Lead Opinion
Defendants appeal from an order granting plaintiff s motion for a new trial after the jury returned a defense verdict in this personal injury case. ORCP 64 B. Plaintiff cross-appeals, assigning error to several of the trial court’s eviden-tiary rulings. We reverse on appeal; on cross-appeal, we affirm without discussion.
While plaintiff was snowboarding at a ski area that defendants operate on Mt. Hood, he snowboarded into a wooded area between two ski runs, Whoopee and Reservoir Hill. In doing so, he fell into Reservoir Creek, which runs through the wooded area, and as a result, he was seriously injured. On the Reservoir Hill side, the wooded area was entirely roped off at the time of the accident as a warning to skiers, but on the Whoopee side, there were places where there were no ropes or other warnings. Plaintiff testified that he entered the wooded area at a nonroped portion of the Whoopee side. In his complaint, he alleged that defendants were negligent in, among other things, “failing to install and maintain barriers and/or warnings sufficient to prevent skiers or snow boarders from accidentally skiing or snow boarding into the creek bed from the west or south side.” A major issue at trial was whether plaintiff actually entered the area from the Whoopee side, or, as defendants argued, based on the evidence of snowboard tracks, from the Reservoir Hill side. No witness saw plaintiff enter the area.
During the trial, defendants introduced evidence that plaintiff had smoked marijuana while he was on the way to the ski area the morning of the accident. The evidence included the results of a quantitative test of plaintiffs urine after the accident that showed 603 nanograms of cannabi-noids per milliliter. According to defendants’ expert, Dr. Griffin, that level of cannabinoids indicated that plaintiff was impaired as a result of the marijuana at the time of the accident. Plaintiff first learned of the existence of the quantitative test immediately before trial, during the argument on his motion in limine to exclude all evidence of his marijuana use. He had requested all of his medical records from the appropriate providers during discovery and had received a copy of the original screening test of his urine, which merely showed the presence of marijuana metabolites. After receiving that test, he specifically asked the hospital whether it had any record of a quantitative test. The person in charge of the hospital’s records responded that there was no such record and that it was not the hospital’s policy to perform additional tests. However, despite those denials, a laboratory connected with the hospital had in fact performed the quantitative test that defendants introduced. Defendants apparently learned of that test as a result of consulting with an expert who worked at the laboratory that performed it. After learning of the test, defendants subpoenaed the test result from that laboratory without providing notice to plaintiff, either before or after issuing the subpoena, and without having a medical release from him.
Because plaintiff had not received a copy of the test report, he first learned of its existence as well as Griffin’s opinion regarding impairment during the argument on the motion in limine. As a result, plaintiff withdrew his motion in limine, and the evidence was admitted at trial over his objections that defendants had not shown that it was valid scientific evidence. Defendants used the evidence at trial both to discredit plaintiff’s version of how the accident occurred, by suggesting that the effects of the marijuana impaired his ability to remember what happened, and to support their argument that the accident was the result of plaintiffs, rather than defendants’, negligence. After the parties rested, the jury returned its verdict, answering “No” to the following question: “Were defendants at fault in one or more of the ways alleged by the plaintiff, and, if so, was such fault a cause of damages to plaintiff?”
After trial, plaintiff moved for a new trial under ORCP 64 B(l) - (4). ORCP 64 provides that a trial court may set aside a
“B(l) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial.
“B(2) Misconduct of the jury or prevailing party.
“B(3) Accident or surprise which ordinary prudence could not have guarded against.
“B(4) Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial.”
The trial court granted plaintiffs motion for a new trial. In explaining its reasoning as to why it was granting the motion, the court prefaced its ruling by remarking:
“I’m going to talk a little about this because I want the Court of Appeals to understand why I’m granting this motion for new trial. I have not granted a motion for a new trial since I have been on the bench.”
The court then stated its reasoning:
“I’m going to start with the evidence. At this point now that the science is in, if the matter was before me prior to trial, unless it was further developed in a different manner than what’s been submitted in the affidavits and briefs, I would not allow Griffin to testify about the effect of marijuana, because I think it is contrary to established science.
“Okay. How do we—how did we get to this point that I did not reach that conclusion until well after the trial? I think there was a problem in the response by Legacy. I think there was a problem in the analysis, the hip shot analysis by Brady [plaintiffs expert witness]. But do we end this trial and then have another lawsuit against the hospital for releasing their records without authority to the defense and, as a second prong, failing to adequately respond to the plaintiffs requests for his own records, and try that out were they—was the hospital at fault in some way for doing that? Did that cause the plaintiff to fail to recover here and therefore the hospital had to recover? I can see the case going down that track. Do we have another lawsuit against Brady for falling below the standard of care of an expert witness in not immediately sizing this up and giving the Court the information that he’s later given? I don’t think that’s good. I think this—that’s one way we could go.
“Was the subpoena response under [ORCP 55[2] proper—not response, rather the procedure. I don’t believe so. I think that [ORCP 55 I] controls and that there should have been the notice and then we wouldn’t have gotten into this soup because the plaintiff would have known about this record prior to trial and evidence would have been developed. And on that point, this case just could not have been better prepared by—I think by either side.”
After digressing, the court summarized:
“So I think that the evidence on the use of marijuana would not have come into the case at all, that the reason that the plaintiff wasn’t able to present the science that reaches—leads me to that conclusion is because of conduct at the hospital, conduct of Brady and initially the irregularity in failing to follow the subpoena process.”
The above-quoted material demonstrates that the trial court based its grant of a new trial on three grounds. First, the court ruled as a matter of law that defendants’ evidence regarding plaintiffs use of marijuana before the accident occurred and Griffin’s opinion that plaintiff was impaired by that use at the time of the accident were inadmissible because Griffin’s opinion did not constitute valid scientific evidence. As will be explained later in this opinion in more detail, that conclusion constitutes legal error. Second, the trial court believed incorrectly that the purported procedural irregularities regarding Legacy’s response to plaintiffs subpoena
On appeal, defendants make six assignments of error: (1) They assert that the trial court erred in granting plaintiffs motion for a new trial because the jury did not reach the question of comparative negligence, the question on which they claim that plaintiffs newly discovered evidence would have been probative. (2) They argue that plaintiff waived any error that was the basis of his motion for a new trial by withdrawing his motion in limine. (3) They claim that the trial court’s ruling that defendants violated ORCP 55 I was error. (4) They assert that the evidence offered by plaintiff is not “newly discovered evidence” within the meaning of ORCP 64 B(4). (5) They contend that
“a trial court may only supercede a jury verdict and order a new trial if there is no evidence to support the verdict. * * * [T]he heart of plaintiffs argument was that his expert disagreed with defendants’ expert regarding correlation between total cannabinoid levels and impairment.”
(6) Finally, they contend that the trial court erred when it granted partial summary judgment to plaintiff on defendants’ affirmative defense that plaintiff had released them from liability because he purchased a ticket containing a release provision and then used the ticket to ski on defendants’ ski lifts. Because defendants’ third and fourth assignments of error are dispositive, we do not consider their other assignments of error.
We return to the reasons for which the trial court granted a new trial. The trial court did not express which provisions of ORCP 64 B, in its view, authorized the grant of a new trial.
“(2) If a patient or health care recipient is represented by an attorney, a true copy of a subpoena duces tecum for medical records of a patient or health care recipient must be served on the attorney for the patient or health care recipient not less than 14 days before the subpoena is served on a custodian or other keeper of medical records. Upon a showing of good cause, the court may shorten or lengthen the 14-day period.
* * * *
“(4) The requirements of this section apply only to subpoenas duces tecum for patient care and health care records kept by a licensed, registered or certified health practitioner as described in ORS 18.550, a health care service contractor as defined in ORS 750.005, a home health agency licensed under ORS chapter 443 or a hospice program licensed, certified or accredited under ORS chapter 443.”
ORCP 55 H(2) establishes similar requirements that apply to a subpoena duces tecum for hospital records when no hearing is scheduled and the subpoena directs delivery of the records to the attorney or party issuing the subpoena. However, ORCP 55 H(2) does not require advance notice to the plaintiff if the subpoena requires delivery of the record to a court or other authority that is conducting a deposition or a judicial or other formal hearing. It appears from the record that the laboratory informally told defendants of the result of the quantitative test before trial but did not provide them a copy. The only subpoena that defendants issued to the laboratory required its representative to
It is undisputed that defendants did not comply with ORCP 55 I when they issued the subpoena for the second test. If they had done so, plaintiff would have known of the test, despite the hospital’s previous denial of its existence. Defendants argue however, that the laboratory that conducted the test was not part of the hospital where plaintiff was treated but was a separate laboratory that specialized in drug testing. To the contrary, there is evidence that the laboratory was part of the same hospital complex and that the laboratory’s records were part of the records of that complex. Nevertheless, ORCP 55 I, the rule on which plaintiff relies, does not apply to the laboratory. That rule, by its express language, applies to health care practitioners, not to institutions that keep records separately from practitioners. Although health care practitioners treated plaintiff at the hospital, the hospital, not the practitioners, kept the records of the laboratory tests. Because ORCP 55 I did not apply to the subpoena in question, there was no basis for the trial court to conclude that defendants’ failure to give 14 days notice of the subpoena constituted either an irregulаrity in the proceedings or misconduct of the prevailing party.
