Oregon Court of Appeals Issues a Ruling Affecting the Scope of Issues for Trial


Posted on February 1, 2017

by Jeff Young

 

Today, the Oregon Court of Appeals issued an opinion that has implications for defense lawyers. Generally, the parties may only try the issues raised in the pleadings. The question then arises whether a matter is truly “outside the scope of the pleadings.”

 

In Lydia Patricia Bergstrom v. Associates for Women’s Health of Southern Oregon, LLC, 283 Or App 601 (2017), the Oregon Court of Appeals decided that it was error for the trial court to exclude the testimony of plaintiff’s expert as irrelevant because the allegation in the complaint (that defendants knew or should have known of the risk of a very large baby and shoulder dystocia) was sufficiently broad to make testimony about negligently performed and interpreted ultrasounds relevant. The complaint did not contain any specific allegations relating to the ultrasounds, but the Court of Appeals reasoned that ultrasounds are important in assessing fetal size and shoulder dystocia.

 

The Bergstrom case highlights the importance of pretrial motions under ORCP 21 D to make the allegations of the complaint more definite and certain. Oregon law does not permit pretrial expert discovery, which means that defendants rely heavily on the issues described in the complaint in preparing for trial. Greater specificity in the pleadings will hopefully alleviate some of the unexpected surprises for defendants at trial.

 

(Read the full opinion here: http://www.publications.ojd.state.or.us/docs/A158700.pdf)