Marineau v. A. P. Green Refractories Co.

Citations: 2005 Ore. App. LEXIS 1252; 201 Or. App. 590; 120 P.3d 916Docket: 0108-08417; A122321

Court: Court of Appeals of Oregon; September 28, 2005; Oregon; State Appellate Court

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The trial court dismissed the wrongful death action filed by the personal representative of Nicklaus Marineau, citing ORCP 47, due to the plaintiff's failure to adhere to a General Order from the Multnomah County Circuit Court regarding asbestos exposure claims. This General Order allows plaintiffs to file complaints without initially identifying the specific asbestos product or detailing causation, as long as they later provide a comprehensive product identification report. Such a report must include the product's name, exposure dates, duration, location, and the defendant's connection to the exposure. If this report is not submitted, plaintiffs are barred from presenting product identification evidence during summary judgment or trial.

In this case, the plaintiff did not produce the required report on time, leading to the trial court granting summary judgment for the defendants. Although the plaintiff submitted an affidavit with some missing information shortly before the trial, the defendants argued it should be excluded due to noncompliance with the General Order. The plaintiff's counsel contended that under standard Oregon civil procedure, an amendment to the pleading would have been permitted. However, the trial court noted that the plaintiff had not sought leave to amend prior to the summary judgment motion, and it denied the request based on procedural deficiencies, emphasizing the importance of sufficient pleadings for the defendants' ability to prepare a defense. The court reinforced that defendants are entitled to rely on the pleadings provided and that the established procedure was designed to ensure fairness for all parties involved.

The trial court ruled that the plaintiff's complaint lacked specific factual allegations related to the defendant and the product in question, leading to the granting of the defendant’s motion for summary judgment. The plaintiff did not file a product identification report or seek a timely amendment to the complaint as required by Oregon’s pleading standards. The trial court emphasized the urgency of the situation, noting that the case was nearing trial and that discovery had concluded, which could prejudice the defendant. The court acknowledged that while lawyers may plead without product identification statements, they must do so adequately.

On appeal, the plaintiff raised three assignments of error: 1) the court's error in granting summary judgment, 2) refusal to allow amendments to specify the product linked to the decedent, and 3) the dismissal with prejudice as a punitive measure for the plaintiff’s pleading deficiencies. The appellate court noted that the preservation doctrine requires issues to be raised at the trial level for them to be considered on appeal. The record indicated the plaintiff’s arguments against the motion for summary judgment were limited, consisting mainly of oral arguments and two footnotes. The first footnote questioned the court's authority to impose a pleading standard via a general order, and the second addressed the court’s authority to dismiss cases for non-compliance with such orders.

The appellate court understood the plaintiff's argument to center on whether the trial court's enforcement of the General Order was consistent with the Oregon Rules of Civil Procedure, which allows for regulation as long as it does not conflict with those rules. The plaintiff contended that the trial court improperly granted summary judgment without allowing her to rectify any deficiencies in her complaint. However, since this was the only issue raised regarding the court's authority, the appellate court dismissed the other arguments for lack of preservation.

A plaintiff in Oregon can amend a complaint without court approval before a responsive pleading is served or within 20 days after service for pleadings that do not allow a response. Defendants must respond within 30 days of service. The General Order allows the plaintiff to file a product identification report, functioning as an amendment, up to 60 days after filing the complaint or 10 days after service, whichever is later, and to amend this report up to 105 days before trial without needing court permission. This provision is more generous than the Oregon Rules of Civil Procedure. 

The court found that the plaintiff could not claim a right to amend her pleading further, as the product identification report was sufficient to meet the requirements. Despite the opportunity to amend, the plaintiff's complaint did not specify which of the defendant’s products were involved in asbestos exposure, failing to state a claim against defendant Whip Mix. The plaintiff delayed filing the product identification report for almost two years, doing so only in response to a motion for summary judgment. The court correctly enforced the General Order by striking a non-compliant affidavit from the summary judgment record. 

The General Order states that failure to timely produce product identification precludes the plaintiff from offering such evidence in response to summary judgment motions or at trial, resulting in the defendant’s motion being essentially unopposed. The court's decision to grant the motion for summary judgment was appropriate since the plaintiff did not address the pleading defects in a timely manner, despite the opportunity to amend as outlined in the Oregon Rules of Civil Procedure.

A party may amend its pleading only with court permission or written consent from the opposing party, with courts generally allowing amendments when justice requires. The plaintiff did not have an automatic right to amend after a summary judgment motion; such amendments are at the trial court's discretion. The trial court's denial of the plaintiff's motion to amend was justified, as granting it would undermine the General Order's purpose, which aims to streamline pleadings and ensure defendants receive adequate information to mount a defense. The plaintiff's proposal would have simplified their claim while exempting them from timely disclosure obligations to the defendant. Given the timing of the motion, potential prejudice to the defendant, and the impact on the General Order's effectiveness, the trial court did not abuse its discretion in denying the amendment. Consequently, the court affirmed the summary judgment in favor of the defendant. The General Order stipulates specific timelines for reports related to claims and amendments, emphasizing procedural requirements under ORCP 14 A and ORCP 23 A regarding written motions and amendments. ORCP 23 D mandates that any amendments filed before trial must be complete and self-contained. Additionally, the General Order outlines the necessary content for product identification reports related to claims.