Plaintiff also relies on federal regulations concerning the confidentiality of information used for the purposes of diagnosis and treatment of drug abuse. 42 USC § 290dd-2; 42 CFR §§ 2.11 - 2.13. However, those provisions apply only to health professionals whose primary function is to provide alcohol or drug abuse diagnosis, treatment, or referral. 42 CFR § 2.12(e)(1). In this case, plaintiff did not receive drug abuse treatment or referral. Despite the positive result on the initial screening test, plaintiff stated that he did not believe that he had a chemical dependency problem and refused any treatment. Because there is no indication in the record that the quantitative test constituted a diagnosis under the federal rules, the test result was not protected. We conclude that the federal requirements are not a basis for finding that defendants acted irregularly or engaged in misconduct.
With regard to the trial court’s grant of a new trial to avoid a malpractice claim against Brady, plaintiffs expert witness, the court held in State v. Arnold,
Before we analyze the trial court’s first reason for granting a new trial, we pause to observe that, based on the above analysis, the only ground on which the grant of a new trial in this case could be upheld is ORCP 64 B(4). ORCP 64B (1) and (2) are eliminated as possibilities because plaintiff does not claim any irregularity or misconduct on the part of defendants or the jury except for the discovery issue regarding ORCP 55 I, an issue that has already been disposed of in favor of defendants. ORCP 64 B(3) authorizes trial courts to grant a new trial because of accident or surprise that ordinary prudence could not have guarded against. The general rule is that a party may not use a surprise as a basis for seeking a new trial unless the party moved for a continuance so
In Arnold, the court specified,
“[W]e hold that evidence that may justify a court in granting a new trial [under ORCP 64B (4)] must meet the following requirements:
“(1) It must be such as will probably change the result if a new trial is granted;
“(2) It must be such as, with reasonable diligence, could not have been discovered before or during the trial;
“(3) It must be such that it cannot, with reasonable diligence, be used during trial;
“(4) It must be material to an issue;
“(5) It must not be merely cumulative;
“(6) It must not be merely impeaching or contradicting of former evidence.”
At trial, the jury heard conflicting expert opinions from Griffin and from Brady, plaintiffs expert, about whether impairment at the time of the accident could be determined from the available evidence; yet the jury returned a verdict for defendants. If the evidence of plaintiffs marijuana use in Griffin’s opinion regarding plaintiffs impairment was properly admitted at trial (contrary to the trial court’s post-trial ruling), then the question arises whether plaintiff is otherwise entitled to a new trial under ORCP 64 B(4). Consequently, the analysis regarding the trial court’s riding about the admissibility of plaintiffs use of marijuana and Griffin’s opinion as to plaintiffs impairment breaks into two sub-parts: (1) whether the trial court erred in admitting the evidence of plaintiffs marijuana use and Griffin’s opinion at trial of the effect on plaintiff from that use; and (2) assuming that that evidence was admissible, whether plaintiff has otherwise demonstrated an entitlement to the grant of a new trial under ORCP 64 B(4).
To resolve whether Griffin’s opinion testimony about plaintiffs impairment at the time of the accident due to marijuana ingestion was properly admitted requires an application of the Supreme Court’s case law regarding the admission of scientific evidence. In State v. O’Key,
The next inquiry is under OEC 702, which defines the permissible sphere of expert testimony as whether “scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue [.]” The O’Key court applied a multifactor test that includes whether the theory or technique could be tested; whether the theory or technique had been subjected to peer review and publication; whether there is a known or potential rate of error in the scientific process; whether there exist operational standards that regulate the technique or theory; whether the theory or technique is accepted in the relevant scientific community; whether the expert’s qualifications qualify him as an expert in the field; whether the use of the
According to the record, defendants’ expert, Griffin, is a medical doctor, board-certified in occupational medicine, and a review officer for OSHA compliance. He specializes in reviewing drug test results and has been specially trained in the effects of marijuana on the human body, including the decline of the effects of marijuana over time. He also supervises laboratory testing procedures for compliance with regulations and testing procedures. As we noted previously, Griffin testified that he reviews about 11,000 drug test results annually and regularly deals with the kinds of test results that occurred in this case. Out of the results that he had reviewed in the ten months preceding trial, about 990 were positive marijuana tests, but fewer than 20 of those involved test results above 500 nanograms/ml. Plaintiffs test level was 603 nanograms/ml at 8:45 p.m. on the day of the accident, which was, in Griffin’s opinion, “an exceptionally high level” in comparison with the test results that he typically evaluated. Plaintiff had consumed marijuana of an unknown quantity sometime the morning of the accident, and the accident occurred sometime around noon on that day. According to Griffin, the correlation between impairment and cannabinoid levels in urine samples has been the subject of published studies and those studies have been subject to peer review. Griffin submitted copies of those studies to the trial court before it ruled on plaintiffs motion for a new trial.
Plaintiff in his motion for a new trial, however, characterized Griffin’s testimony at trial as a bald assertion that a measure of total cannabinoids that he considered high must mean that plaintiff was impaired at the time of his injuries. According to plaintiff, the scientific literature is “unanimous” that such a correlation cannot be scientifically made. In his reply brief to the trial corut on the motion for new trial, plaintiff criticized the conclusions that Griffin drew from each of the studies on which Griffin relied and, on appeal, plaintiff incorporates by reference those criticisms.
Ultimately, the question is whether plaintiffs criticisms of Griffin’s opinion go to the admissibility of his testimony or to the weight that the trier of fact gives it. In that regard, the case of Jennings v. Baxter Healthcare Corp.,
The governing principle from Jennings is that scientific evidence will be admissible if the evidence is based on a methodology that has scientific validity, even if other scientists or experts might be unwilling to draw the same conclusion. In this case, Griffin relied on the test of plaintiffs urine after the accident, his clinical experience with such test results, and the findings of certain studies as
For purposes of discussion, we assume that members of the scientific community would disagree with Griffin that a qualified medical person could opine with reasonable medical probability that plaintiff was impaired at the time of the accident based on plaintiffs test result. For example, in his affidavit in support of plaintiffs motion for a new trial, plaintiffs expert explained that the active ingredient of marijuana associated with impairment of the human body is called “Delta 9-THC.” When ingested, that ingredient is metabolized by the body within four hours or less into several metabolites. Once metabolized, the primary metabolite left in the body is known as carboxy-THC and is not known to cause impairment. “[U]rine tests for carboxy-THC may reflect the presence of metabolites from both recent use (use that day) and several days prior, without distinguishing which metabolites are from which use.”
In response to the post-trial challenge made by Brady to Griffin’s trial testimony, Griffin filed a controverting affidavit in which he attached copies of scientific literature, including a study that suggested, based on tests of airplane pilots, that the “carry-over effects of low to moderate social doses [of marijuana] may produce significant impairment for as long as 24 h [sic] on complex human performance involving machines.” Griffin also averred in his post-trial affidavit that “a mine level of 603 nanograms per mil total cannabinoids means” that the active cannabinoid level in that same sample ranges from a “6-to-l to a 10-to-l ratio.” Griffin reiterated, “Based upon my experience, a urine level of603 nanograms per mil is very high.” Finally, he said in his affidavit:
“Based upon the studies cited above, the studies cited in my testimony, plaintiffs admission that he smoked marijuana thаt morning, my training and experience, it is my opinion that plaintiff was impaired at the time of his accident. My opinion is based upon a reasonable medical probability.”
We conclude on this record that Griffin’s opinion satisfies the admissibility requirements for scientific evidence because of the methodology used by him to arrive at his conclusion. His opinion is based on scientific facts derived from scientific studies and his own clinical experience as well as on empirical reasoning. As we understand his point, from the fact that, at 8:45 p.m. on the day of the accident, plaintiff’s urine contained 603 nanograms/ml, it can be inferred that his urine also contained active cannabinoids at that time based on a known ratio. In addition, Griffin’s opinion takes into account the fact that the effect of marijuana peaks one
Griffin’s methodology may be novel, as plaintiff asserts, and there may be other factors, including the fact that the test performed on plaintiff’s urine measured the residual amount of total cannabinoids ingested over a 72-hour period of time, that challenge the accuracy of Griffin’s opinion. In addition, as plaintiff’s expert’s affidavit demonstrates, there exist scientific opinions contrary to Griffin’s opinion. But differing opinions based on scientific methodology do not necessarily result, under the applicable law, in the exclusion of one of the opinions. Rather, generally, a conflict in scientific opinion presents a question of weight to be resolved by the trier of fact. Here, we hold that the arguments raised by plaintiff go to the weight to be given Griffin’s testimony and not its admissibility in light of the evidence of the high level of cannabinoids found in plaintiff’s urine some eight hours after the accident and Griffin’s experience in evaluating test levels. As the court said in O’Key, “[t]he scientific method is a validation technique consisting of the formulation of hypotheses, followed by observation or experimentation to test the hypotheses.”
