Mitchell v. Mt. Hood Meadows Oreg.

• Decision Date: 06 October 2004
• Citation: 99 P.3d 748,195 Or. App. 431
• Parties: William E. MITCHELL, Respondent-Cross-Appellant, v. MT. HOOD MEADOWS OREG., Limited Partnership, an Oregon limited partnership; and Mt. Hood Meadows Development Corp., an Oregon corporation, Appellants-Cross-Respondents.
• Court: Oregon Court of Appeals

99 P.3d 748

195 Or. App. 431

William E. MITCHELL, Respondent-Cross-Appellant, v. MT. HOOD MEADOWS OREG., Limited Partnership, an Oregon limited partnership; and Mt. Hood Meadows Development Corp., an Oregon corporation, Appellants-Cross-Respondents.

0005-05389, A116119.

Court of Appeals of Oregon.

Argued and Submitted July 22, 2003.

Resubmitted July 14, 2004.

Decided October 6, 2004.

Brad C. Stanford, Portland, argued the cause for appellants-cross-respondents. With him on the opening brief was Tara J. Schleicher and Farleigh, Wada & Witt, P.C.

Brian J. Posewitz, Portland, argued the cause for respondent-cross-appellant. With him on the briefs were Dennis E. Westlind and Tonkon Torp LLP.

Before DEITS, Chief Judge, EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, BREWER, SCHUMAN, and ORTEGA, Judges.

Resubmitted En Banc July 14, 2004.

EDMONDS, J.

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 evidentiary 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 plaintiff's urine after the accident that showed 603 nanograms of cannabinoids 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 plaintiff's, 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?"¹

After trial, plaintiff moved for a new trial under ORCP 64 B(1), (2), (3), and (4). ORCP 64 provides that a trial court may set aside a verdict and grant a new trial on grounds that include:

"B(1) 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 plaintiff's 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 [plaintiff's 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 plaintiff's 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 I²] 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 plaintiff's 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 plaintiff's subpoena constituted a justification under ORCP 55 I to grant a new trial. Third, and finally, the trial court ruled that a new trial would avoid a malpractice claim against Brady, plaintiff's expert witness, because of, according to the trial court, Brady's "hip shot analysis" at trial.

On appeal, defendants make six assignments of error: (1) They assert that the trial court erred in granting plaintiff's motion for a new trial because the jury did not reach the question of comparative negligence, the question on which they claim that plaintiff's 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 plaintiff's argument was that his expert

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