OADC_AC25_CLE

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OADC Annual Convention CONTINUING LEGAL EDUCATION GUIDEBOOK

CONTENTS

CLE Complete Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Speaker Profiles . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Sessions Supreme Court Update. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Defending Against Depositions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Judges Tell All . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 Implicit Bias. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 Oregon Appellate Update. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 113 Moody for Everyone. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 159 Lightning Round. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172

2025-2026 DPA SCHEDULE IS HERE

September 9, 2025 - Getting Your Game On October 14, 2025 - Discovery November 11, 2025 - Depositions and Corporate Depos January 27, 2026 - Writing & Arguing Winning Motions/MSJs March 10, 2026 - Mediation / AD and Arbitration April 21, 2026 - Trial – Part I June 2026 at Convention - Trial – Part II

Reserve your spot today!

Contact Geoff Horning ghorning@oadc.com

More details at www.oadc.com/defense-practice-academy

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DOWNLOAD THE OADC MOBILE APP Connect with other members, view the schedule, and more!

Your Convention experience will be a lot more cohesive.

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SCHEDULE - FRIDAY, JUNE 13

7:00am - 7:45am

Registration, Breakfast, & Exhibits Open

7:45am - 8:00am

Welcome & Introductions, Law Student Scholarship Recipients, and Announcements

8:00am - 9:00am

Supreme Court Update Thomas Dupree Thomas Dupree will discuss potential impacts on the current Supreme Court and recent decisions from the Court.

9:00am - 9:15am

BREAK

9:15am - 9:30am

Awards

9:30am - 10:30am

Defending Against Depositions Chad Colton & Sarah Tuthill-Kveton Join Chad and Sarah as we discuss practical tips, advice, and pitfalls to avoid regarding depositions, including addressing reptile tactics, preparing for ORCP 39(C)(6) depositions of organizations, and more.

10:30am - 10:45am

BREAK

10:45am - 11:00am

Defense Practice Academy Graduation

11:00am - 12:00pm

Judges Tell All: Practical Tips from the Bench Judge Beth Bagley, Judge James Edmonds,& Judge Jenna Plank Our panel of judges, former litigators, will address the changes in practice they have seen since taking the bench, tips and tricks on framing and presenting arguments, the use of technology and media in trial, and dealing amicably with opposing counsel.

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SCHEDULE - SATURDAY, JUNE 14 7:30am - 8:00am

Registration & Breakfast

7:45am - 8:00am

Intro & Announcements

8:00am - 9:00am

Implicit Bias Judge Oden-Orr Judge Oden-Orr will help defense attorneys identify, navigate, and prevent implicit bias in the legal profession.

9:00am - 9:15am

SPONSOR SPOTLIGHT & NETWORKING BREAK WITH OADC EXHIBITORS

9:15am - 10:15am

Appellate Update Sasha Petrova, Nathan Morales, Ivan Resendiz-Gutierrez Appellate lawyers Ivan Resendiz-Gutierrez, Sasha Petrova, and Nathan Morales will review appellate updates from this past year as well as what is in the pipeline to be decided in the future that will impact our practices.

10:15am - 10:45am

NETWORKING WITH OADC EXHIBITORS

10:45am - 11:45am

Moody for Everyone: Universal Concepts Every Defense Attorney Should Know About Insurer Negligence Per Se Bryce Adams & Sean McKean While every OADC member has at least heard of “Moody” claims by now, practitioners outside the worlds of coverage and insurance defense can’t be expected to know Moody inside and out. But plaintiffs’ attorneys are only getting started with this new rule, and sooner or later, every OADC member will need to explain Moody claims to a client—and have a strategy to beat them. Join specialists in Moody litigation from Bullivant Houser Bailey as they provide tools for confronting Moody claims which can benefit every OADC member, from new lawyers to senior counsel. By popular demand, this presentation will offer particular insights into challenging Moody claims with UIM and property damage.

11:45am - 12:00pm

NETWORKING WITH OADC EXHIBITORS

12:00pm - 1:00pm

Lightning Round: Trial Lessons Learned the Hard Way Heather Bowman, Megan Cook, Kirsten Curtis, Sharlei Hsu & Dan Larsen OADC’s past, present, and future presidents and practice group leaders will present war stories of big trial screwups and surprises, things they wish they knew sooner, and tips to help OADC members avoid learning these same lessons the hard way.

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SPEAKER PROFILES

JUDGE BETH BAGLEY Judge Bagley was elected to the Deschutes County Circuit Court November, 2012, and took the bench January, 2013. Judge Bagley handles general civil,

BRYCE ADAMS

criminal and domestic relations cases. Prior to taking the bench, Judge Bagley was a prosecutor for 13 years, and a criminal defense attorney

Bryce is a shareholder in Bullivant’s insurance law group who specializes

handling indigent defense cases for 2 years before that. Judge Bagley

in defending multinational property insurers against bad faith claims

received her undergraduate degree from the University of California—

stemming from ORS 746.230. He has written and spoken prolifically on

Santa Barbara in 1994, and her law degree from the University of

Moody for local and national audiences ever since the Oregon Court of

Minnesota Law School in 1997. Judge Bagley has lived and practiced law

Appeals first propounded this doctrine in early 2022. As of 2025, his

in Oregon since 1997. Judge Bagley is currently an executive committee

practice involves fighting Moody claims in every case he defends. Along

officer for the Oregon Circuit Court Judges Association, was one of the

the way, he has developed special expertise in attacking the statutory

founding Board Members of OAPABA (Oregon Asian Pacific American

underpinnings of Moody allegations, coupled with a keen awareness that

Bar Association), is a member of Oregon Women Lawyers and its affiliate

Moody alone is meaningless: what matters is how defense counsel guides

chapter Cascade Women Lawyers, regularly provides training and

the evolution of this doctrine over the next decade to create bright lines

education to judges and lawyers and is an active volunteer in her local Bar

about where Moody claims can and cannot be brought.

Association and community.