We turn now to the second part of the analysis. Having concluded that evidence of plaintiffs marijuana use and Griffin’s opinion regarding the effect of its use on plaintiff are admissible, the issue is whether plaintiff otherwise is entitled to a new trial on this record. ORCP 64 B(4) requires that the evidence that entitles a movant to a new trial must be “newly discovered” evidence, evidence that will probably change the result if a new trial is granted and evidence that reasonably could not have been discovered or used at trial. Arnold,
“Plaintiff discovered the additional drug test on the first day of tr[ia]l. Over the course of trial and afterwards, Plaintiff discovered expert evidence that could show the additional test result was not probative of impairment and should have been excluded along with all other marijuana evidence. Plaintiff could not have reasonably presented the evidence at trial for two reasons. First, plaintiff did not discover much of the evidence (academic literature showing that the urine test could not be used to judge impairment). Second, the expert evidence Plaintiff discovered in the course of trial was discovered only after the time when it would have made a difference, which was in the hearing on Plaintiffs motion in limine.”
From plaintiffs motion, we learn that the purported “newly discovered” evidence was scientific literature. Plaintiff does not tell us in his motion whether the “newly discovered” literature was discovered during or after trial, only that it was discovered “after the time when it would have made a difference.” We turn then to plaintiffs expert and his affidavit in support of plaintiffs motion for a new
Even if we assume that plaintiff made an adequate identification in his motion of what he claims to be “newly discovered” evidence, there is yet another requirement that plaintiff has not met under ORCP 64 B(4). Based on the purported discovery of newly discovered scientific literature, Brady proposes to testify at a new trial that Griffin’s opinion that the marijuana consumed by plaintiff impaired him at the time of accident has no scientific validity. However, he gave the same opinion in his trial testimony; thus, the issue is whether there is anything new about Brady’s testimony offered in his post-trial affidavit. The dissent argues that Brady’s testimony is “newly discovered” because “Brady gave only negative testimony at trial—that he was unable to find relevant studies—while after the trial he was able to show positively that there was no scientific basis for using the quantitative test to indicate impairment.”
Additionally, the dissent lists five factual statements in Brady’s post-trial affidavit that it says “are in neither the pretrial affidavit nor Brady’s testimony at trial.” Id. at 474. They are, according to the dissent: (1) the fact that excretion of mаrijuana metabolites into the urine varies dramatically among individuals; (2) because of such variations, it is not possible to correlate a quantitative test of metabolites in urine with the amount of active metabolites in a person’s blood at a particular time; (3) there is no correlation of the active ingredient of marijuana with impairment that can be made in the way that blood alcohol content can be correlated with impairment; (4) the United States Center for Disease Control and Prevention advised in 1983 that a urine test alone cannot indicate impairment; and (5) “[g]iven those facts, together with the lack of any study that would enable an expert to determine impairment from a measure of total cannabinoids, Brady was highly doubtful that there was any scientific method that could lead to an informed conclusion about impairment based on a measure of total cannabinoids in a urine sample.” Id. at 474-75. The dissent concludes that “[t]he post-trial affidavit, thus, contained a substantial amount of new information, most significantly that it is not possible to use even a urine test for the total metabolites to determine impairment.” Id. at 475.
Our review of the record indicates that it does not support the dissent’s assertion that
“No, I’m not, [plaintiffs counsel]. You’ve asked me this question. I’ve done my best to look around, and I know of no literature, no study that I’m familiar with that correlates the total cannabinoids with the question of impairment.”
In addition, Brady was asked at trial if, in his opinion, an expert in his field could determine with reasonable medical probability from the test result “whether the patient was impaired at some particular time before?” Brady answered, “At a particular time prior to this sample being taken? No, no.” Finally, Brady was asked at trial, “Can you tell from [the test result] how much of that particular metabolite or breakdown product was in the test subject’s urine?” Brady responded, “No. All we know was the total material all together, and this gives us no information about any particular component of that whole big glop.”
In comparison to his trial testimony, Brady averred in his post-trial affidavit:
“I am unaware of, and have not been able to locate, any scientific study that enables an expert to use a measure of total cannabinoids to form an opinion about whether the subject was impaired at some particular prior point in time. Given the problems inherent in judging impairment even from a particular metabolite of active ingredient (as discussed above), and given the inability to distinguish the contribution of each substance included in a measure of total cannabinoids, I am highly doubtful that there is any scientific method that could lead to an informed conclusion about impairment based on a measure of total cannabinoids in a urine sample.”
Later, in his post-trial affidavit, Brady added that Griffin’s opinion “is not an opinion that can be reached through any accepted scientific method of analysis” and that “there is no scientifically accepted method for getting from total cannabinoids in [plaintiffs] urine later that day to active ingredients in his blood at the time of his injuries * * * because * * * different people metabolize the active ingredient at different rates and secrete the metabolite in different amounts and at different times.” He explained further in his affidavit,
“Moreover, the measure of carboxy-THC would fail to distinguish use that day that might have caused impairment from use days earlier that could not have caused impairment that day. The result reflected in the test result produced on the day of trial is fraught with the further problem that it is not even a measure of carboxy-THC. It is a measure of total cannabinoids that does not distinguish between active ingredient, carboxy-THC, [or] other metabolites or cannabinoids that do not cause impairment.”
Brady also concluded in that portion of his affidavit that “[n]o accepted scientific method allows such a conclusion “that an opinion as to impairment can be drawn from the measure of total cannabinoids in plaintiff’s urine sample.” Brady also referred in his affidavit in support of plaintiffs motion for a new trial to the literature in Griffin’s file. He opined that
“the literature in Dr. Griffin’s file (1996 and 1998 studies by Huestis, Cone and, in the 1996 study, Mitchell) does not support Dr. Griffin’s claim that a measure of total cannabi-noids in a person’s urine can be used tо determine whether a person was likely to be impaired at a particular point in time.”
In sum, the record demonstrates that, if a new trial is granted, Brady’s testimony will be a repeat of his trial testimony. Contrary to the dissent’s assertion that Brady did not
Finally, what does the record show, as ORCP 64 B(4) requires, about whether plaintiff—through Brady—exercised reasonable diligence to discover the “new” scientific evidence before the trial ended? Recall that the trial court found that Brady had “shot from the hip” during trial. Brady does not explain in his affidavit why he could not have done the necessary research before the trial ended,
The chronology of the trial further supports the court’s belief that Brady “shot from the hip.” Plaintiff became aware of defendants’ evidence no later than the morning of June 26, 2001, at the hearing on his motion in limine. The trial also began on that day. The trial ended on July 2, 2001, after a weekend recess. Plaintiff called Brady as his final rebuttal witness on June 29, and Brady testified before the jury that Griffin’s opinion had no scientific basis. Plaintiff never explains in light of those facts why the survey of scientific literature that produced the “newly discovered” evidence could not have been discovered before the end of trial through the exercise of reasonable diligence.
Additionally, the dissent’s assertion that Brady was unable to reach a conclusion that there was no scientific support for Griffin’s opinion until after the trial is also contradicted by Brady’s affidavit made before trial. In that affidavit, Brady makes the following generalizations:
“8. It is not possible to determine from the type of urine test that was done for [plaintiff] whether [plaintiff] was mentally or physically impaired at the time of his accident. As noted, the type of urine test that was done for [plaintiff] can only determine whether [plaintiff] ingested some amount of marijuana at some indeterminate time within the previous 72 hours.
“9. It also is impossible to determine from the other evidence regarding [plaintiffs] marijuana use whether [plaintiff] was mentally or physically impaired by marijuana at the time of his accident.No reliable scientific method, and no method commonly accepted in the scientific community, allows such a determination from the facts that are available without also knowing the precise details regarding the potency of the particular marijuana and the precise amount ingested.” 10
(Emphasis added.) The dissent posits that Brady was only aware of the screening test performed on plaintiffs urine at the time he made those averments, an assertion, which, of course, is correct. But Brady’s affidavit expressly states that he conducted a scientific investigation that extended beyond ascertaining the limits of screening tests. According to his affidavit, it is impossible to determine from the screening test and “other evidence” that plaintiff was impaired at the time of his accident. As a result of his investigation, Brady concludes that “[n]o reliable scientific method * * * commonly accepted in the scientific community * * * allows such a determination from the facts * * *.” Presumably, in light of his sweeping statements about the scope of his investigation, Brady was aware of or should have been aware of, the existence of the kind of quantitative test performed on plaintiffs urine.
