Kahn v. Pony Express Courier Corp.

• Decision Date: 14 March 2001
• Citation: 20 P.3d 837,173 Or. App. 127
• Parties: Steven A. KAHN, Personal Representative of the Estate of Corrine M. Tabert, Respondent, and State of Oregon, Acting by and through State Office for Services to Children and Families, Intervenor below, v. PONY EXPRESS COURIER CORPORATION, aka Pony Express Delivery Services, Inc., and William S. Colton, individually, Appellants.
• Court: Oregon Court of Appeals

20 P.3d 837

173 Or. App. 127

Steven A. KAHN, Personal Representative of the Estate of Corrine M. Tabert, Respondent, andState of Oregon, Acting by and through State Office for Services to Children and Families, Intervenor below, v.PONY EXPRESS COURIER CORPORATION, aka Pony Express Delivery Services, Inc., and William S. Colton, individually, Appellants.

(9710-08258; CA A104742)

Court of Appeals of Oregon.

Argued and Submitted October 13, 2000.

Decided March 14, 2001.

Thomas M. Christ, Portland, argued the cause for appellants.With him on the opening brief were Mitchell, Lang & Smith and Danny L. Hitt, Jr., James L. Hiller, and Hitt, Hiller & Monfils, Portland.

Roy Pulvers, Portland, argued the cause for respondent.With him on the brief was Lindsay, Hart, Neil & Weigler, LLP.

Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Michael C. Livingston, Assistant Attorney General, filed a brief amicus curiae for State Office for Services to Children and Families.

Before WOLLHEIM, Presiding Judge, and DEITS, Chief Judge,¹ and BREWER, Judge.

BREWER, J.

In this wrongful death action, defendantsPony Express Courier Corporation(Pony Express) and William S. Colton appeal a judgment entered after a jury returned a verdict for plaintiff, the personal representative of the estate of decedent Corinne Tabert.Tabert died, and her seven-year-old daughter was severely injured, as a result of being struck by a delivery van owned by Pony Express and driven by Colton.Defendants admitted fault, and the case was tried as to damages only.The jury awarded plaintiff economic damages of $56,210 for the loss of Tabert's services to her daughter and $15,613.80 for the loss of Tabert's monetary support of her daughter.It also awarded plaintiff noneconomic damages of $10,000 for Tabert's pain and suffering before her death and $850,000 for the daughter's loss of Tabert's society and companionship.Pursuant to ORS 18.560, imposing a $500,000 limitation on noneconomic damages,²the trial court reduced the verdict by $360,000 and entered judgment for plaintiff for $571,822.80 plus costs.

On appeal, defendants argue that the trial court erred in denying their motion to compel production of records of the State Office for Services to Children and Families (SCF), if any, in the possession of plaintiff's legal counsel.³Defendants also argue that the court erred in granting plaintiff's motion in limine to exclude evidence of or reference to records of the Montana Department of Family Services(DFS).They next argue that the trial court erred in allowing an expert witness to testify as to what another expert told him in an out-of-court conversation.Finally, they argue that the trial court erred in instructing the jury that the daughter's loss of Tabert's services was an element of plaintiff's economic damages.We affirm.

We begin with defendants' assignment of error relating to SCF records, if any, in the possession of plaintiff's counsel.Before trial, defendants moved to compel production of the records from plaintiff, including information SCF may have received from out-of-state social service agencies, asserting that they contained information about Tabert's marriages, her possible substance abuse problems, and her relationship with her daughter.The trial court denied the motion.

On appeal, defendants contend that the records were relevant to the issue of the relationship between Tabert and her daughter, that they were entitled to discovery of the records under ORCP 36 B(1), that ORS 409.225 did not prohibit their disclosure, and that the trial court's denial of their motion was error requiring reversal.⁴Plaintiff responds that defendants did not preserve the issue for appeal, because they failed to make an offer of proof, because they failed to request in camera review of the records, and because, according to plaintiff, they raise new arguments on appeal.On the merits, plaintiff contends that ORS 409.225 prohibits discovery of the records.

We first reject plaintiff's argument that defendants failed to preserve this issue because, on appeal, they make new arguments relating to the application of ORS 409.225.At the hearing on defendants' motion to compel production of the records, defendants raised the issue of the disclosability of the records and cited ORCP 36 B(1) and ORS 409.225, among other authorities, for their contentions in that regard.In addition, the parties, as well as a legal representative of SCF, made extensive arguments relating to the proper interpretation and application of the latter statute in this context.⁵That was enough.SeeState v. Hitz,307 Or. 183, 188, 766 P.2d 373(1988)(raising an issue at trial is ordinarily essential, raising the source for that position is less essential, and raising a particular argument is the least essential).