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HEATHER BOWMAN Heather Bowman became the General Counsel for the Professional Liability Fund in 2022.

Ms. Bowman received her Juris Doctor from the University of Washington School of Law (2007) and her Bachelor of Arts degree from Seattle Pacific University (2001). She was admitted to the Oregon state and federal bars in 2007 and the Washington State Bar Association in 2008.

Before joining the PLF as a claims attorney in 2018, Ms. Bowman was a partner at a Portland, Oregon law firm where she defended complex civil litigation matters focusing on professional liability, insurance coverage, employment discrimination, and real property disputes. She serves on the board of the Oregon Association of Defense Counsel and is an active member of Oregon Women Lawyers, the Multnomah Bar Association, and the Defense Research Institute. She previously served as a board member for the Oregon State Bar State Professional Responsibility Board.

Ms. Bowman is an active mentor with the Oregon State Bar New Lawyer Mentoring Program and has served as a mentor through Lewis & Clark Law School and Portland State University. She co-authored the chapter on Employment Law mediation in the Oregon State Bar publication ADR in Oregon (OSB Legal Pubs 2019) and co-edited the Oregon State Bar publication Damages (OSB Legal Pubs 2016).

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CHAD COLTON most litigators don’t: “actual trial experience and outstanding public speaking Chad has taken nearly 30 cases to trial across the country and often serves

skills.” When called upon as parachute trial counsel, Chad and his team

as “parachute” trial counsel, joining cases at the mid-way point or on the eve

quickly assess the case and formulate an understandable, hard-hitting trial

of trial. Over the last few years, he has been lead trial counsel on some of

package that will resonate with jurors. Chad also works seamlessly with

the most high-profile jury trials in the Pacific Northwest, including defeating

other law firms, joining the team to take on the most difficult aspects of trial

Nike’s eight-figure claims against NFL star Odell Beckham Jr. Chad is

so that they can focus on settlement and other critical case tasks. Chad’s

recognized as “a go-to lawyer for bet-the-company commercial litigation” by

ability to rapidly understand a complex case and prepare for trial is the result

the country’s leading legal ranking guide, Chambers USA. He serves as lead

of nearly two decades of studying trial techniques and refining his talents

counsel in business cases involving contracts, partnership disputes, trade

through hands-on experience in the courtroom. As one client put it, “In the

secrets, fiduciary duties, intellectual property, and high-damages tort claims.

courtroom, Chad holds a charismatic presence of integrity with the judge

He represents clients in a variety of industries, including technology, health

and jury that delivers results and makes you proud to have him representing

care, agriculture, and sports and entertainment—representing or opposing

you.” Chad loves his craft and shares tips on trial work, depositions, and oral

A-list celebrities and major sports brands. While Chad is well-versed in all

argument with his peers through his video series “When You Need to Win”

stages of litigation, his true passion is his parachute trial practice. Most

and live seminars. Chad balances his work with his dedication to his family

commercial cases don’t go to trial. Consequently, even many of the most

and (some may say) an insufferable obsession with karaoke, old Led Zeppelin

brilliant and sophisticated litigators haven’t had the opportunity to develop

albums, and playing loud guitar. He also stays active in his community,

deep trial expertise. So, when business litigation actually heads to trial,

having served on the boards of directors for numerous non-profits and legal

clients can find themselves anxious about presenting complex business

organizations, including Civics Learning Project, Up & Out, Quechua Benefit,

concepts to a judge or jury. That’s where Chad comes in to help. As market

the Technology and Corporate Counsel sections of the Oregon State Bar, and

sources reported to Chambers, Chad is an “elite trial lawyer” who has what

the Oregon Association of Defense Counsel.

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KIRSTEN CURTIS Kirsten Curtis is a Shareholder in Bullivant’s Insurance group who is adept at assisting Special Investigation Units with defense of first and thirdparty claims. With over a decade of experience, she is a trusted advisor to

MEGAN COOK

coverage providers in Oregon and Washington and is known for her skill drafting coverage opinions and managing all phases of claims litigation.

Megan Cook’s Oregon and Washington litigation practice focuses on

Kirsten has over a dozen jury and bench trials in Oregon and Washington

defending personal and catastrophic injury claims. She has defended a

under her belt, as well as court mandated and binding arbitrations. She

wide variety of businesses and individuals in personal injury, construction

sits as an arbitrator in Multnomah and Deschutes Counties in Oregon, and

defect, asbestos and professional liability cases. In addition, she has

is also appointed as an arbitrator for UIM arbitrations. Based in Central

experience in environmental, insurance, business, real estate, and land use

Oregon, Kirsten brings a unique familiarity with the central and eastern

law.

Oregon jurisdiction.

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Thomas Dupree Federal Programs and Torts branches, as well as the Office of Immigration Thomas H. Dupree returns to the OADC Convention following his popular

Litigation and the Office of Consumer Litigation. Mr. Dupree was responsible

presentation in 2022. He is co-partner in charge of the Washington, DC office

for managing many of the government’s most significant cases involving

of Gibson, Dunn & Crutcher, co-chair of the firm’s nationwide Appellate and

regulatory, commercial, constitutional and national security matters on

Constitutional Law practice group, and a member of the firm’s litigation

behalf of virtually all of the federal agencies, the White House, and senior

department. Mr. Dupree is an experienced trial and appellate advocate.

federal officials. Before being named the division’s top deputy, Mr. Dupree

He has argued more than 100 appeals in the federal courts, including

ran its largest litigating branch, managing a staff of 280 lawyers. Legal

in all thirteen circuits as well as the United States Supreme Court. He

Times has called Mr. Dupree “no stranger to high-profile work.” Among

has represented clients throughout the country in a wide variety of trial

other things, he played a substantial role in the successful representation

and appellate matters, including cases involving punitive damages, class

of George W. Bush before the United States Supreme Court in Bush v.