Plaintiffs argument to the trial court in support of plaintiffs motion of a new trial further informs the issue of whether Brady acted with reasonable diligence during the trial. Counsel told the court:
“[W]e knew we had been surprised by the additional drug test result, but we didn’t know we had been harmed by it. We didn’t know that given some additional time to consider and analyze this result, to look at the literature and so on, we would have able to conclude, you know, this is really no more probative than anything else in this case, we can still get all this marijuana evidence excluded. We didn’t know that the surprise had hurt us * * *. As time went on, and we heard the other testimony unfold, and we looked at literature in the course of and after trial, our opinion on that issue changed.”
(Emphasis added.) Counsel’s statement tells us that plаintiff made the strategic decision to proceed with the trial on the first day of trial and then, at some later point in time, decided that plaintiff had been harmed by Griffin’s testimony. Taking plaintiff at his word, the earliest that plaintiff could have realized that he had been harmed would have been after Griffin testified on direct examination in the latter stages of trial. Nonetheless, plaintiff does not explain why Brady could not have begun his research on the first day of trial when he learned about Griffin’s testimony and finished any additional research before he testified on rebuttal days later or why plaintiff could not have asked for a continuance to complete his research.
Arnold is again particularly instructive regarding the requirement of “the exercise of reasonable diligence,” as applicable to this case.
In reaching its decision, the Supreme Court considered the state’s argument that the defendant’s “newly discovered” evidence did not meet the requirements of ORCP 64 B(4) and that, therefore, the trial court had no discretion to exercise and no authority to grant the defendant’s motion for a new trial. Arnold,
“This case is a dispute over how much evidence had to be known and had to be usable during trial to make the balance of the evidence not such as would justify the award of a new trial. Even if some additional evidence is discovered after trial, it does not justify the award of a new trial if the evidence that was known during trial could have been used during trial for substantially the same purpose as the additional evidence that is not discovered until after trial.”
Id. (emphasis in original).
The circumstances in Arnold parallel the circumstances in this case. Plaintiffs counsel knew of the issue days before the case was submitted to the jury, and plaintiffs expert witness, Brady, like any expert in his field, must have known how to conduct a survey of pertinent scientific literature. Also, as in Arnold, plaintiff never asked for a delay in the trial to procure additional evidence before the case went to the jury. It is evident from his testimony and his pretrial affidavit that Brady believed before and during the trial that there existed no test that correlated the amount of the active ingredients of marijuana in a person’s body with impairment at a particular time. Even if there was some scientific literature discovered post-trial, that literature could not justify the grant of a new trial under ORCP 64 B(4) because Brady used the literature in Griffin’s file and his own knowledge of the subject matter for substantially the same purpose as the “newly discovered” literature would be used in a new trial. In light of the public’s interest in the finality of the judicial process, the trial court was left with no discretion to exercise in this matter under ORCP 64 B(4). We conclude that plaintiffs attempt to satisfy the legal requirements of ORCP 64 B(4) is legally inadequate on the face of the record for each one of the above reasons.
According to the dissent, “the majority’s errors fall into three basic categories. First is its failure to follow the applicable standard of review.”
The dissent also argues that we must defer to the trial court’s exercise of discretion in this case, based on the implicit findings of fact that the dissent attributes to the trial court. However, the dissent misconstrues the nature of the discretion granted to
“Having held that ORCP 64 B(4) applies to evidence discovered during the trial, we proceed to consider the state’s argument that defendant’s ‘newly discovered evidence’ would not have justified the award of a new trial under ORCP 64 B(4) and, therefore, that the trial court had no discretion to exercise, and, thus no authority to grant defendant’s motion.”
“[T]he post-trial discovery of the latter information does not satisfy the requirement that the evidence must be such as, with reasonable diligence, could not have been discovered and produced at trial.”
Id. at 122. In other words, the determination of whether the requirements of ORCP 64 B(4) are met is not the kind of decision that involves more than one legally permissible choice to be made by the trial court. See State v. Rogers,
As we recently said in State v. Woodman,
The dissent also argues that the issue of whether Griffin’s testimony was admissible scientific evidence and whether the court erred in finding that it would have rejected that testimony at trial if Brady had been able to present the information that he discovered after trial are issues that defendants do not raise on appeal. The dissent’s argument fails to appreciate the express argument made under defendants’ fourth assignment of error and its necessary implications. In that assignment, defendants first assert that “[t]he trial court erred in granting the plaintiffs motion for a new trial because the supplemental opinion of plaintiffs expert is not newly discovered evidence.” That argument clearly raises the issue whether the trial court ruled correctly under ORCP 64 B(4). Next, in its brief on appeal, defendants expressly point to the portion of the transcript previously quoted in this opinion where the trial court states:
“At this point now that the science is in, if the matter was before me prior to trial, unless it was farther developed in a different manner than what’s been submitted in the affidavits and briefs, I would not allow Griffin to testify about the effect of marijuana, because I think it is contrary to established science.”
(Emphasis added.) We cannot decide whether plaintiff is entitled to a new trial under ORCP 64 B(4) without first deciding whether the trial court’s ruling regarding the scientific validity of Griffin’s opinion was correct.
Moreover, parties to an appeal cannot prevent us from noticing and invoking the requirements of a statute merely because they have failed to assert its application. Miller v. Water Wonderland Improvement Dist.,
Finally, the dissent argues that we err because, according to the dissent, we infer improperly that Brady should have been able to find the purported new information during trial and because we impermissibly rely on the statements of plaintiffs counsel to draw that inference.
In summary, the trial court granted a new trial premised on three legal rulings: (1) Griffin’s opinion does not constitute valid scientific evidence; (2) ORCP 55 I was violated; and (3) if a new trial is not held, plaintiff may sue Brady for malpractice. A trial court does not have discretion to commit errors of law. It must exercise its discretion within a range of legally permissible choices. None of the above grounds relied on by trial court involves the exercise of discretion. From the time that plaintiff filed the pretrial motion in limine until the arguments were made in support of his motion for a new trial, plaintiff never wavered in his position that the evidence of his marijuana usage and Griffin’s testimony was inadmissible. Indeed, he offered Brady’s testimony at trial on that very issue. In contrast, the concept of “newly discovered” evidence contemplates new evidence discovered post-trial that reasonably could not have been discovered before or during trial with the exercise of reasonable diligence and that is likely to change the result of the trial. It is plaintiff’s burden to demonstrate that the requirements of the rule have been satisfied. In the absence of satisfying the requirements of the rule, he is not entitled to a new trial as a matter of law. That is exactly what occurred here, and the record is clear that the trial court’s reasoning that led it to grant a new trial was predicated on its rulings of law, rulings that are erroneous. Consequently, reversal of the grant of a new trial is required, and the judgment for defendants must be reinstated.
Reversed on appeal; affirmed on cross-appeal.
Notes
Defendants raised issues of comparative fault in their pleadings. In its verdict, the jury found that defendants were not at fault in any way that was a cause of damage to plaintiff and, thus, did not reach the issue of comparative fault.
2 Citations to ORCP 55 I throughout this opinion are to former ORCP 55 I (2001). The Council on Court Procedure deleted that statute on December 14,2002. Because the trial in this case occurred in 2001, ORCP 551 was applicable below and is also relevant on appeal.
The court told plaintiffs counsel that it did not feel that counsel had withdrawn the legal challenge to the admissibility of defendant’s scientific evidence when plaintiff withdrew the motion in limine. The court said that, at that point in time, counsel could have argued until he was “blue in the face,” but that plaintiff did not have the information he presented post-trial “because of an irregularity in the process and surprise.” It is inferable from those comments that the trial court was relying on the provisions of ORCP 64 (B)(1) and (3).
As we discuss below, defendants’ failure to give notice of the subpoena is still relevant to whether plaintiff exercised reasonable diligence for the purpose of his motion for a new trial on the ground of newly discovered evidence.
In granting a new trial, the trial court made no ruling under OEC 403.
For instance, with regard to an airplane pilot study relied on by Griffin, plaintiff argues that the study sample was too small, that it did not show that all of the pilots in the study suffered from impairment, that the tasks that the pilots were assigned did not correspond to activities such as snowboarding, that the impairments were minor in nature, and that the dose ingested by the pilots was known while the amount of marijuana ingested by plaintiff and its potency was unknown.
In his affidavit in support of plaintiffs motion in limine, Brady averred, “As noted, the type of urine test that was done for [plaintiff]
At trial, plaintiff cross-examined Griffin on substantially the same issues raised by plaintiffs expert in his affidavit in support of plaintiffs motion for a new trial.