We also reject plaintiff's argument that, under State v. Affeld,307 Or. 125, 764 P.2d 220(1988), and related cases, defendants did not preserve this issue because they failed to make an "offer of proof" as to the nature of the documents sought.Plaintiff is correct that, under Affeld, an offer of proof is required when the trial court excludes evidence, unless the trial court refused to allow the offer of proof to be made.Here, however, the trial court did not exclude evidence; rather, the trial court denied defendants' motion to compel production of documents.Plaintiff's reliance on Affeld therefore is misplaced.

That is not to say, however, that, in the context of a motion to compel the production of documents as to which the opposing party has asserted a privilege against discovery, the party seeking production need not make some showing in regard to, and the trial court need not determine, whether the documents are, in fact, subject to discovery.Frease v. Glazer,330 Or. 364, 371-74, 4 P.3d 56(2000), is instructive in that regard.In that case, the plaintiff moved to compel production of the defendant attorney's files relating to his representation of a client.As pertinent here, the defendant opposed production on the ground that the files were subject to the attorney-client privilege, OEC 503.In turn, the plaintiff asserted that the files nevertheless were discoverable, because they were subject to the crime-fraud exception to that privilege, OEC 503(4)(a).The trial court ordered the defendant to turn over his files for in camera review for the purpose of determining whether any of the documents was subject to the crime-fraud exception.The defendant initiated a mandamus proceeding, seeking a directive that the court vacate its order.Id. at 368-69, 4 P.3d 56.

The Supreme Court first noted that "[t]he attorney-client privilege is one of the oldest and most widely recognized evidentiary privileges" and that "the parties[did] not dispute the existence of" that privilege.Id. at 370-71, 4 P.3d 56.The court also noted that neither the evidence code nor the court's previous jurisprudence established the "appropriate legal standard for a trial court to apply" in ordering in camera review of documents for the purpose of determining the applicability of that privilege.Id. at 372, 4 P.3d 56.Adopting the approach set out in United States v. Zolin,491 U.S. 554, 109 S.Ct. 2619, 105 L.Ed.2d 469(1989), the court concluded that,

"`before a trial court may engage in in camera review at the request of the party opposing the attorney-client privilege on the basis of the crime-fraud exception, that party must present evidence sufficient to support a reasonable belief that in camera review may yield evidence that establishes the exception's applicability.'"Frease,330 Or. at 372, 4 P.3d 56(quotingZolin,491 U.S. at 574-75, 109 S.Ct. 2619).

The court also explained that, on appeal, the trial court's determination whether the party's showing was sufficient is reviewable for legal error.Id. at 373-74, 109 S.Ct. 2619.

Viewed in the abstract, the principle applied in Frease, although applied in a novel context in that case, was the well-established one that the proponent of a particular position or result has the burden of demonstrating the existence of a basis for that position or result.See, e.g., State v. Cunningham,164 Or.App. 680, 688, 995 P.2d 561,rev. den.331 Or. 283(2000)(noting"the legal proposition that a proponent of a request to the court has the burden of demonstrating prima facie grounds for the relief requested");State v. Arellano,149 Or.App. 86, 90, 941 P.2d 1089(1997),rev. dismissed as improvidently allowed327 Or. 555, 971 P.2d 411(1998)(in an OEC 104 hearing, the proponent of evidence generally has the burden of establishing the factual prerequisites for admissibility).Accordingly, although the parties and the trial court in this case did not have the benefit of the Supreme Court's analysis in Frease, it is appropriate to apply that principle here.In addition, we note that the principle properly is applicable not only to a factual assertion that documents are subject to an exception to an asserted privilege but also to a factual assertion that documents do not, in the first instance, fall within the scope of the privilege.In either circumstance, it is incumbent on the party seeking disclosure to present to the trial court"sufficient evidence" of that fact.Again, on appeal, we review the trial court's determination regarding the sufficiency of the factual showing for legal error.

Before applying that standard here, however, we must first consider a threshold question: whether, as a matter of law, there exists a privilege against discovery of SCF records under ORS 409.225 or any other statute.If there does not, the records in this case were presumptively discoverable.If, by contrast, there exists a privilege against discovery under ORCP 36 B(1) that is applicable to any or all of the records at issue in this case, it was then, and only then, incumbent upon defendants to "present...