actions, product liability, arbitration, intellectual property, employment,

Gore, and represented New England Patriots quarterback Tom Brady in

and constitutional challenges to federal and state statutes. Chambers and

challenging his “Deflategate” suspension. Mr. Dupree argued and won, by

Partners has named Mr. Dupree one of the leading appellate lawyers in the

a unanimous 9-0 vote, a landmark personal jurisdiction case in the United

United States every year from 2012 through 2023, and The Legal 500 has

States Supreme Court, Daimler AG v. Bauman. For this achievement,

similarly recognized Mr. Dupree for years as one of the nation’s “leading

American Lawyer magazine named him Litigator of the Week, noting that

lawyers.” Mr. Dupree previously served in the United States Department

he “won over both the liberal and conservative wings of the court.” In 2021,

of Justice. He was appointed Deputy Assistant Attorney General for the

American Lawyer again named Mr. Dupree its Litigator of the Week. This time

Civil Division, and later became the Principal Deputy Assistant Attorney

he was recognized for winning a highprofile appeal in the midst of the chaos

General. In that capacity, he served as the division’s second-in-command,

enveloping the U.S. Capitol on January 6.

overseeing the more than 900 lawyers in the Civil Appellate, Commercial,

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DANIEL LARSEN

JUDGE JAMES EDMONDS

Daniel Larsen is a Shareholder in Buchalter’s Intellectual Property, Jim Edmonds was appointed to the Marion County Circuit Court by

Commercial Litigation, and Health Care Practice Groups. Within these

Governor Brown in 2021. Prior to joining the bench, he was a civil trial

practice areas, Mr. Larsen advocates and provides trusted advice to his

lawyer for 35 years representing individuals, businesses, and organizations

clients for most varieties of business disputes. Whether as a litigator or

primarily in the areas of commercial, insurance and general tort litigation.

advisor, he guides his clients towards creative, cost-effective solutions to

For his entire practice, Jim was with the law firm of Clark, Marsh and

achieve business goals while navigating risk by balancing the business

Lindauer (and its successor firms). He earned his bachelor’s degree

interests and economic realities unique to each of his clients. His pragmatic

from University of Oregon and his law degree from George Washington

approach crafts solutions that are both feasible and practical that promote

University. For the past 10 years, he has been an adjunct law professor

his clients’ interests. Mr. Larsen’s substantive expertise applies to most

at Willamette College of Law currently teaching Pre Trial-Civil Litigation,

commercial relationships and transactions, centered on contractual

Alternative Dispute Resolution, and in the past, Arbitration Law, and

and statutory obligations, duties of directors, officers, and managers of

Insurance Law. He has been active in the community volunteering with the

businesses, shareholder rights, intellectual property rights, particularly

United Way Mid Willamette Valley (President, Board of Directors), Marion

involving trade secrets, trademarks, and copyrights, and commercial

County Association of Defenders (Board), OSB Disciplinary Panel( hearings

healthcare relationships. Mr. Larsen advises and litigates in both state and

panel), OSB Committees, and the Salem Multicultural Institute (Board).

federal courts in Oregon and Washington. Mr. Larsen was listed in Oregon

He currently serves on the Uniform Trial Court Rules Committee (UTCR),

Super Lawyers in 2006 and 2011 through 2022. He has also been selected

Behavioral Health Advisory Committee (BHAC) and Case Management

multiple times by his peers for inclusion in the Best Lawyers in America

Committee. For 20 years, he coached youth basketball and soccer. Jim and

in the field of Labor and Employment Litigation, and as a Benchmark

his wife of 39 years (Sally) have four children and four grandchildren. Much

Litigation “Future Star” since 2021. After graduating from law school cum

of their time is spent around family including camping, beach visits, and

laude, Mr. Larsen served as law clerk to the Honorable Robert E. Jones of

outdoor activities.

the United States District Court for the District of Oregon.

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SASHA PETROVA Sasha is an attorney in Tonkon Torp’s Litigation Department. An experienced appellate lawyer, Sasha handles a wide range of appeals at the state and federal levels. In her litigation practice, Sasha helps clients with contract disputes, business tort litigation, and administrative proceedings. She is practiced in all aspects of litigation, including pleadings, discovery, complex motions practice, oral argument, and trial preparation. Sasha’s appellate expertise makes her a valuable member of

SEAN MCKEAN

any trial team seeking to preserve issues for appeal. Before joining Tonkon Torp, Sasha was a litigator at a national law firm for five years, focusing

Sean has been practicing law since 2020, with a focus primarily in

on complex civil litigation and appeals. Sasha also served as a Judicial

insurance defense and coverage litigation as part of Bullivant’s casualty

Law Clerk for the Hon. Chris Garrett on the Oregon Court of Appeals.

group, where he represents insurers in complex coverage disputes and

Her clerking experience gave Sasha fundamental insights into how to

liability claims. Since the Supreme Court’s Moody decision in 2023, Sean

best represent clients through the appellate process. Sasha maintains an

has represented many insurers in disputes involving extracontractual and

active pro bono practice, currently centered on promoting animal rights

negligence claims in contexts as varied as PIP, UIM, health insurance, and

and raising awareness about domestic violence issues. She serves on the

property claims. In doing so, Sean has been on the forefront of pushing

Board of Directors for the Raphael House of Portland, a domestic violence

the limits of Moody in regard to issues like emotional distress injuries,

prevention program and shelter. Outside of work, Sasha enjoys exploring

the availability of Moody to non-human claimants, and how much of the

Oregon’s wineries, finding new restaurants, and spending time with her

“physical impact rule” has survived in Moody’s wake.

family and pets.

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JUDGE JENNA PLANK Judge Plank was appointed to the Multnomah County Circuit Court bench in 2021. A member of the Oregon State Bar since 2005, she previously practiced criminal law, handling all manner of criminal actions to include murder, felony assault, sexual assault, child abuse, domestic violence and juvenile delinquency and dependency petitions. Judge Plank is a graduate of the University of Portland and Lewis and Clark Law School. She is an elected member of the Oregon State Bar’s House of Delegates and was previously appointed to the Oregon State Bar’s Criminal Jury Instructions Committee. She has served on various UTCR workgroups, and is a contributing author to the Oregon State Bar Books Chapter 23 2021 Revisions, and the Oregon Women’s Lawyers AdvanceSheet publication. She is assigned to Multnomah County Circuit Court’s general trial docket, presiding over both civil and criminal matters.

