Cler v. Providence Health System-Oregon
245 P.3d 642
Or.2010Background
- Cler suffered severe arm/hand injury from Adriamycin chemotherapy administered intravenously by Oregon Hematology Oncology Associates, PC.
- Plaintiffs alleged nurse failed to meet standard of care for oncology nursing during Cler’s treatment.
- During closing, defense counsel asserted facts about a nurse expert not present in the record, without objections by plaintiffs.
- Trial court allowed the closing-argument statements; defense did not call a nurse expert witness at trial.
- Jury returned verdict for defendant; plaintiffs moved for new trial arguing improper closing argument; trial court denied.
- Court of Appeals reversed abating the trial court’s discretion, holding error but not substantial prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defense closing arguments admitting facts outside evidence were reversible. | Cler argues improper closing argument violated evidence rules and prejudiced rights. | Arguments were permissible as missing-witness context and collateral to case. | Trial court abused discretion; reversal warranted |
| Whether missing-witness in closing argument was properly invoked and prejudicial. | Missed nurse witness in closing improperly invited inference harming Cler. | Missed-witness inference legitimate despite scheduling explanations. | Improper invocation; substantial prejudice found |
| Whether invited-response doctrine applies to sustain or bar reversal. | Plaintiffs invited improper argument via closing; inviting response should not excuse error. | Invited-response may offset provocation without reversal if no prejudice. | Invited-response did not justify excluding prejudice; reversal warranted |
| Did trial court's jury instructions cure the error. | Instructions could not cure misstatement of facts not in record. | Court’s admonitions and normal instructions should control. | Instructions not sufficient to cure error |
Key Cases Cited
- Bohle v. Matson Navigation Co., 243 Or. 196 (Or. 1966) (missing witness in closing argument permissible only when supported by evidence)
- Huber v. Miller, 41 Or. 103 (Or. 1902) (counsel must not state facts outside evidence)
- Kuehl v. Hamilton, 136 Or. 240 (Or. 1931) (fair trial requires limiting arguments to admitted evidence)
- Walker v. Penner, 190 Or. 542 (Or. 1951) (invited improper argument not license to respond with improper argument)
- Ireland v. Mitchell, 226 Or. 286 (Or. 1961) (closing arguments as persuasive narrative; not evidence)
- United States v. Young, 470 U.S. 1 (U.S. 1985) (invited-response doctrine informs whether response prejudices)
- Darden v. Wainwright, 477 U.S. 168 (U.S. 1986) (invited-response does not excuse improper comments but assesses effect)
- State v. Blodgett, 50 Or. 329 (Or. 1907) (trial court should intervene against improper argument; not preserved issues)