Northwest Business Litigation

Cameras will be allowed in federal district courts in the Ninth Circuit

Ninth Circuit Chief Judge Alex Kozinski yesterday announced that, for the first time, video recordings will be allowed in the district courts within the circuit.  Criminal cases and jury trials will be excluded from the experimental program.  Chief judges of each district will select cases to be recorded, and will report on their experiences to the Judicial Council of the Ninth Circuit. 

Oregon Supreme Court adopts a new approach to statutory interpretation

The Oregon Supreme Court issued an opinion last week that refines the judiciary's approach to interpreting statutes.  Oregon courts may now consider a statute's legislative history, even where its text and context are unambiguous.

In State v. Gaines, the Court concluded that, in light of the 2001 amendments to ORS 174.020, the appropriate methodology for interpreting a statute continues to place the most significance on a statute's text and context.  However, application of the State v. Gaines methodology will no longer require an ambiguity in the text of a statute as a necessary predicate to consideration of pertinent legislative history.  Instead, a party is free to proffer legislative history to the court, and the court will consult it after examining text and context, even if the court does not perceive an ambiguity in the statute's text.  The extent of the court's consideration of that history, and the evaluative weight that the court gives it, is for the court to determine.  Finally, if the legislature's intent remains unclear after examining text, context, and legislative history, the court may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty.

This opinion moves the courts away from the methodology adopted in 1993 in PGE v. BOLI, which barred consideration of legislative history absent an ambiguity in the statutory text and context.

LA Times on ideological battles in the Ninth Circuit

The Los Angeles Times yesterday published this article about the influence of conservative judges on the Ninth Circuit Court of Appeals, including what observers say is strategic use of dissents from denial of en banc rehearing.  The article notes that a bill pending in Congress could add six more judges to the court, bringing the number of active judges to 35.

Budget problems disrupt operations at the Oregon Court of Appeals

Budget cuts are forcing significant changes at the Oregon Court of Appeals, according to a statement released this week by Chief Judge David Brewer.  Due to staffing reductions, the Court of Appeals will curtail its April oral argument calendar and may hear fewer oral arguments in subsequent months as well.  The court will consider rule changes that may shorten the maximum length of appeal briefs and end the practice of allowing oral arguments in every attorney-represented case.

See Judge Brewer's full statement here.

Funding allows state courts to open Fridays

Oregon state courts are closed today, but will be open Fridays starting next week, following an agreement by legislators and Chief Justice Paul DeMuniz to shift additional funds to court operations.  Last month Justice DeMuniz had announced that budget cuts would require courts to close one day a week. 

See this report from The Oregonian.

Federal law does not pre-empt state law tort claim, U.S. Supreme Court holds

In an opinion long-awaited in product liability circles, the U. S. Supreme Court today affirmed the Vermont Supreme Court and held that federal food and drug law does not pre-empt state law failure-to-warn tort claims. Wyeth v. Levine is a pharmaceutical case brought by a patient who was injured following administration of Wyeth's drug Phenergan.  Wyeth argued that the state law claims were pre-empted because it is impossible for the company to comply with both the state law duties underlying those claims and the company's federal labeling duties.  The Court rejected that argument.  The Court also rejected Wyeth's reliance on the preamble to a 2006 regulation which declared that state law failure-to-warn claims threaten the FDA's statutorily-prescribed role.  Justice Stevens delivered the opinion of the Court.  You can find that opinion and the concurrences and dissent here .

Budget cuts force Oregon courts to close on Fridays

Starting March 13, Oregon's circuit courts, tax court, court of appeals, and supreme court will be closed on Fridays due to budget cuts.  The closure will continue until the state legislature allocates more funds.

See this report from The Oregonian.