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IVÁN RESENDIZ-GUTIERREZ discrimination, civil rights, fair housing, and public accommodations Iván Resendiz Gutierrez is a litigation attorney serving the appellate,

laws. When pre-litigation resolution is unsuccessful or not possible, Iván

employment, and litigation needs of public and private clients, with an

defends and represents public and private organizations on a wide range

emphasis on supporting energy companies and K-12 and higher education

of employment and commercial matters before federal and state trial and

institutions. As a member of the firm’s appellate, litigation, and education

appellate courts and administrative agencies, including appeals, breaches

and employment departments, Iván helps achieve clients’ goals throughout

of contract, class actions, employee benefits litigation, employment

the judicial system, from state trial courts all the way to the U.S. Supreme

discrimination, harassment, retaliation, and wrongful termination (as well as

Court. He represents organizations in some of their most significant matters,

other tort claims), and negligence. A past president of the Oregon Hispanic

where millions and the organization can be on the line, joining trial teams as

Bar Association (the youngest in its history), Iván has been recognized by

embedded appellate counsel and examining dense trial records to find the

national, state, and local organizations, including receiving the Hispanic

best arguments for appeal. Iván has taken a lead role in several of the firm’s

National Bar Association’s “Top Lawyers Under 40” Award, the University

most high-profile and successful matters, including handling oral argument

of Oregon School of Law’s “Outstanding Young Alumni Award,” and the

to the U.S. Court of Appeals for the Ninth Circuit and the Oregon Court

Oregon State Bar President’s Diversity & Inclusion Award; being named to the

of Appeals. In addition to his appellate practice, Iván engages in a broad

Portland Business Journal’s Forty Under 40 list in 2021, being listed in Oregon

litigation and counseling practice, with a particular emphasis on complex

Super Lawyers—Rising Stars; and listed in Best Lawyers: Ones to Watch

challenges involving governments, commercial issues, and compliance

(since its first edition). After law school, Iván clerked for the Honorable Lynn

with federal, state (Oregon, Montana, and Washington), and local disability,

R. Nakamoto at the Oregon Supreme Court and the Oregon Court Appeals.

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NATHAN R. MORALES investigations, notifications, and public announcements; and regulatory Nathan Morales is an experienced trial and appellate attorney. In his career,

reporting. And he represents businesses and individuals in privacy and

Nathan has navigated a variety of complex business disputes on behalf of

data security disputes and litigation, particularly in putative class actions.

clients, focusing primarily on privacy and data security, class-action defense,

Because of his non-traditional pathway to law, Nathan is uniquely suited to

and policyholder-side insurance litigation. As an appellate attorney, Nathan

understand and assist his client’s needs. As a former professional television

successfully has briefed and argued in the Oregon Court of Appeals, Oregon

and stage actor, Nathan fully understands the importance of an audience

Supreme Court, and Ninth Circuit Court of Appeals. As a member of both

and tailoring a message to that audience—a skill he regularly uses in his

the firm’s global Privacy and Data Security practice and Litigation group,

trial practice. Before law school, Nathan also worked in the apparel and

Nathan counsels and advises a wide range of clients on an array of privacy-

construction-design industries, including ownership and management

related matters, including compliance with GDPR, CalCPA, and other federal

of a successful apparel company with accounts in small boutiques and

and state regulatory regimes, assessment and management of third-party

national retailers. Those experiences have provided Nathan with the ability

risk, and development of internal programs, policies, and procedures. He

to effortlessly strategize and employ a legal solution that also meets the

regularly advises and represents clients in connection with data breach and

business needs of his clients.

security incident planning; preparation and response, including internal

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SARAH TUTHILL-KVETON Sarah Tuthill-Kveton is a partner at Chock

JUDGE ODEN-ORR

Barhoum and is a dedicated and experienced litigator, advocating for her clients across

Melvin Oden-Orr is a Multnomah County Circuit Court Judge, a court of

a diverse spectrum of legal matters. Her

general jurisdiction in Oregon. Judge Oden-Orr was appointed by Oregon

extensive defense experience encompasses motor vehicle collisions,

Governor Kate Brown to the Multnomah County Circuit Court effective

premises liability claims, professional malpractice, and all things personal

January 1, 2018.

injury. Notably, Sarah represents independent contractors in the evolving

Judge Oden-Orr previously served as the Chief Hearings Officer for the city

gig economy and various retailers across the northwest. Licensed to

of Portland, where he had worked from July 2016 until his appointment to

practice in Washington, Oregon, and Idaho, she brings a comprehensive

the Circuit Court. In that role, he adjudicated land use disputes, city code

understanding of the legal landscapes in this part of the country.

violations, and other municipal matters. From 2005 to 2016, Oden-Orr

Sarah commenced her legal journey as a public defender, where she

operated a law practice representing clients in civil litigation, mediation,

honed her courtroom skills and developed a profound commitment

arbitration and business transactions. From 2000 to 2004, he served as an

to justice. Transitioning to civil defense in 2013, she adeptly navigates

Assistant General Counsel at TriMet. He served as a volunteer mediator

high-conflict litigation, striving to provide the most effective and

with the Multnomah County Small Claims Mediation Program from 2009

efficient defense strategies for her clients. Sarah has a commanding

to 2016.

yet approachable courtroom presence to assist in achieving favorable

Judge Oden-Orr began his career as an associate attorney at a

outcomes for her clients.

predecessor to the firm Lane Powell LLP. He attended law school at the

Sarah operates at the crossroads of traditional legal practice and

University of Illinois at Urbana-Champaign after receiving his B.A. degree

cutting-edge innovation. As a leader in legal technology, she pioneers

in political science at UCLA. He is the founding chair of the Oregon State

the integration of AI to enhance efficiency and deliver high-quality client

Bar’s Diversity Section and has served on a number of other boards and

advocacy.

committees, including with the City Club of Portland, Youth Employment

Sarah spends most of her free time with her favorite people - her family.

