392 P.3d 759
Or. Ct. App.2017Background
- Taylur DeWolf died after snowboarding off the Dog Leg run at Mt. Hood Ski Bowl; her father (Harry DeWolf) sued Ski Bowl for wrongful death alleging failure to warn/design/inspect and other negligence theories.
- During discovery plaintiff sought injury records for 10 seasons; the court ordered defendant to produce accident records on Dog Leg for two years before Taylur’s death.
- At a motions-in-limine hearing roughly 1½ weeks before trial, the court conditioned defendant’s ability to claim long-term "years of safety" on producing any documents supporting whatever temporal scope defendant would assert at trial (e.g., if defendant argued 40 years without similar incidents, it had to produce records covering that period).
- Defendant did not produce a 1-year-post-accident letter and video from Bowles documenting a serious crash “at or near Dog Leg.” At trial defendant argued broadly that Dog Leg had been safe for decades and that no similar catastrophic incidents had occurred.
- After a defense verdict (9–3), plaintiff moved for a new trial under ORCP 64 B, arguing defendant misconduct for nondisclosure, newly discovered evidence (Bowles), and that the court erred in allowing defendant to define "similar" incidents.
- The trial court granted a new trial, finding the court had erred in not making its discovery obligation clear and that defendant had violated the in limine production condition by withholding the Bowles letter; the court concluded that nondisclosure materially affected plaintiff’s rights. The appellate court affirms on the misconduct ground.
Issues
| Issue | DeWolf's Argument | Ski Bowl's Argument | Held |
|---|---|---|---|
| Whether the in limine order was ambiguous about the time period covered (could it require production of incidents up to trial) | The order tied production to whatever temporal scope defendant chose to assert at trial; Bowles letter fell within that scope | The order only covered incidents before Taylur’s accident (based on prior discovery requests and certain comments) | Court: No ambiguity in the order; it unambiguously covered the period defendant argued (including up to trial). The trial court’s stated legal-error ground was unsupported. |
| Whether withholding the Bowles letter and video constituted misconduct under ORCP 64 B(2) | Withholding a document that was plainly within the court’s production condition was misconduct that materially affected plaintiff’s rights | Bowles’s letter did not show a Dog Leg location, occurred after Taylur’s death, and did not reference a reverse-grade, so disclosure was not required | Court: Withholding was misconduct — the letter’s wording (“at or near dog leg”) and the production condition made it discoverable; defendant’s interpretation was unreasonable. |
| Whether the withheld Bowles evidence would have been admissible or prejudicial | Bowles’s declaration and helmet-cam would have shown a similar accident at the same terrain feature and rebutted defendant’s pattern-of-safety argument | Any evidence was cumulative or would have been inadmissible | Court: Evidence would likely have been admissible and was not merely cumulative; nondisclosure materially affected plaintiff’s ability to rebut the defense; trial court did not abuse discretion. |
| Standard for granting new trial and applicable review | New trial warranted if any ORCP 64 B ground is well taken and materially affected substantial rights; appellate review defers to trial-court factual findings but reviews legal rulings de novo | — | Court: Affirms new trial based on prevailing-party misconduct (ORCP 64 B(2)); declines to reach other trial rulings now. |
Key Cases Cited
- Gragg v. Hutchinson, 217 Or. App. 342 (2007) (appellate deferential standard when reviewing new-trial grounds)
- Bennett v. Farmers Ins. Co., 332 Or. 138 (2001) (legal-error review for new-trial orders based on law)
- State v. Farmer, 210 Or. App. 625 (2007) (abuse-of-discretion standard where no predicate legal error)
- D.C. Thompson & Co. v. Hauge, 300 Or. 651 (1986) (focus on sufficiency of evidence and level of misconduct in new-trial misconduct claims)
- Moore v. Adams, 273 Or. 576 (1975) (trial-court factual determinations at new-trial hearing receive deference)
- State v. York, 291 Or. 535 (1981) (distinguishing factual findings from legal conclusion of misconduct)
- Gross v. Hackers, 168 Or. App. 529 (2000) (declining to import federal bad-faith standard into ORCP 64 B(2))
- Williams v. Laurence-David, 271 Or. 712 (1975) (ORCP 64 B requires material effect on substantial rights to warrant new trial)