In his affidavit in support of plaintiffs motion for a new trial, Brady further averred:
“During and after [plaintiffs] trial, I had time to further review the drug test result that was disclosed by Defense counsel on the day of trial. I also had time to review scientific literature and to consult with other experts regarding whether the measurement of total cannabinoids reflected in the newly discovered test result could be used to determine if [plaintiff] was impaired at the time of his injuries. The literature I reviewed included the file of Defendant’s expert, Dr. Kirby Griffin. Based on my additional review, consultation and analysis, I have concluded, for reasons detailed below, that there is no accepted scientific basis for using the test result disclosed the day of trial to determine whether Mr. Mitchell was likely to have been impaired at the time he was injured. As I said in my affidavit in support of Plaintiffs motion in limine (attached as Exhibit 1), the sum of other information available in this case also falls short of what is needed, under any sсientifically accepted method of analysis!,] to form an opinion about whether [plaintiff] was impaired by marijuana use at the time he was injured.”
Additionally, Brady averred in his pretrial affidavit:
“6. The active ingredient in marijuana, Delta 9 THC, typically dissipates from the blood stream within four hours of ingestion or less, after which the subject is essentially unimpaired by it. The effects of Delta 9-THC are strongest within the first half-hour of ingestion and then taper off rapidly after that. Depending on the potency of the marijuana and the amount ingested, the subject may be unimpaired by it in as little as one to two hours.
“7. The urinalysis test that was used for [plaintiff’s] toxicology report, which is called a ‘presumptive screening* or ‘qualitative’ test can only determine whether the subject ingested marijuana at some indeterminate time within the previous 72 hours. The test cannot determine the amount of marijuana ingested or whether the subject was impaired by marijuana at the time of the test or at any particular time before or after the test.”
Nor would it had been permissible for the trial court to have weighed the evidence by finding Brady’s post-trial affidavit more persuasive than Griffin’s post-trial affidavit. For instance, the issue of the admissibility of Griffin’s testimony is solely a question of law.
Because the trial court focused on the admissibility of the evidence about marijuana in deciding whether to grant a new trial, the issue raised by the dissent is not an issue about preservation in the trial court but whether we should address an element of ORCP 64 B(4) when defendants did not directly address it on appeal. As we have said previously, no correct legal analysis can be made in this case without determining whether Griffin’s testimony was admissible at trial.
Dissenting Opinion
dissenting.
The majority reverses the trial court’s grant of a new trial in this case on an issue that defendants did not raise on appeal, and it decides that issue incorrectly. None of the issues that defendants do raise justifies reversal. This court should affirm the trial court’s order.
I begin with the facts, both those involved in plaintiffs claim and those that occurred during the trial and the post-trial proceedings. Plaintiff was injured while snowboarding at a ski area that defendants operate on Mt. Hood. He snowboarded into a wooded area between two ski runs, Whoopee and Reservoir Hill, he fell into Reservoir Creek, which runs through the wooded area, and was seriously injured. Plaintiff testified that he entered the wooded area at a nonprotected portion of the Whoopee side rather than at the fully protected Reservoir Hill side. In his complaint, he alleges that defendants were negligent in, among other things, “failing to install and maintain barriers and/or warnings sufficient to prevent skiers or snow boarders from accidentally skiing or snow boarding into the creek bed from the west or south side.” At trial defendants denied that plaintiff entered the area from the Whoopee side and argued, based in part on the evidence of snowboard tracks, that he actually entered from the Reservoir Hill side. No witness saw plaintiff enter the area. The jury answered “No” to the following question: “Were defendants at fault in one or more ways alleged by the plaintiff, and, if so, was such fault a cause of damages to plaintiff?”
During the trial, defendants introduced evidence that plaintiff had smoked marijuana while he was on the way to the ski area the morning of the accident. That evidence included the results of a quantitative test of plaintiffs mine after the accident that showed 603 nanograms of cannabi-noids per cubic centimeter. According to defendants’ expert, Dr. Griffin, that level of cannabinoids indicated that plaintiff was impaired as a result of the marijuana. During discovery, plaintiff had requested all of his medical records from the appropriate providers. He had received a copy of the original screening test of his urine, which merely showed the presence of marijuana metabolites, not their amounts. He specifically asked the hospital whether it had any record of a quantitative test. The person in charge of the hospital’s records responded that there was no such record and that it was not the hospital’s policy to perform additional tests. Despite those denials, a laboratory connected with the hospital had in fact performed the quantitative test that defendants introduced. Defendants apparently learned of that test as a result of consulting an expert who worked at the laboratory that performed it. They then subpoenaed the test result from that laboratory without providing notice to plaintiff, either before or after issuing the subpoena, and without having a medical release from him.
Plaintiff filed a motion in limine to exclude evidence of his use of marijuana. He relied on the opinion of his expert, Dr. Brady, that a positive result on a screening teest could not show that plaintiff was impaired at the time of his injury. During the argument on the motion in limine on the first day of the trial, defendants revealed the existence of the quantitative test. That revelation took defendants and Brady by surprise. Because he had not conducted research on the issue, Brady was not able at that time to state that an expert could not conclude that plaintiff was impaired at the time of the accident. Plaintiff therefore withdrew the motion in limine, and the evidence was admitted at trial over plaintiffs objections that defendants
During and after the trial, plaintiff investigated the circumstances under which defendants received the quantitative test report, and Brady conducted research into its scientific significance. Brady was ultimately able to determine that there was no scientific basis for concluding that the total amount of cannabinoids in plaintiff’s urine, which reflected the total material from the marijuana smoke rather than only the psychoactive component and its metabolites, could indicate whether plaintiff was impaired at the time of his injury. Plaintiff moved for a new trial on the ground that the trial court should not have admitted evidence concerning his marijuana use because there was no scientific basis for determining from the evidence that plaintiff was impaired.
ORCP 64 provides that a trial court may set aside a verdict and grant a new trial on grounds that include:
“B(l) Irregularity in the proceedings of the court, jury or adverse party, or any order of the court, or abuse of discretion, by which such party was prevented from having fair trial.
“B(2) Misconduct of the jury or prevailing party.
“B(3) Accident or surprise which ordinary prudence could not have guarded against.
“B(4) Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial.”
Plaintiff moved for a new trial on each of those grounds. The trial court granted the motion without indicating the ground on which it relied. In doing so, it found that the evidence that plaintiff presented to support the motion showed that Griffin’s testimony about the effect of marijuana was contrary to established science. The court also found that the reason that plaintiff did not present that evidence before trial was in part the conduct of the hospital, in part the conduct of Brady, and in part the conduct of defendants in not following the proper subpoena procedure for obtaining the report. It concluded that the evidence could have had a significant effect on the trial, in рart because it could have led the jury to find that plaintiffs marijuana use, rather than anything that defendants did, was the cause of plaintiffs injury and in part because inappropriate references to marijuana would unfairly impair plaintiffs right to a fair determination of the case.
Whether to grant a motion for a new trial is a discretionary decision for the trial court. See Ertsgaard v. Beard,
Defendants raise several issues that, if correct, would require reversing the trial court’s order. Before discussing my disagreements with the majority’s analysis, I first consider those issues. Defendants first assert that the evidence of plaintiffs marijuana use was
The problem with defendants’ argument is that, as their own argument to the jury shows, the evidence of plaintiffs marijuana use was directly relevant to the fundamental question of whether defendants’ negligence was a cause of plaintiffs injuries. If the jury found that, as plaintiff testified, he entered the wooded area from the Whoopee side at a point where there were no ropes or other warnings, it might well have found defendants negligent in a way that harmed plaintiff. However, if it found that he entered from the Reservoir Hill side, where there were ropes the entire way, such a finding was impossible under plaintiffs specification of negligence. The only relevant evidеnce in plaintiffs favor on that crucial point came from his own testimony. Thus, it was important for defendants to give the jury a reason to discount that testimony as unreliable.
At the very close of his argument to the jury, defendants’ attorney told the jury:
“I’m sure that the plaintiff truly believes what he says. We’re not saying he’s a liar or he’s not, you know, some bad person. I’m sure that’s what he believes. But what we don’t—all we can do is look at this scene. There are no physical facts that confirm what he says. We know—it’s up to you to evaluate the evidence from the expert—but we know that he smoked marijuana that morning, and we know there’s evidence that he was impaired. We don’t—you know, maybe that affected his perception, his time, distance, vision and so forth. Maybe he doesn’t, because of that, because of whatever reason, doesn’t have a good recollection of what happened.”
(Emphasis added.) Defendants, thus, asked the jury to infer that plaintiffs use of marijuana could have affected his ability to know what he was doing and to remember what he did, and, thus, could have led him to believe something that was not true. The jury could conclude from the quantitative test, with the significance that Griffin gave it in his testimony, that plaintiffs ability accurately to remember what happened was impaired. Thus, the evidence of the quantitative test, together with the meaning that Griffin gave it, could have affected the verdict in a way that the instructions and evidence at issue in the cases on which defendants rely did not. Defendants’ first assignment of error is not a basis for reversing the grant of a new trial.