Institute, Micro Enterprise Services of Oregon, and the State Construction

Outside of work and family, you can catch her at the gym, maintaining the

Contractors Board, to name a few.

discipline and the resilience that is evident in every aspect of her life.

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SUPREME COURT UPDATE Presented By: Thomas Dupree

Friday, June 13, 2025 8:00am – 9:00am 19

U.S. Supreme Court Round-Up Vol. 17, No. 2

October Term 2024 The Supreme Court Round-Up previews upcoming cases, summarizes opinions, and tracks the actions of the Office of the Solicitor General. Each entry contains a description of the case, as well as a substantive analysis of the Court’s actions.

Cases Scheduled For Oral Argument OCTOBER CALENDAR 1. Williams v. Washington, No. 23-191 (Ala., 387 So. 3d 138; cert. granted Jan. 12, 2024; argued Oct. 7, 2024). The Question Presented is: Whether exhaustion of state administrative remedies is required to bring claims under 42 U.S.C. § 1983 in state court.

2. Royal Canin U.S.A., Inc. v. Wullschleger, No. 23-677 (8th Cir., 75 F.4th 918; cert. granted Apr. 29, 2024; argued Oct. 7, 2024). The Questions Presented are: (1) Whether a post-removal amendment of a complaint can defeat federal question subject matter jurisdiction; and (2) Whether such a post-removal amendment of a complaint precludes a district court from exercising supplemental jurisdiction over the plaintiff’s remaining state-law claims pursuant to 28 U.S.C. § 1367.

Decided January 15, 2025 (604 U.S. __). Eighth Circuit/Affirmed. Justice Kagan delivered the opinion for a unanimous Court. Anastasia Wullschleger’s complaint in state court originally asserted claims under both federal and state law, so Royal Canin removed the case to federal court. But when Wullschleger later amended her complaint to delete the federal claims, the Eighth Circuit ordered the case remanded back to state court because there was no longer any basis to keep it in federal court.

For cases first filed in federal court, jurisdiction has long been assessed throughout the litigation, so if an amendment eliminates federal claims, the court can no longer exercise supplemental jurisdiction over the remaining state-law claims. But because of the opportunity for gamesmanship, and based on dicta in Supreme Court opinions, in removed cases all other circuits had held that jurisdiction should be assessed at U.S. Supreme Court Round-Up

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the time of removal without regard to subsequent amendments. The Court sided with the Eighth Circuit. When a plaintiff “eliminates the federal-law claims that enabled removal, leaving only state-law claims behind, the court’s power to decide the dispute dissolves.” 28 U.S.C. § 1367(a) vests federal courts that have jurisdiction over federal claims with supplemental jurisdiction to hear closely related state claims.

Because § 1367(a) “draws no distinction” between cases originally filed in federal court and those removed to federal court, the Court held that the same rule must apply for both originally filed and removed cases. That conclusion, the Court reasoned, was consistent with both congressional and judicial practice recognizing that amendments to complaints “hav[e] the potential to alter jurisdiction.” The Court dismissed as dictum the language in its prior cases that seemed to favor the alternative approach. When Wullschleger deleted all federal claims from her complaint, she “deprived” the district court of original jurisdiction and thereby “dissolved” supplemental jurisdiction over the state claims, requiring a remand to state court.

3. Bondi v. VanDerStok, No. 23-852 (5th Cir., 86 F.4th 179; cert. granted Apr. 22, 2024; argued Oct. 8, 2024). The Questions Presented are: (1) Whether “a weapon parts kit that is designed to or may readily be completed, assembled, restored, or otherwise converted to expel a projectile by the action of an explosive,” 27 C.F.R. § 478.11, is a “firearm” regulated by the Gun Control Act of 1968; and (2) Whether “a partially complete, disassembled, or nonfunctional frame or receiver” that is “designed to or may readily be completed, assembled, restored, or otherwise converted to function as a frame or receiver,” id. § 478.12(c), is a “frame or receiver” regulated by the Act. 4. Lackey v. Stinnie, No. 23-621 (4th Cir., 77 F.4th 200; cert. granted Apr. 22, 2024; argued Oct. 8, 2024). The Questions Presented are: (1) Whether a party must obtain a ruling that conclusively decides the merits in its favor, as opposed to merely predicting a likelihood of later success, to prevail on the merits under 42 U.S.C. § 1988; and (2) Whether a party must obtain an enduring change in the parties’ legal relationship from a judicial act, as opposed to a non-judicial event that moots the case, to prevail under § 1988.

5. Glossip v. Oklahoma, No. 22-7466 (Okla. Crim. App., 529 P.3d 218; cert. granted Jan. 22, 2024; argued Oct. 9, 2024). The Questions Presented are: (1) Whether the State’s suppression of the key prosecution witness’s admission he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate due process; (2) Whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) Whether due process requires reversal, where a capital conviction is so infected with errors that the State no longer seeks to defend it; and (4) Whether the Oklahoma Court of Criminal Appeals’ holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.

6. Medical Marijuana, Inc. v. Horn, No. 23-365 (2d Cir., 80 F.4th 130; cert. granted Apr. 29, 2024; argued Oct. 15, 2024). The Question Presented is: Whether economic harms resulting from personal injuries are injuries to “business or property by reason of” the defendant’s acts for purposes of civil RICO. 2

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7. Bouarfa v. Mayorkas, No. 23-583 (11th Cir., 75 F.4th 1157; cert. granted Apr. 29, 2024; argued Oct. 15, 2024). The Question Presented is: Whether a visa petitioner may obtain judicial review when an approved petition is revoked on the basis of nondiscretionary criteria.

