Dew v. Bay Area Health District
278 P.3d 20
Or. Ct. App.2012Background
- Donna Jones died after emergency gallbladder surgery; decedent's esophagus and stomach fluid were not reviewed by defendant before surgery.
- Plaintiff alleged defendant’s negligence included failure to review CT/x-rays and CT report and to ensure an NG tube preoperatively.
- During anesthesia planning, defendant told May that an NG tube was not needed; May later used an endotracheal tube as a makeshift NG tube when fluid escaped.
- Decedent developed pharyngeal tear and neck infection leading to death; plaintiff blamed defendant’s decision not to place an NG tube.
- Plaintiff sought to introduce pretrial deposition where defendant testified that, after looking at the CT scan, decedent could have benefited from an NG tube.
- Trial court excluded the deposition passage; verdict found defendant negligent but not causally related to death.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether exclusion of deposition testimony was error | Excluded testimony supported causation; relevant to whether NG tube would have been placed. | Testimony was a hindsight statement, not admissible for causation. | Reversed; exclusion erroneous; deposition relevant to causation. |
| Whether cross-examination of defendant about that admission was improperly barred | Cross-examination should be allowed to challenge defendant’s causation theory. | Relevance limited; not admissible to prove causation. | Reversed; cross-examination properly barred but error subsists due to deposition exclusion. |
Key Cases Cited
- Foxton v. Woodmansee, 236 Or. 271 (1963) (relevance of before-the-fact knowledge to negligence evidence)
- Shoup v. Wal-Mart Stores, Inc., 335 Or. 164 (2003) (test for when evidentiary error substantially affects rights varies by context)
- Lyons v. Walsh & Sons Trucking Co., Ltd., 337 Or. 319 (2004) (different kinds of trial errors require different analyses under ORS 19.415)
- Wallach v. Allstate Ins. Co., 344 Or. 314 (2008) (incorrect jury instructions may substantially affect a party's rights)
- Cler v. Providence Health System-Oregon, 349 Or. 481 (2010) (closing argument mischaracterizations can substantially affect plaintiffs' rights)
- Washington v. Taseca Homes, Inc., 310 Or. 783 (1990) (opponent's statement may have dual probative value and impeachment value)
- Gritzbaugh Main Street Prop. v. Greyhound Lines, 205 Or.App. 640 (2006) (evidentiary error analysis: some likelihood of affecting the verdict suffices)