Out-of-state lawyer gets a pass in federal court

A claim of unauthorized practice of law figured into a dispute over attorney fees resolved this week by the Ninth Circuit.  In a lawsuit for breach of a severance contract filed in federal court in California, plaintiffs sought to recover fees under a California statute.  Defendant argued that plaintiff couldn't recover fees incurred by an Oregon lawyer (the father of the plaintiff's California lawyer) who assisted on the case because that lawyer wasn't licensed in California and wasn't admitted pro hac vice to appear in the matter.  The district court agreed, holding that the out-of-state lawyer was not authorized to work on issues of California law for a California client pending in a California court, and thus was precluded from recovering fees.

On appeal, the Ninth Circuit avoided the thorny issue of unauthorized practice of law under California law (see the 1998 case of Birbrower, Montalbano, Condon & Frank, PC v. Superior Court), noting that admission rules and procedures for federal court are independent of those for state court.  Citing federal case law, Judge Milan D. Smith, Jr. stated that the Oregon lawyer's fees are recoverable because (1) he would readily have been admitted pro hac vice in the case had he applied, and, in any event, (2) his involvement had not risen to the level of an "appearance."  As to the second point, Judge Smith wrote "This court has permitted fee recovery for the work of paralegals, database managers, legal support, summer associates, and even attorneys who have yet to pass the bar."  A lawyer who does not "appear" in the case is like a litigation consultant, and his fees should be recoverable even if he is not admitted to practice before the court in which the case is pending.

Judge Pamela Ann Rymer wrote an extensive dissenting opinion, arguing that California law on unauthorized practice of law should guide the court and would lead to a different result.

See the opinion in Winterrowd v. American General Annuity Insurance Co. here.

Judge Mosman offers a new perspective on oral argument

Judge Michael W. Mosman, one of Oregon's federal district court judges, has written an article titled "Five Oral Argument Tips - For Judges." Here, courtesy of the blog How Appealing, is Judge Mosman's article, originally published in the October 2008 issue of The Federal Lawyer.

Oregon Supreme Court opens gate to scientific expert testimony

This week the Oregon Supreme Court reversed the Court of Appeals and allowed the admission of a medical expert's testimony on the causation of an alleged injury.  In Marcum v. Adventist Health System/West, plaintiff had received an injection of contrast dye in her hand in anticipation of undergoing an MRI. The technician injected the dye into the surrounding tissues instead of the vein, and plaintiff suffered immediate and ongoing symptoms, including pain, swelling and discoloration of plaintiff's hand.  At the ensuing trial, plaintiff's expert sought to testify that the dye injection caused plaintiff's injuries. 

In its "gatekeeping" role, the trial court considered the seven factors for admissibility of scientific evidence, excluded the testimony, and entered a directed verdict for defendant.  Those factors are:  (1) the technique's general acceptance in the field; (2) the expert's qualifications and stature; (3) the use which has been made of the technique; (4) the potential rate of error; (5) the existence of specialized literature; (6) the novelty of the invention [if one is involved]; and (7) the extent to which the technique relies on the subjective interpretation of the expert.  The Court of Appeals affirmed, stating that the expert failed to identify a scientifically valid cause of the injury.

The Oregon Supreme Court concluded that the trial court should have allowed the testimony.  The Court noted that while some of the admissibility factors pertain to techniques and tests, the key issue in this case was causation.  Justice Thomas Balmer, writing for the Court, discussed at length the case of Jennings v. Baxter from 2000, which allowed the use of a "differential diagnosis"---the inclusion of all potential causes, followed by the elimination of all but the posited cause---to prove causation.  While some of the factors in the instant case weighed in favor of exclusion (novelty, lack of a mechanism to explain causation, lack of published studies and rate of error), the Court determined that the nature of plaintiff's injury (sudden, immediate, localized), coupled with the "differential diagnosis" evidence proffered by her expert, weighed in favor of opening the gate to this plaintiff.  Accordingly, the Court reversed and remanded to the Court of Appeals for further consideration of other unresolved issues.  You can find the Oregon Supreme Court's opinion here.