441 P.3d 617
Or. Ct. App.2019Background
- In April 2010 a Tri‑Met bus struck five pedestrians; plaintiffs Ryan and Jamie Hammel were injured; two others died. Plaintiffs retained McCulloch (Powers McCulloch & Bennett) and asserted claims against Tri‑Met but not against bus manufacturer New Flyer or mirror manufacturers Hadley and Rosco.
- Plaintiffs later replaced McCulloch with attorney Michelle Burrows after the statute of limitations had run on claims against New Flyer, Hadley, and Rosco.
- The various claimants reached a global settlement: Tri‑Met and New Flyer each paid $2 million (total $4 million). Rosco paid $225,000 (split equally among three products‑liability claimants); Hadley paid $300,000 ($100,000 per claimant). Plaintiffs received $325,000 of Tri‑Met’s $2 million but nothing from New Flyer, Rosco, or Hadley.
- Plaintiffs sued McCulloch and the firm for legal malpractice, alleging negligence in failing to assert products‑liability claims and that, but for that negligence, plaintiffs would have received shares of the other settlements.
- Defendants moved for summary judgment, arguing plaintiffs presented no admissible evidence that New Flyer, Rosco, or Hadley would have paid more or that other claimants would have accepted less; trial court granted summary judgment, excluding or discounting parts of the Burrows and Gores declarations as speculative/hearsay.
- The Court of Appeals reversed, holding the Burrows and Gores declarations were admissible and that, viewing the record in plaintiffs’ favor, reasonable jurors could infer but‑for causation and ascertainable harm (e.g., 16.25% share of New Flyer; $100,000 from Hadley; equal share of Rosco’s $225,000).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Burrows and Gores declarations | Declarations recount first‑hand participation in settlement/allocation discussions and are within affiants’ personal knowledge | Declarations are speculative, lack foundation, and rest on hearsay/opinion about others’ motives | Court: Paragraphs at issue were admissible under ORCP 47(D) because an objectively reasonable person could infer personal knowledge and competence |
| Causation (legal malpractice causation‑in‑fact) | But for defendants’ failure to sue New Flyer, Hadley, Rosco, plaintiffs would have received shares of those settlements (e.g., 16.25% of New Flyer; $100,000 from Hadley; equal share of Rosco’s $225,000) | Plaintiffs offered no evidence from settlors or claimant parties to show they would have paid/accepted different allocations; proof is speculative | Court: Viewing evidence and reasonable inferences in plaintiffs’ favor, genuine factual disputes exist; plaintiffs produced sufficient circumstantial evidence to survive summary judgment |
| Proof of damages/ascertainability | Settlement allocations and attorneys’ declarations allow a reasonable juror to quantify plaintiffs’ loss (permissible inference of allocation) | Damages are speculative; plaintiffs failed to prove damages with reasonable certainty and relied on lay opinion/unsupported expert claim | Court: Evidence created a genuine issue of material fact on harm; summary judgment on damages reversed |
| Role of expert evidence (ORCP 47(E)) | Plaintiffs filed an ORCP 47(E) declaration that an expert is available to opine on settlement practices | Defendants: Industry practice opinions cannot replace personal‑knowledge evidence of these settlors’ intent | Court: Expert industry practice evidence not necessary to defeat summary judgment here; causation can be proven by circumstantial/common‑sense inferences from the record |
Key Cases Cited
- Hinchman v. UC Market, LLC, 270 Or. App. 561 (discussing summary judgment standard and inferences)
- Mason v. BCK Corp., 292 Or. App. 580 (summary judgment and factual-inference discussion)
- Watson v. Meltzer, 247 Or. App. 558 (elements of legal malpractice and causation standard)
- Joshi v. Providence Health System, 198 Or. App. 535 (causation in malpractice context)
- Two Two v. Fujitec America, Inc., 355 Or. 319 (circumstantial evidence and causation)
- State v. Miller, 196 Or. App. 354 (permissible inferences at trial)
- West v. Allied Signal, Inc., 200 Or. App. 182 (ORCP 47(D) personal‑knowledge requirement satisfied by affidavit content)
- Deberry v. Summers, 255 Or. App. 152 (limits of ORCP 47(E) expert affidavits where personal knowledge is required)
- Davis v. County of Clackamas, 205 Or. App. 387 (opinion testimony inadmissible when declarant lacks personal knowledge)
- Merchants Paper Co. v. Newton, 292 Or. App. 497 (damages must be proved with reasonable certainty)