Defendants next assert that plaintiff failed to preserve any error because he withdrew his motion in limine rather than asking for a continuance when defendants informed the court of the second urine test. Defendants argue that plaintiff thereby waived any claim of surprise. They also point out that plaintiff failed to object to the admission of the test result on the grounds that he raised in his motion for a new trial. The difficulty with defendants’ argument is that plaintiff did not need to show that the trial court erred during the trial in order to seek a new trial on the grounds that he raised. There was thus no claimed error for him to preserve.
What a party must do during trial in order to move for a new trial afterwards varies depending on the ground on which the party relies. None of the grounds on which plaintiff relies has an implicit or explicit preservation requirement, and it would be inconsistent
It is true that a party that is aware dining trial of one of the grounds for a new trial that is listed in ORCP 64 B(l) to (4) may not speculate on the result by failing to bring the issue to the court’s attention, intending to use the issue to seek a new trial if the outcome is unfavorable. See, e.g., Turman v. Central Billing Bureau,
ORCP 64 B(3), which permits the trial court to grant a new trial because of accident or surprise that ordinary prudence could not have guarded against, does have a kind of preservation requirement when the issue is surprise. The general rule is that a party that is surprised at trial may not use that surprise as a basis for seeking a new trial unless the party moved for a continuance to provide an opportunity to respond to the surprising event. See State v. Gardner,
Defendants also argue that the trial court erred in ruling that their action in issuing a subpoena for the result of the second, quantitative test without complying with the requirements of ORCP 55 I (2001)
The decisive question, then, is whether the trial court correctly granted a new trial on the ground of newly discovered evidence. Defendants argue that the supplemental opinion that Brady gave concerning the significance of the quantitative test was not newly discovered evidence under ORCP 64 B(4). Defendants point out that Brady testified at trial that he had been unable to find any studies that correlate total cannabinoids with impairment. They also argue that plaintiff did not act with reasonable diligence in seeking the quantitative test before trial. The nature of the majority’s analysis requires me to discuss those points, and the facts on which they are based, at some length. In short, the problem with defendants’ first argument is that Brady gave only negative testimony at trial—that he was unable to find relevant studies—while after the
Brady described the relevant events in his affidavit. He first learned of the quantitative test when defendants referred to it during the argument on plaintiffs motion in limine. When they represented to the court that the quantitative test indicated a level of 603 nanograms in plaintiffs urine, Brady believed that that amount referred to the total metabolites, not to all cannabinoids including inert substances, because most laboratories seek to measure only the metabolites of the active ingredient of marijuana when they perform quantitative tests. Based on that belief, he initially concluded, without time to conduct significant research, that reasonable experts could disagree on whether the test result showed probable impairment.
Brady obtained a copy of the test result during the lunch hour recess but was unable, before the hearing on the motion in limine resumed, to determine the relationship between the total cannabinoid level that the test showed and the levels of active ingredients. As а result, he told plaintiffs attorneys that he could not testify that there was insufficient information from which an expert could conclude that plaintiff was impaired.
The science on which Brady relied involves the nature of marijuana and the way that the body processes its active ingredient. In summary, his review of the literature led him to conclude that there is no scientifically accepted method forjudging impairment even from a measurement of metabolites of the active ingredient. There are significant individual differences in the speed and other characteristics of the metabolism of the active ingredient and in the amount that is available in any particular sample of marijuana. Brady was unable to find any scientific study that would allow someone to use a measure of total cannabinoids, rather than metabolites of the active ingredient, to determine impairment. For the reasons that I describe later in this opinion, the trial court could conclude, based on Brady’s post-trial affidavit, the studies that accompanied it, and on Griffin’s response, that there was no scientific basis for the opinion that Griffin gave.
The majority appears to hold that Brady’s post-trial opinion was not newly discovered evidence, although it is not entirely clear on this point. At times it appears to confuse the question of the admissibility of Griffin’s testimony at trial with the question of whether Brady discovered new evidence after trial. That confusion is reflected in the majority’s decision to discuss the admissibility of Griffin’s testimony based primarily on the evidence at trial, when the trial court ultimately rejected it because of the newly discovered evidence that plaintiff presented after trial. In order to avoid that confusion, I will first explain why the post-trial evidence was newly discovered. After doing so, I will then discuss the trial court’s decision to grant a new trial based on that evidence.
The majority denies that Brady rеached an opinion after trial on the basis of full research that was substantially different from what he was able to say before the trial
Brady gave three opinions during the course of the trial and post-trial proceedings. His first opinion, which is contained in his pretrial affidavit, applied only to the screening test, not to the quantitative test; he did not know about the quantitative test when he executed that affidavit. Because a screening test is fundamentally different from a quantitative test, Brady’s first opinion is largely irrelevant to the validity and admissibility of the quantitative test. His second opinion, which is contained in his trial testimony, described the problems with using the quantitative test that he had been able to identify at that time. His final opinion, which is contained in his post-trial affidavit, relied on evidence that he did not use (and, thus, that the court could find he had not yet discovered) at trial and, for the first time, explained why Griffin’s opinion about the quantitative test was without scientific basis.
Before the trial, both plaintiff and Brady reasonably relied on the hospital’s assurance that the only test that it had conducted was the original screening test. A screening test simply determines that metabolites of the active ingredient in marijuana are present in the urine; it does not attempt to determine the amount of those metabolites, of the active ingredient, or of other cannabinoids. Brady’s pretrial statements applied only to that screening test.
The majority quotes those and other paragraphs of the pretrial affidavit without recognizing that they refer only to the screening test and other information that was available before trial; they have nothing to do with Brady’s later conclusions concerning the quantitative test. Indeed, Brady’s statements in his pretrial affidavit were contingent on his belief that no quantitative test existed and that it was too late to perform one. His pretrial affidavit, thus, showed only that the screening test and other available information were insufficient to determine plaintiffs impairment; it said nothing about the usefulness of a quantitative test for that purpose. For those reasons, the pretrial affidavit does not detract from the trial court’s finding that Brady’s post-trial opinion concerning
An example of the majority’s misunderstanding of the pretrial affidavit is its discussion of paragraph 9. In that paragraph Brady first stated that it was not possible to determine from the other evidence (that is, from the evidence other than the screening test) whether plaintiff was mentally or physically impaired at the time of the accident. He then added, in a sentence that the majority italicizes:
“No reliable scientific method, and no method commonly accepted in the scientific community, allows such a determination from the facts that are available without also knowing the precise details regarding the potency of the particular marijuana and the precise amount ingested.”
Quoted in
When Brady learned of the existence of the quantitative test, he in effect told plaintiffs lawyers that the information in his pretrial affidavit did not apply to that test and that he would have to do additional research. He conducted that additional research during and after the trial. His first discussion of what he found came three days later when he testified as the last witness in the trial. That testimony was based on what he had discovered to that point; in effect, it was a progress report.
The focus of Brady’s testimony was explaining the difficulty of using a measurement of total cannabinoids to determine impairment. He explained that total cannabinoids include all of the material in the marijuana plant, not simply the unknown small portion that is the active ingredient, and pointed out that the research on which Griffin relied in his testimony did not measure total cannabinoids. When plaintiffs lawyer asked Brady if he was aware of any studies that connected the measurement of total cannabinoids to a person’s level of impairment at a particular time, he stated that he had done his best to look around and knew of no study that correlated total cannabinoids with the question of impairment. He did not testify that studies showed that it was impossible to make that correlation. He also stated that an expert could not determine from the test result whether a person was impaired at a specific time before the measurement was taken.
Brady’s final conclusions came in his post-trial affidavit, which plaintiff filed in support of his motion for a new trial. That affidavit contained important statements that Brady had not previously made and that were essential to the trial court’s decision to grant the motion. The trial court could infer that, if Brady had known during trial what he said in his affidavit, he would have included those things in his testimony; it could therefore infer that Brady did not reach the crucial conclusions until after the trial was over. In the affidavit Brady, explained that, “[d]uring and after Mr. Mitchell’s trial,” he reviewed the quantitative test result, reviewed scientific literature, and consulted with other experts about whether it was possible to use a measurement of total can-nabinoids to determine whether plaintiff was impaired at the time of his injury. Brady’s crucial conclusion was that “there is no accepted scientific basis for using the test result * * * to determine whether Mr. Mitchell was likely to have been impaired at the time he was injured.”
The post-trial affidavit includes several factual statements that are in neither the pretrial affidavit nor Brady’s testimony at trial. The trial corut could find that they are, at least in part, the result of his post-trial research: (1) The timing and level of the excretion of marijuana metabolites into the urine varies dramatically among individuals. (2) Because of those variations it is not possible to correlate even a quantitative test of metabolites in the urine with the amount of active ingredient in a person’s blood at some previous time. (3) Even if it were possible to correlate a urine test for the metabolite with the amount of active ingredient in the blood at a particular time, it would still be necessary to correlate the amount of the active ingredient with impairment in the way that the amount of alcohol in the blood can be correlated with impairment. (4) The United States Centers for Disease Control and Prevention, referring to tests for metabolites, has advised that a urine test alone cannot indicate performance impairment or assess the degree of risk associated with a person continuing to perform tasks. (5) Given those facts, together with the lack of any study that would enable an expert to determine impairment from a measure of total cannabinoids, Brady was highly doubtful that there was any scientific method that could lead to an informed conclusion about impairment based on a measure of total cannabinoids in a urine sample.