Decided Dec. 10, 2024 (604 U.S. __). Eleventh Circuit/Affirmed. Justice Jackson delivered the opinion of the unanimous Court. Federal law bars judicial review of immigration “decision[s] . . . in the discretion of the Attorney General or the Secretary” of Homeland Security. 8 U.S.C. § 1252(a)(2)(B)(ii). By statute, U.S. Citizenship and Immigration Services (“USCIS”) must deny immigrant visa petitions filed by American citizens on behalf of their noncitizen spouses if the noncitizen previously sought to secure an immigration benefit through a sham marriage. Id. § 1154(c). Once a petition is approved, however, USCIS “may” for “good and sufficient cause, revoke the approval of any petition.” Id. § 1155. Amina Bouarfa, an American citizen, filed an immigrant visa petition on behalf of her non-citizen husband, Ala’a Hamayel. After initially approving Bouarfa’s petition, USCIS uncovered evidence that Hamayel had previously sought a visa through a sham marriage and exercised its discretion under § 1155 to revoke the petition. After the Board of Immigration Appeals affirmed USCIS’s sham-marriage determination, Bouarfa sought review in federal court under the Administrative Procedure Act. The Eleventh Circuit affirmed the district court’s dismissal, concluding that § 1252(a)(2)(B)(ii) stripped judicial review of the agency’s exercise of discretionary authority under § 1155. Resolving a circuit split, the Court affirmed the Eleventh Circuit and held that federal courts lack jurisdiction to review the revocation of a visa petition. The Court explained that §1155—providing that the agency “may” for “good and sufficient cause, revoke the approval of any [visa] petition”—was a “quintessential grant of discretion.” The Court rejected Bouarfa’s arguments that the agency practice of revoking approved petitions after making a sham-marriage determination limited the agency’s discretion.

8. Bufkin v. McDonough, No. 23-713 (Fed. Cir., 75 F.4th 1368; cert. granted Apr. 29, 2024; argued Oct. 16, 2024). The Question Presented is: Whether the Veterans Court must ensure that the benefit-of-the-doubt rule was properly applied during the claims process in order to satisfy 38 U.S.C. § 7261(b)(1), which directs the Veterans Court to “take due account” of the VA’s application of that rule.

9. San Francisco v. EPA, No. 23-753 (9th Cir., 75 F.4th 1074; cert. granted May 28,

2024; argued Oct. 16, 2024). The Question Presented is: Whether the Clean Water Act allows EPA (or an authorized state) to impose generic prohibitions in National Pollutant Discharge Elimination System permits that subject permitholders to enforcement for exceedances of water quality standards without identifying specific limits to which their discharges must conform.

NOVEMBER CALENDAR 10. Wisconsin Bell, Inc. v. United States ex rel. Heath, No. 23-1127 (7th Cir., 92 F.4th 654; cert. granted June 17, 2024; argued Nov. 4, 2024). The Question Presented is: Whether reimbursement requests submitted to the E-rate program established by the Federal Communications Commission to provide discounted telecommunications services to schools and libraries—but administered by a private, nonprofit 3

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corporation and funded entirely by contributions from private telecommunications carriers—are “claims” under the False Claims Act. 11. Advocate Christ Medical Center v. Becerra, No. 23-715 (D.C. Cir., 80 F.4th 346; cert. granted June 10, 2024; argued Nov. 5, 2024). The Question Presented is: Whether the phrase “entitled . . . to benefits,” used twice in the same sentence of the Medicare Act, means the same thing for Medicare part A and SSI, such that it includes all who meet basic program eligibility criteria, whether or not benefits are actually received.

12. E.M.D. Sales, Inc. v. Carrera, No. 23-217 (4th Cir., 75 F.4th 345; CVSG Dec. 11, 2023; summary reversal recommended May 7, 2024; cert. granted June 17, 2024; argued Nov. 5, 2024). The Question Presented is: Whether the burden of proof that employers must satisfy to demonstrate the applicability of an FLSA exemption is a mere preponderance of the evidence, as six circuits hold, or clear and convincing evidence, as the Fourth Circuit holds.

Decided Jan. 15, 2025 (604 U.S. __). Fourth Circuit/Reversed. Justice Kavanaugh delivered the opinion for a unanimous Court. The Fair Labor Standards Act of 1938 requires employers to pay their employees a minimum wage and overtime compensation, but also exempts many categories of employees from those requirements. The Act places the burden on the employer to show that an exemption applies, but the circuits disagreed about the standard the employer must meet in making that showing. Six circuits applied the default standard for civil cases (preponderance of the evidence), whereas the Fourth Circuit alone required clear and convincing evidence that an exemption applies. The Supreme Court rejected the Fourth Circuit’s approach. As it explained, the preponderance standard is the default standard of proof in American civil litigation and thus is the standard Congress presumptively adopts in civil-litigation statutes. There are three main exceptions to that presumption: (1) if the statute itself establishes a different standard, either through express language or by employing well-known terms that connote a higher standard; (2) if the Constitution requires a higher standard (as with the First Amendment’s actual-malice doctrine); or (3) in “uncommon cases” where the government seeks to take “unusual coercive action” that is “more dramatic” than “conventional relief,” such as denaturalizing a U.S. citizen. The Court concluded that none of those three exceptions applies to the Fair Labor Standards Act. It likewise rejected the employees’ policy arguments for a heightened standard. Even though worker protections implicate weighty interests, the Court has applied the preponderance standard in statutes protecting other weighty interests, like Title VII. FLSA rights are non-waivable, but the Court has applied the preponderance standard to other non-waivable rights under the National Labor Relations Act. The Court remanded for the lower courts to assess whether the employer had met the preponderance standard. Justice Gorsuch, in a brief concurrence, emphasized that diverging from the preponderance standard for policy reasons would inappropriately choose sides in a policy debate, rather than declare the law.

