Marineau v. A. P. Green Refractories Co.

120 P.3d 916, 201 Or. App. 590, 2005 Ore. App. LEXIS 1252
CourtCourt of Appeals of Oregon
DecidedSeptember 28, 2005
Docket0108-08417; A122321
StatusPublished
Cited by1 cases

This text of 120 P.3d 916 (Marineau v. A. P. Green Refractories Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marineau v. A. P. Green Refractories Co., 120 P.3d 916, 201 Or. App. 590, 2005 Ore. App. LEXIS 1252 (Or. Ct. App. 2005).

Opinion

EDMONDS, P. J.

Plaintiff, the personal representative of the estate of Nicklaus Marineau, appeals after the trial court, pursuant to ORCP 47, dismissed her action for wrongful death allegedly resulting from exposure to asbestos in a product manufactured by defendant. This appeal concerns the enforcement of a general order adopted by the Multnomah County Circuit Court that applies to all cases that allege damages resulting from asbestos exposure. We affirm for the reasons that follow.

On August 16, 2001, plaintiff filed a complaint for wrongful death against defendants based on an alleged exposure to asbestos. On August 31,2001, the Multnomah County Circuit Court promulgated a General Order regarding pleading in such cases that applies, by its terms, to plaintiffs action. The General Order authorizes plaintiffs to file complaints that do not identify the asbestos product that is alleged to have caused the plaintiffs harm or allege the details of causation, provided that a plaintiff later furnish a product identification report that includes not only the name of the product but “the date(s) of exposure, the duration of exposure, the job site or other site of exposure, * * * and the connection of the defendant with that exposure.” Under the order, no product identification report need be furnished if the complaint is pleaded “in a manner that complies with Oregon’s Tact pleading’ requirement.” If neither requirement is met, then the order provides that the plaintiffs are barred from offering product identification evidence in response to a summary judgment motion or at trial.

The trial court granted summary judgment to defendants after plaintiff failed to produce a product identification report within the time prescribed by the General Order.1 In opposition to defendant Whip Mix Corporation’s motion for summary judgment, plaintiff attached an affidavit that provided much of the missing product and causation information. In turn, defendant argued that the affidavit and product [594]*594identification information should be struck from the record because of plaintiffs failure to follow the provisions of the General Order. At the summary judgment hearing, 12 days before trial, plaintiffs counsel argued that, had plaintiff proceeded solely under the Oregon Rules of Civil Procedure, she would have had ample opportunity to amend her pleading before trial. The trial court pointed out that plaintiff had not sought leave to amend. Plaintiffs counsel then requested leave to amend plaintiffs complaint. The trial court denied that motion for several reasons, including plaintiff s failure to file a written motion.2

The trial court viewed the issues arising at the summary judgment hearing solely as pleading issues:

“[T]he problem here is that Defendants rely on the pleadings. Defendants are always entitled to rely on the pleadings. And if the pleadings aren’t sufficient enough to prepare a defense, to adequately defend, the defendants do not file motions to make more definite and certain because of this unusual procedure we’ve created that is designed for the benefit of all the litigants, the plaintiffs and the defendants.
“And when the plaintiffs want to take advantage of being able to plead very generally, more generally than might otherwise be sufficient, and the defendants don’t challenge that pleading with a motion to make more definite and certain because the defendants have every right to rely on the fact that they’re going to get more specific pleadings with a product ID statement, * * *
“So the system has worked pretty well, but the problem here is the reliance by the defendants on the expectation that they’re going to get more specific pleadings. So they really do not challenge your more general and insufficient pleadings when they are insufficient, because they’re expecting something more as the general order says.
“And when plaintiffs want to take advantage of the opportunity to plead very generally and then do not take the second step, which they don’t have to do if they’d been more specific in the first place, then that’s the problem. And [595]*595when we get down to the short strokes, that is, where we’re too late before trial, then it’s not fair. * * *
“So it’s not a causation issue. It’s not a damages issue. The question is whether you got evidence that you’re entitled to offer considering your pleadings.”

Ultimately, the trial court ruled that plaintiffs complaint failed to allege specific factual allegations as to defendant regarding the product at issue or the nature of the claimed exposure. Because plaintiff had not filed and served a product identification report as contemplated by the General Order or a timely motion to amend the complaint to meet Oregon’s fact pleading requirements,3 the trial court granted defendant’s motion for summary judgment:

“I’m going to grant the motion for summary judgment.
“With respect to findings about why this drastic remedy is appropriate, we are 12 days before trial. This motion for summary judgment was filed some — I assume 45 days before trial or there would have been a challenge to it on that basis. This case is almost two years old. Discovery is completed. The discovery cutoff date has passed. It is prejudicial to the defendant.
“I also might note that in the bigger picture in terms of the case management issues which I rely on in my inherent authority to manage the cases [.]
[596]*596«:jí % # ‡
“So, if the lawyers want to plead without filing — if the plaintiffs want to plead without filing product ID statements, they’re perfectly entitled to do that, as long as they plead sufficiently, or if they provided some notice to the defendant that they ought not rely on the case management orders * * * then that would be one thing. But that’s not where we are some 20-plus months after the case was filed. So that’s why I’m granting the motion for summary judgment.”

On appeal, plaintiff makes three assignments of error: (1) “The Court erred in granting defendant’s motion for summary judgment[;]” (2) “The Court erred, in refusing to allow plaintiff to amend her pleadings to specify the * * * product to which [the decedent] was exposed[;]” and (3) “The trial court erred in ordering a dismissal with prejudice to punish plaintiff for failing to plead the ‘product at issue or the nature of the claimed exposure.’ ” Plaintiff makes a number of arguments under these assignments, but as described below, the issue properly before this court is much more narrow than the above assignments would suggest.

In deciding plaintiffs appeal, we are mindful that the doctrine of preservation requires appellants to raise an issue to the trial court before we will review it on appeal. See ORAP 5.45. Our review of the trial court record reveals that plaintiffs opposition to defendant’s motion for summary judgment pertaining to the trial court’s authority to enforce the General Order consisted of oral argument to the trial court and two footnotes in her trial brief. Those two footnotes effectively summarize the issues she framed for the trial court to decide.- The first footnote states,

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Related

Weihl v. Asbestos Corp.
129 P.3d 748 (Court of Appeals of Oregon, 2006)

Cite This Page — Counsel Stack

Bluebook (online)
120 P.3d 916, 201 Or. App. 590, 2005 Ore. App. LEXIS 1252, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marineau-v-a-p-green-refractories-co-orctapp-2005.