings on the machine used to weld the pipes had been mistakenly calibrated during a service call. The subcontractor sued Quality Plus as a result, and Qual- ity Plus, in turn, sued the manufacturer of the welding machine, Georg Fischer, for negligence. The jury found in favor of Quality Plus against Georg Fischer. Georg Fischer appealed, arguing the economic loss rule barred Quality Plus’ claim for negligence, because Quality Plus did not own the piping that was defective (the subcontractor did). The Court of Appeals affirmed, explaining the defective piping was a physical loss to Quality Plus, because Quality Plus held the piping as bailee for the subcon- tractor, and that bailment sufficed to take the case out from under the economic loss rule. A trial court cannot issue a discovery sanction for willfully violating a court’s order unless there is evidence in the record that the party, and not someone else, voluntarily engaged in conduct that violated the order. Chong Ok Chang v. Eun Hee Chun, 305 Or App 144 (2020); Lagesen, J. The plaintiff was represented by George Kelly. A man had a second family without telling or leaving his first family. The first family found out and confrontations ensued with the second family suing the first family for intentional infliction of emotional distress (IIED), amongst other claims. A psychologist’s office re- fused to release the records of one of the minor children of the second family even though the child and his mother had both signed written authorizations allow- ing for disclosure. In a letter, the psy- chologist’s office stated it was “unable to provide” the records because “our client has not freely authorized their disclo- sure,” and it had a duty to safeguard them under Washington law. The trial court dismissed the minor child’s IIED claim as a discovery sanction for willfully vio- lating the trial court’s order that such records be produced. The Court of Appeals reversed and remanded the minor child’s IIED claim. The Court of Appeals concluded willful violation occurs when a party, with knowledge of the order and its require- ments, voluntarily chooses not to com- ply. Here, the Court of Appeals found the letter did not state anything about what the minor child did to cause the psychologist’s office to reach the conclu- sion it could not produce the records. Instead, the office seemed to base its determination upon its perceived inter- pretation of Washington law. Thus, the Court of Appeals held the record did not support the trial court’s factual finding that the minor child acted willfully. Therefore, the trial court abused its dis- cretion in dismissing the claim. The attorney of a prevailing party in litigation cannot enforce a judgment lien for attorney fees against the losing party of that litigation without first fil- ing a notice of claim of the lien. Kajuanda Jones v. Keya Bhattacharyya, 305 Or App 503 (2020); Kamins, J. The plaintiff was represented by Brooks Coo- per and Mark Maricle. An attorney successfully represented the plaintiff in a civil action against the defendant. The court awarded the plain- tiff attorney fees in a supplemental judgment. The attorney commenced garnishment proceedings for the fees, but the defendant had already paid the fees to the plaintiff, the attorney’s client, who was the listed judgment creditor. The attorney had not yet filed notice of his claim of a lien. The trial court denied the defendant’s challenge to the garnishment because the defendant had not paid the fees directly to the attorney. The Court of Appeals reversed and