13. Facebook, Inc. v. Amalgamated Bank, No. 23-980 (9th Cir., 87 F.4th 934; cert. granted June 10, 2024; argued Nov. 6, 2024; dismissed as improvidently granted Nov. 22, 2024). The Question Presented is: Whether risk disclosures are false or misleading when they do not disclose that a risk has materialized in the past, 4

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even if that past event presents no known risk of ongoing or future business harm.

14. Velazquez v. Bondi, No. 23-929 (10th Cir., 88 F.4th 1301; cert. granted July 2, 2024; argued Nov. 12, 2024). The Question Presented is: Whether, when a noncitizen’s voluntary-departure period ends on a weekend or public holiday, is a motion to reopen filed the next business day sufficient to avoid the penalties for failure to depart.

15. Delligatti v. United States, No. 23-825 (2d Cir., 83 F.4th 113; cert. granted June 3, 2024; argued Nov. 12, 2024). The Question Presented is: Whether attempted murder in aid of racketeering, 18 U.S.C. § 1959(a)(5), a crime that requires proof of bodily injury or death, but can be committed by failing to take action, has as an element the use, attempted use, or threatened use of physical force.

16. NVIDIA Corp. v. E. Ohman J:or Fonder AB, No. 23-970 (9th Cir., 81 F.4th 918; cert. granted June 17, 2024; argued Nov. 13, 2024; dismissed as improvidently granted Dec. 11, 2024). The Questions Presented are: (1) Whether plaintiffs seeking to allege scienter under the Private Securities Litigation Reform Act based on allegations about internal company documents must plead with particularity the contents of those documents; and (2) Whether plaintiffs can satisfy the Act’s falsity requirement by relying on an expert opinion to substitute for particularized allegations of fact.

DECEMBER CALENDAR 17. FDA v. Wages and White Lion Investments, L.L.C., No. 23-1038 (5th Cir., 90 F.4th 357; cert. granted July 2, 2024; argued Dec. 2, 2024). The Question Presented is: Whether the court of appeals erred in setting aside FDA’s denial of applications for authorization to market new e-cigarette products as arbitrary and capricious.

18. United States v. Miller, No. 23-824 (10th Cir., 71 F.4th 1247; cert. granted June 24, 2024; argued Dec. 2, 2024). The Question Presented is: Whether a bankruptcy trustee may avoid a debtor’s tax payment to the United States under 11 U.S.C. § 544(b)(1)—which permits a trustee to avoid any pre-petition transfer of the debtor’s property that would be voidable “under applicable law” outside bankruptcy—when no actual creditor could have obtained relief under the applicable state fraudulenttransfer law outside of bankruptcy.

19. Hungary v. Simon, No. 23-867 (D.C. Cir., 77 F.4th 1077; cert. granted June 24, 2024; argued Dec. 3, 2024). The Questions Presented are: (1) Whether historical commingling of assets suffices to establish that proceeds of seized property have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign Immunities Act; (2) Whether a plaintiff must make out a valid claim that an exception to the Foreign Sovereign Immunities Act applies at the pleading stage, rather than merely raising a plausible inference; and (3) Whether a sovereign defendant bears the burden of producing evidence to affirmatively disprove that the proceeds of property taken in violation of international law have a commercial nexus with the United States under the expropriation exception to the Foreign Sovereign 5

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Immunities Act. 20. United States v. Skrmetti, No. 23-477 (6th Cir., 83 F.4th 460; cert. granted June 24, 2024; argued Dec. 4, 2024). The Question Presented is: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.

21. Kousisis v. United States, No. 23-909 (3d Cir., 82 F.4th 230; cert. granted June 17, 2024; argued Dec. 9, 2024). The Questions Presented are: (1) Whether deception to induce a commercial exchange can constitute mail or wire fraud, even if inflicting economic harm on the alleged victim was not the object of the scheme; (2) Whether a sovereign’s statutory, regulatory, or policy interest is a property interest when compliance is a material term of payment for goods or services; and (3) Whether all contract rights are “property.”

22. Feliciano v. Department of Transportation, No. 23-861 (Fed. Cir., 2023 WL 3449138; cert. granted June 24, 2024; argued Dec. 9, 2024). The Question Presented is: Whether a federal civilian employee called or ordered to active duty under a provision of law during a national emergency is entitled to differential pay even if the duty is not directly connected to the national emergency.

23. Seven County Infrastructure Coalition v. Eagle County, No. 23-975 (D.C. Cir., 82 F.4th 1152; cert. granted June 24, 2024; argued Dec. 10, 2024). The Question Presented is: Whether the National Environmental Policy Act requires an agency to study environmental impacts beyond the proximate effects of the action over which the agency has regulatory authority.

24. Dewberry Group, Inc. v. Dewberry Engineers Inc., No. 23-900 (4th Cir., 77 F.4th 265; cert. granted June 24, 2024; argued Dec. 11, 2024). The Question Presented is: Whether an award of the “defendant’s profits” under the Lanham Act, 15 U.S.C. § 1117(a), can include an order for the defendant to disgorge the distinct profits of legally separate non-party corporate affiliates.

JANUARY CALENDAR 25. TikTok, Inc. v. Garland, No. 24-656 (D.C. Cir., 122 F.4th 930; cert. granted Dec. 18, 2024; argued Jan. 10, 2025), consolidated with Firebaugh v. Garland, No. 24-657 (D.C. Cir., 122 F.4th 930; cert. granted Dec. 18, 2024; argued Jan. 10, 2025). The Question Presented is: Whether the Protecting Americans from Foreign Adversary Controlled Applications Act, as applied to petitioners, violates the First Amendment.