Brady’s post-trial statements thus went significantly beyond his skepticism in his testimony at trial about using a test of total cannabinoids—the great majority of which are inert—to determine impairment. As a result of his post-trial research, his skepticism about Griffin’s testimony had changed to certainty that it was without scientific basis.
In his post-trial affidavit Brady also relied on the information that he had originally described in his pretrial affidavit and in his trial testimony. He concluded, based on all of the information that he described, that the quantitative test of total cannabinoids failed to provide a scientifically valid basis for forming an opinion about whether plaintiff was impaired at the time of his injury. He also described his reasons for believing that Griffin’s analysis was totally lacking in any
The post-trial affidavit, thus, contained a substantial amount of new information, most significantly that it is not possible to use even a urine test for total metabolites to determine impairment. That new information was crucial to Brady’s opinion that Griffin’s testimony was without scientific foundation. Brady’s opinion on that point, in turn, was the basis for the trial court’s conclusion that it should have excluded Griffin’s testimony, along with all other evidence of plaintiffs marijuana use, from the trial. And that conclusion, finally, was the fundamental reason that the trial court granted the motion for a new trial. The trial court could properly have found that Brady did not discover, and in the exercise of reasonable diligence could not have discovered, that new information before the end of the trial.
The majority discusses much of the evidence that I have described but places a different significance on this evidence. The majority’s errors fall into three basic categories. First is its failure to follow the applicable standard of review. Because the trial court granted plaintiffs motion, our standard of review requires us to resolve all of those factual issues in favor of plaintiff. The majority, however, finds the facts itself without regard to whether the trial court could have found different facts. It doеs not recognize that, in order to hold that the trial court erred in determining that Brady’s post-trial opinion constituted newly discovered evidence, we must be able to conclude that there was no evidentiary support for that determination.
Second, the majority appears to argue that, because the scientific research on which Brady ultimately relied existed in published form before the trial, his failure to find it before the end of the trial is in itself proof that he did not exercise reasonable diligence in seeking it. Nothing in the record supports the majority’s assumption that the mere fact that a study is published means that an expert should be able to find it instantaneously, immediately distinguish it from all other possibly relevant studies, examine its methodology and results, and thereupon describe its precise significance to the issue at hand.*
The trial court concluded that, if it had had the benefit of Brady’s opinion before or during trial, it would not have allowed Griffin to testify concerning plaintiffs impairment and that it would not have permitted any evidence of plaintiffs use of marijuana. It then granted the motion.
In reviewing a decision to grant a new trial under ORCP 64 B(4), we apply the well-established criteria for determining whether to grant a trial based on newly discovered evidence in light of the facts that the trial court could have found. With one minor exception, those criteria have not changed for over a century and are the same under the rule as they were under the former statute. The Supreme Court restated them most recently in State v. Arnold,
“(1) It must be such as will probably change the result if a new trial is granted;
“(2) It must be such as, with reasonable diligence could not have been discovered before or during the trial;
“(3) It must be such that it cannot, with reasonable diligence, be used during trial;
“(4) It must be material to an issue;
“(5) It must not be merely cumulative;
“(6) It must not be merely impeaching or contradicting of former evidence.”
(Footnote omitted.) See also Oberg v. Honda Motor Co.,
Although motions for a new trial on the ground of newly discovered evidence are generally disfavored, Davis,
Brady’s opinion that it is not scientifically possible to determine from the quantitative test whether plaintiff was impaired, and the reasoning on which he relied, meet the final three criteria for newly discovered evidence. Whether plaintiffs marijuana use impaired his ability to perceive and remember what happened was material to the issue of whether defendants were negligent in a way that caused him damage. The evidence was not cumulative because there was no other evidence in the record that effectively challenged Griffin’s opinion. The testimony that Brady gave during trial was both weaker and qualitatively different; at most it showed a disagreement between experts, not that Griffin’s opinion was without scientific validity. Finally, the evidence did not merely impeach or contradict former evidence. Bather, it showed that the former evidence was not admissible and thus should not have been presented at trial.
The second and third criteria relate to plaintiff’s diligence in obtaining the evidence. The facts on those points are uncontested. As a result of the hospital’s failure to disclose the quantitative test to plaintiff when he
These facts distinguish this case from somewhat similar cases involving newly discovered expert testimony in which the Supreme Court affirmed the trial court’s decision not to grant a new trial.
Arnold was a prosecution for child sexual abuse.
The trial court denied the motion, emphasizing that the defendant discovered the evidence of the witness’s false testimony in the middle of the trial and could have presented it to the jury. Because the defendant learned about the evidence during trial, it should have notified the court and sought a continuance in order to secure the evidence for use at the trial. The court apparently recognized that the defendant discovered the other evidence concerning the witness’s background after trial, but it concluded that that evidence would not have probably changed
On review, the Supreme Court reversed our decision and affirmed the trial court’s judgment. The primary issue that it considered was whether evidence discovered during trial can be newly discovered evidence for the purpose of a motion for a new trial. The foundation of the Supreme Court’s opinion was its conclusion that the defendant had in fact discovered the evidence during trial. The Supreme Court held that evidence discovered during trial cannot be newly discovered evidence. It emphasized that a party seeking a new trial must show that the party could not, acting with reasonable diligence, have discovered and produced the evidence at trial. Arnold,
Marshall and this case are similar in that in each an expert discovered additional evidence after the trial. However, in Marshall the expert had a full opportunity to discover the evidence before trial and had every reason to do so. The expert did not conduct a truly diligent search until after the verdict against the plaintiff In contrast, in this case, despite plaintiffs diligence in conducting discovery, Brady did not know that the quantitative report existed until the very beginning of the trial. As soon as Brady learned about the report, he began doing the necessary research to evaluate its meaning in light of existing scientific principles and studies, but he was not able to complete that research and reach his conclusions until after the trial ended. He acted with diligence that the expert in Marshall did not use.
Arnold and this case are similar in that in each the parties began investigating the issues that they raised after trial while the trial was in process. However, in this case Brady did not discover the crucial scientific information until after the trial. After trial, not during it, Brady learned that there is no basis for using a measurement of the metabolite to determine impairment; after trial, not during it, he could say that there was no scientific basis for Griffin’s conclusions concerning the quantitative test. Unlike Arnold, in this case Brady did not discover, and could not have discovered, the crucial evidence dining trial. When the trial ended, plaintiff still did not know what Brady would discover or when he would discover it. Plaintiff specifically did not know that Brady would conclude that the quantitative test was as inadmissible as was the screening test.
That is what his plaintiff’s attorney told the court:
“[W]e knew we had been surprised by the additional drug result, but we didn’t know we had been harmed by it. We didn’t know that given some additional time to consider and analyze this result, to look at the literature and so on, we would have [been] able to conclude, you know, this is really no more probative than anything else in this case, we can still get this marijuana evidence excluded. We didn’t know that the surprise had hurt us. * * * As time went on, and we heard testimony unfold, and we looked at literature in the course of and after trial, our opinion on that issue changed.”
(Emphasis added.) The majority quotes that statement but does not understand it.
The remaining question is whether Brady’s opinion meets the first criterion for newly discovered evidence, that it would probably change the result of the case. The foundation of the majority’s opinion appears to be its conclusion that the trial court erred in concluding that Brady’s post-trial opinion rendered Griffin’s trial testimony inadmissible under the rules concerning scientific evidence. Not only is that conclusion wrong, but it resolves an issue that defendants did not raise, that the parties have had no opportunity to brief to us, and that is therefore not before us on appeal. A party that does not raise an issue in its opening brief has waived that issue. See State v. Jones,
“A party may make many arguments in the trial court, in order to ensure that it has raised all issues, but may decide on appeal to focus on those that it thinks are most likely to be successful. Except for errors of law apparent on the face of the record, ORAP 5.45(2), it is not our role as an appellate court to ignore an appellant’s choice.”
State v. Rivas,
Defendants made six assignments of error, none of which involves the correctness of the trial court’s ruling that Brady’s post-trial evidence made Griffin’s trial testimony inadmissible. Defendants cited many cases in their opening brief; none deals with evaluating the admissibility of scientific evidence.
