472 P.3d 778
Or. Ct. App.2020Background
- Robert Golik died of mesothelioma; a jury found Georgia-Pacific (successor to Crown Zellerbach) liable for exposures while he briefly worked as an insulator helper at Georgia-Pacific’s Camas mill. The trial court entered a general judgment for plaintiff.
- After trial, defendant obtained bankruptcy-trust claim materials it had requested in discovery that plaintiff had not produced, including a merchant‑marine affidavit in which Golik described daily asbestos exposure while a wiper aboard the SS Philippine Bear.
- Defendant moved for a new trial under ORCP 64 B(2) (misconduct) and B(4) (newly discovered evidence); the trial court granted a new trial and vacated the judgment, finding that local plaintiff counsel deliberately withheld the merchant‑marine affidavit and that the omission materially affected defendant’s rights.
- Plaintiff appealed the new‑trial order (arguing the omission was inadvertence and not misconduct); defendant cross‑appealed the denial of its JNOV motion (which it had preserved via a directed verdict motion).
- The court affirmed: it concluded the trial court permissibly inferred deliberate withholding by local counsel, that the omission materially prejudiced defendant’s ability to present its defense, and that the denial of JNOV was correct on the record (premises‑liability and statutory‑duty theories survived JNOV; the retained‑control common‑law theory did not).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to produce trust documents constituted "misconduct" under ORCP 64 B(2) | The omission was an inadvertent miscommunication between lead and local counsel and thus not "misconduct." | Withholding responsive trust materials (and local counsel’s silence) was misconduct that justifies a new trial. | Court upheld new trial: trier reasonably inferred local counsel deliberately withheld documents; that is misconduct. |
| Whether the misconduct materially affected defendant’s substantial rights | The withheld affidavit would have opened the door to other trust documents that implicated plaintiff’s claim of exposure at defendant’s mills; any prejudice was speculative. | The merchant‑marine affidavit provided detailed, long‑duration exposure (daily amphibole exposure for ~18 months) that materially impaired defendant’s defense that mill exposure was the substantial cause. | Court held the omission materially affected defendant’s rights and impaired its ability to present its exposure‑comparison defense; new trial warranted. |
| Whether JNOV should have been entered on premises‑liability claim (owner’s duty) | — (plaintiff prevailed at trial) | Defendant argued it owed no duty because the hazardous asbestos was brought by independent contractor AC&S; premises were safe when turned over. | JNOV denial affirmed: under Washington law (and Restatement §410 principle), owner can be liable for its own negligent direction of contractor to create a dangerous condition. |
| Whether JNOV should have been entered on negligence claim (retained‑control and statutory duty) | Plaintiff argued either retained‑control (making contractor effectively an employee) or statutory duty (former RCW 49.16.030) imposed duty. | Defendant argued retained‑control evidence was insufficient and thus no common‑law duty; statutory theory insufficiently pleaded or proven. | Court affirmed: retained‑control theory failed (insufficient evidence of pervasive/day‑to‑day control), but statutory‑duty theory remained viable; denial of JNOV was proper. |
Key Cases Cited
- DeWolf v. Mt. Hood Ski Bowl, LLC, 284 Or App 435 (2017) (trial court is finder of fact on new‑trial motion; deference to prejudice findings)
- State v. Rogers, 330 Or 282 (2000) (explains appellate review of trial court discretion)
- Building Structures, Inc. v. Young, 328 Or 100 (1998) (orders denying both new trial and JNOV are generally not appealable; but an order granting new trial with JNOV denial is reviewable)
- Hillman v. North. Wasco Co. PUD, 213 Or 264 (1958) (treatment of JNOV review when new trial is granted)
- Kamla v. Space Needle Corp., 147 Wash 2d 114 (2002) (attendance/invitee duties under Restatement §§ 343/343A adopted in Washington)
- Hymas v. UAP Distribution, Inc., 167 Wash App 136 (2012) (explains interplay of Restatement §§ 343/343A with §§ 409–429 and limits on owner liability for independent‑contractor acts)
- Epperly v. City of Seattle, 65 Wash 2d 777 (1965) (premises‑safe‑when‑turned‑over principle for independent contractors)
- Tauscher v. Puget Sound Power & Light Co., 96 Wash 2d 274 (1981) (landowner remains liable for its own negligence despite independent‑contractor rule)
- Afoa v. Port of Seattle, 176 Wash 2d 460 (2013) (retained‑control doctrine requires pervasive or detailed control to impute employer status)
- Kinney v. Space Needle Corp., 121 Wash App 234 (2004) (example where retained control over safety supported liability)