OTLA Trial Lawyer Spring 2021

55 Trial Lawyer • Spring 2021 later. The plaintiff was then told, for the first time, the screw had breached the L4 vertebra. The pedicle screw was surgi- cally removed, but it was too late for plaintiff ’s foot drop to resolve or im- prove. The plaintiff sued the defendants, alleging various specifications of negli- gence. The plaintiff ’s expert at trial was a board-certified neurosurgeon with over 30 years of experience performing spinal surgeries. The expert had served as a hospital medical director reviewing the chart notes of other doctors. Nonethe- less, the trial court ruled the expert was not qualified to testify on two of the plaintiff ’s negligence specifications and later granted a directed verdict against the plaintiff ’s claims on the defendant’s argument that the expert’s testimony had failed to prove the requisite causation of the plaintiff ’s injuries. The plaintiff ap- pealed those rulings and the Court of Appeals reversed each of them. The Court of Appeals first clarified under prevailing law that proof of causa- tion of an injury in a medical negligence case is satisfied under the “but-for” test and does not require certainty over the degree of harm caused. The court con- cluded “[a] jury could have found that a pedicle screw left in a position to impinge a nerve root is likely to cause lasting in- jury, and, given [the expert]’s testimony and the record, plaintiff provided proof of the injury caused by defendants’ neg- ligence with sufficient certainty for plaintiff ’s claim to reach the jury.” Additionally, the court concluded the expert’s “education, training, and exten- sive experience in neurosurgery and post-surgical care” sufficiently qualified him to testify about the adequacy of both the defendants’ post-surgical communi- cations with the plaintiff and post-surgi- cal care. The court concluded the expert’s testimony was offered to be helpful to the jury and to “assist the jury in resolv- ing whether defendants’ post-surgical efforts, or lack of efforts, deviated from the standard of care.” Triable fact issue remained on whether statute of limitation on mother’s NIED claim tolled due to disabling condition of extreme grief under ORS 12.160. Estate of Thompson v. Portland Adven- tist Med Ctr , 309 Or App 11 (2021) Kamins, J. Nadia Dahab and Diego Conde represented the plaintiff. In August 2012, Monica Thompson gave birth by C-section at the defendant’s hospital. The night before being dis- charged, the hospital staff gave her both sleeping medication and narcotic pain- killers in the late evening. Just over three hours later, the hospital brought the baby to the mother to nurse and left the two alone. One hour later, Thompson awoke to find her baby suffocated and unre- sponsive. Six days later the baby died. Thompson began to treat thereafter for debilitating grief, post-traumatic stress disorder and major depressive or- der. Three years later, the mother’s symp- toms remained severe: “psychological distress, * * * prolonged and serious functional impairment, distorted sense of blame, * * * and memory problems exclusive to the event.” In the summer of 2017, Thompson filed a lawsuit alleg- ing, among other things, NIED (negli- gent infliction of emotional distress) claims against the hospital and the un- known nurse who brought the baby to her. The defendants moved for summary judgment against those claims on the basis of the statute of limitation having ran. Thompson argued her therapy notes establish she had a disabling mental condition that tolled the statute of limi- tations under ORS 12.160. The trial court disagreed and granted the sum- mary judgment motion. Thompson initiated this appeal. The Court of Appeals reversed the trial court’s decision for two reasons. First, the factual record relied on by the trial court consisted of therapy records that could give rise to competing infer- ences as to whether Thompson knew the defendants had harmed her. Second, Thompson had submitted an ORCP 47 E declaration stating a qualified expert would testify at trial “about the impacts that ‘[PTSD], depressive disorders, be- reavement, and cognitive impairments’ have on the ‘mental process of compre- hension, judgment, memory, and reason- ing’ of both individuals in general and Thompson in particular.” Taken to- gether, the Court of Appeals concluded there were material fact issues regarding whether Thompson had a disabling mental condition under ORS 12.160 that had tolled the statute of limitations on her claims. Common law wrongful discharge claim lies where employer discharges em- ployee for seeking legal advice related to stalking calls that employee received at work. Rohrer v. Oswego Cove, LLC. , 309 Or App 489 (2021); Tookey, J. The plaintiff was represented by Daniel Kalish. Cody Hoesly specializes in appeals, finan- cial fraud and commercial cases. He contributes to OTLA Guardians at the Sustaining Member level. Hoesly is a partner with Larkins Vacura Kayser LLP, 121 SWMorrison St., Ste. 700, Portland, OR 97204. He can be reached at 503-222- 4424 or choesly@lvklaw.com. Lisa T. Hunt specializes in appeals, general civil litigation, and full-scale trial and motions support for plaintiff ’s attor- neys. She can be reached at the Law Office of Lisa T. Hunt, LLC, 503-515-8501 or lthunt@lthuntlaw.com. Christine Moore specializes in appeals, aviation and general civil litigation. She contributes to OTLA Guardians at the Sustaining Member level. She is a partner with Richardson Wright LLP, 805 SW Broadway, Ste. 470, Portland, OR 97205. She can be reached at 503-546-4637 or christine@richardsonwright.com.