In defendants’ fifth assignment, they asserted that plaintiffs motion for a new trial was actually based on ORCP 64 B(5), which provides for a new trial if the evidence was insufficient to support the verdict. Although under the rule the only issue is the sufficiency of the evidence at trial, plaintiff responded in part by defending the trial court’s post-trial exclusion of Griffin’s testimony. Defendants did not respond to that point in their reply. In their third assignment on cross-appeal, plaintiff argued that the trial court should have stricken Griffin’s testimony during trial. In responding, defendants relied in part on the leading Supreme Court case on scientific evidence, State v. O’Key,
The majority seems to recognize those facts but argues that, because the trial court ruled on the scientific validity of Griffin’s testimony as part of granting a new trial under ORCP 64 B(4), and because defendants assign error to the grant of a new trial under that provision, we cannot decide whether the grant of a new trial is correct without deciding whether the trial court’s ruling is correct.
The majority also suggests that, because ORCP 64 B is a rule of procedure, cases such as Miller v. Water Wonderland Improvement Dist.,
Even if the majority were correct that we must decide an unraised issue, its result is wrong. The majority appears to rely primarily on Jennings v. Baxter Healthcare Corp.,
Jennings has little if anything to do with this case. Griffin did not rely on any research—published or unpublished—that he had conducted in reaching his conclusions. He did not assert that his testimony was based on novel theories. Rather, he relied on his general expertise in the field of drug examination and on several published research studies with which he had not been personally involved. The strength of his opinion depends on the strength of those studies. Rather, the relevant case is O’Key. In O’Key the Supreme Court evaluated the admissibility of the Horizontal Gaze Nystagmus test that an officer had used in determining that the defendant had driven while under the influence of intoxicants. The court took the opportunity to establish general criteria for the admission of scientific evidence. In doing so, it emphasized that “trial courts have an obligation to ensure that proffered expert scientific testimony that a court finds possesses significantly increased potential to influence the trier of fact as ‘scientific’ assertions is scientifically valid.” O’Key,
In O’Key the Supreme Court discussed the criteria that the Court described in Daubert for the admission of scientific evidence under the Federal Rules of Evidence, which are similar in these respects to the comparable Oregon rules. It noted that the first requirement
In this case that first requirement is decisive. Brady’s post-trial opinion makes it clear that Griffin’s evidence is not pertinent to the issue to which it is directed— whether the measurement of the total cannabinoids in plaintiffs urine indicated that he was impaired at the time of his injury. The thrust of Brady’s post-trial opinion provides strong scientific grounds for concluding that it is impossible to use that test for that purpose. Griffin’s post-trial affidavit supporting his testimony at trial does not confront Brady’s evidence. It consists of copies of three research studies on the relationship between marijuana and physical impairment and Griffin’s statement, unsupported by any scientific research, that the normal ratio between total cannabinoids and metabolites of the active ingredient is between 6 to 1 and 10 to 1. None of the studies that Griffin cited involves a measurement of either total cannabinoids or metabolites of the active ingredient in the urine, and none suggests a relationship between such a measurement at one time and impairment at another. The studies show that marijuana use can lead to impairment under certain circumstances, but they do not show that those circumstances are comparable to the circumstances in this case.
One study was a National Highway Traffic Safety Administration study that measured impairment in people who received measured doses of the active ingredient in marijuana or of a combination of the active ingredient and sufficient alcohol to bring their blood alcohol content to .04 percent. The test subjects began driving 30 minutes after receiving the drugs. There is no indication that they were tested for the amount of cannabinoids or metabolites in their urine or blood. To the contrary, the report commented that “there is no reliable and readily available laboratory marker for THC impairment as there is for alcohol.” This study, if anything, supports Brady’s opinion. A second study examined impairment in college students who were heavy users of marijuana—that is, who had used marijuana at least 22 of the 30 days before the test. Although the students had can-nabinoids in their urine, there was no attempt to correlate the amounts with their impairment. In any case, there is no evidence that plaintiffs marijuana use put him in the same category—or close to the same category—as the tested students.
The final study involved airline pilots who smoked a known dose of marijuana and then performed various activities on flight simulators. The study found residual effects that, in some pilots, lasted up to 24 hоurs, although the effects on a number of specific activities often disappeared after four or eight hours. The fundamental problem with the study for the purposes of this case is that it provides no information on whether the level of cannabinoids in plaintiffs urine has any probative value in determining whether his use of marijuana impaired him at the time of his injury. The evidence does not indicate whether the dose that plaintiff received was comparable to the doses that the pilots received, and the study does not indicate the level of cannabinoids or metabolites in the pilots’ urine.
For these reasons I would hold that the trial court correctly held that, given Brady’s post-trial evidence, and considering what Griffin provided after trial to support his trial testimony, Griffin’s testimony was not pertinent to the issues to which it was directed and thus was not proper scientific testimony. The remaining question is whether excluding Griffin’s testimony, along with all other evidence of plaintiffs use of marijuana, would have affected the outcome of the trial. In its decision the trial court emphasized the impact that evidence of marijuana would have on the jury:
“I would conclude as a trial judge that you get marijuana into the case, if it shouldn’t be there, and it’s just such powerful poison that it’s going to be impair, substantially impair the plaintiff’s right to get a fair determination of the facts of the case.”
Finally, in their sixth assignment of error defendants attack the trial court’s pretrial grant of plaintiffs motion for partial summary judgment on defendants’ affirmative defense of release. The majority does not reach that assignment. I would reject it, but it is not necessary for me to state my reasons for doing so. As does the majority, I would affirm on plaintiffs cross-appeal.
For these reasons, I respectfully dissent.
Defendants raised issues of comparative fault in their pleadings. Because the jury found that defendants were not at fault in any way that was a cause of damage to plaintiff, it did not reach the issue of comparative fault.
The Council on Court Procedures deleted ORCP 551 in December 2002.
This was the “hip shot” analysis that the trial court mentioned while ruling on plaintiff’s motion for a new trial. Contrary to the majority’s suggestions, the trial court’s comment had nothing to do with Brady’s testimony at trial.
The majority’s suggestion that Brady could have discovered before trial the evidence that he described after trial ignores the fact that before trial Brady, quite sensibly, looked for information about the screening test, not about a quantitative test that he believed did not exist. For the same reason, the majority’s suggestion that Brady represented before trial that he had conducted a complete survey of the scientific literature is misleading. Brady surveyed the literature that was relevant to the screening test, which is the only test about which he gave a pretrial opinion.
The “other evidence” to which Brady referred in his pretrial affidavit was the other evidence that he knew at the time—plaintiffs admitted use of marijuana early on the morning of his injury. It does not refer to the quantitative test that Brady, at the time of the affidavit, reasonably believed did not exist.
Brady’s first suggestion—that knowing the potency and precise amount would make it possible to determine impairment—was not necessary to his pretrial conclusion that one could not determine impairment from the screening test. Thus, it was not based on the level of research that became necessary once he learned of the quantitative test.
As those careful limitations on his testimony show, Brady did not “shoot from the hip” at trial, and the trial court did not state that he did. Rather, he gave the best opinion that he could given his limited time to do the necessary research.
Brady also repeated the statement in his pretrial affidavit that the other available information was also insufficient for that purpose. Thus, in his opinion, there was no evidence from which an expert could determine whether plaintiff was impaired.
Brady did not use the literature in Griffin’s file as a basis for his conclusions; rather he explained why it did not support Griffin’s conclusions.
The majority’s apparent theme is that a party is entitled to only one fairly conducted trial. I do not disagree. However, that general rule is subject to the trial court’s authority to award a new trial on grounds that, at least sinсe the adoption of the Deady Code in 1862, have included newly discovered evidence. Indeed, the majority ignores that the discovery of new evidence may indicate that the trial was not in fact as fair as it appeared to be at the time.
To the extent that the majority may suggest that evidence that exists before trial cannot be newly discovered for purposes of ORCP 64 B(4), it is wrong. Evidence cannot be newly discovered under the rule unless it existed before the end of the trial. See McCathern v. Toyota Motor Corp.,
An additional, and essential, distinction is that in each of those cases the trial court denied the motion for new trial. Thus, the issue on appeal was whether the evidence required the trial court to grant a new trial, not, as in this case, whether it permitted the court to do so.
ORCP 64 B applies to motions for a new trial in criminal cases. ORS 136.535(4).
Defendants did cite State v. O’Key,
The majority suggests that the trial court granted the motion partly in order to avoid new lawsuits, including one by plaintiff against Brady. Unlike the majority, I do not read a passing comment as stating the trial court’s reasoning in ordering the only new trial of its many years on the bench.
In their fifth assignment of error, defendants argue that the trial court could grant a new trial only if there was no evidence to support the verdict. As defendants recognize, that limitation applies only to a motion under ORCP 64 B(5), not to one based on the grounds on which plaintiff relied. Contrary to defendants’ argument, plaintiff asked the court to evaluate the evidence based on what Brady discovered after trial; he did not assert that the evidence at trial was itself insufficient to support the verdict.
Concurrence Opinion
concurring.
I agree with the majoritys disposition of the appeal and cross-appeal. Because I concur in the majority’s analysis that plaintiff failed to demonstrate that the alleged “newly discovered evidence” could not, with reasonable diligence, have been presented at trial, see
Landau, J., joins in this concurrence.