Decided Jan. 17, 2025 (604 U.S. __). D.C. Circuit/Affirmed. Per curiam opinion (Sotomayor, J., concurring in part and concurring in judgment) (Gorsuch, J., concurring in judgment). The Protecting Americans from Foreign Adversary Controlled Applications Act prohibits U.S. companies from providing services to 6

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distribute, maintain, or update the social media platform TikTok unless the app’s U.S. operations are severed from Chinese control. TikTok Inc., the American company that runs TikTok in the United States, and ByteDance Ltd., TikTok Inc.’s Chinesebased ultimate parent company, claimed that the law violates their First Amendment rights, as did a group of TikTok users and creators. The Court held that the Act did not violate any of the challengers’ First Amendment rights. It assumed without deciding that the Act was a “regulation of non-expressive activity that disproportionately burdens those engaged in expressive activity,” triggering First Amendment review, though the Court noted that it had not “articulated a clear framework” for this area. The Court held that the Act was “facially content-neutral” and “justified by a content-neutral rationale” and thus subject to intermediate scrutiny.

The Act focused on TikTok “due to a foreign adversary’s control over the platform” and not based on the content of any speech on TikTok, and the government provided a content-neutral justification for the Act—preventing China from collecting data from U.S. TikTok users. The Court then concluded that the Act passed intermediate scrutiny. The Act’s aim of ensuring that China does not “leverag[e] its control over ByteDance Ltd. to capture the personal data” of “tens of millions of U.S. TikTok users” was indisputably an important government interest. And the Act was “sufficiently tailored” to address that interest, since it cut China off from access to U.S. TikTok users’ data while still allowing TikTok to operate in the United States if ByteDance divested from it. The Court did not need to evaluate TikTok’s proposed regulatory alternatives given the “latitude” afforded the “Government to design regulatory solutions to address content-neutral interests.” Because the data collection rationale sufficed to sustain the Act, and the record showed that Congress “would have passed” the Act based on that “justification alone,” the Court declined to decide whether the other rationale for the Act—preventing a foreign adversary from using its control over TikTok’s recommendation algorithm to “alter the content on the platform in an undetectable manner”—would pass muster. Justice Sotomayor would have held, rather than assumed, that the Act implicates the First Amendment.

Justice Gorsuch opined that even under strict scrutiny, the Act was narrowly tailored to advance a compelling interest of preventing China from collecting Americans’ personal information.

26. Hewitt v. United States, No. 23-1002 (5th Cir., 92 F.4th 304; cert. granted July 2, 2024; argued Jan. 13, 2025), consolidated with Duffey v. United States, No. 231150 (5th Cir., 92 F.4th 304; cert. granted July 2, 2024; argued Jan. 13, 2025).

The Question Presented is: Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the First Step Act’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the First Step Act’s enactment.

27. Stanley v. City of Sanford, No. 23-997 (11th Cir., 83 F.4th 1333; cert. granted June 24, 2024; argued Jan. 13, 2025). The Question Presented is: Whether, under the Americans with Disabilities Act, a former employee—who was qualified to perform her job and who earned post-employment benefits while employed—loses her right to sue over discrimination with respect to those benefits solely because she no longer holds her job.

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28. Thompson v. United States, No. 23-1095 (7th Cir., 89 F.4th 1010; cert. granted Oct. 4, 2024; argued Jan. 14, 2025). The Question Presented is: Whether 18 U.S.C. § 1014, which prohibits making a “false statement” for the purpose of influencing certain financial institutions and federal agencies, also prohibits making a statement that is misleading but not false.

29. Waetzig v. Halliburton Energy Services, Inc., No. 23-971 (10th Cir., 82 F.4th 918; cert. granted Oct. 4, 2024; argued Jan. 14, 2025). The Question Presented is: Whether a Rule 41 voluntary dismissal without prejudice is a “final judgment, order, or proceeding” under Rule 60(b).

30. Free Speech Coalition, Inc. v. Paxton, No. 23-1122 (5th Cir., 95 F.4th 263; cert. granted July 2, 2024; argued Jan. 15, 2025). The Question Presented is: Whether the court of appeals erred as a matter of law in applying rational-basis review to a law burdening adults’ access to sexual materials, instead of strict scrutiny.

31. FDA v. R.J. Reynolds Vapor Co., No. 23-1187 (5th Cir., 2024 WL 1945307; cert. granted Oct. 4, 2024; argued Jan. 21, 2025). The Question Presented is: Whether under the statute permitting review of the FDA’s denial of authorization for a new tobacco product, 21 U.S.C. § 387l(a)(1), a manufacturer may file a petition for review in a circuit (other than the D.C. Circuit) where it neither resides nor has its principal place of business, if the petition is joined by a seller of the manufacturer’s products that is located within that circuit.

32. McLaughlin Chiropractic Associates, Inc. v. McKesson Corporation, No. 231226 (9th Cir., 2023 WL 7015279; cert. granted Oct. 4, 2024; argued Jan. 21, 2025). The Question Presented is: Whether the Hobbs Act, 28 U.S.C. § 2342(1), requires a district court to accept the FCC’s legal interpretation of the Telephone Consumer Protection Act. 33. Barnes v. Felix, No. 23-1239 (5th Cir., 91 F.4th 393; cert. granted Oct. 4, 2024; argued Jan. 22, 2025). The Question Presented is: Whether courts should look only to “the moment of the threat” when evaluating an excessive force claim under the Fourth Amendment.

34. Cunningham v. Cornell University, No. 23-1007 (2d Cir., 86 F.4th 961; cert. granted Oct. 4, 2024; argued Jan. 22, 2025). The Question Presented is: Whether a plaintiff can state an ERISA claim by alleging that a plan fiduciary engaged in a transaction constituting a furnishing of goods, services, or facilities between the plan and a party in interest, as proscribed by 29 U.S.C. § 1106(a)(1)(C), or whether a plaintiff must plead and prove additional elements and facts not contained in the provision’s text.

FEBRUARY CALENDAR 35. Gutierrez v. Saenz, No. 23-7809 (5th Cir., 93 F.4th 267; cert. granted Oct. 4, 2024; argument on Feb. 24, 2025). The Question Presented is: Whether Article III standing requires a particularized determination that a specific state official will redress the plaintiff’s injury by following a favorable declaratory judgment.

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36. Esteras v. United States, No. 23-7483 (6th Cir., 88 F.4th 1163; cert. granted Oct. 21, 2024; argument on Feb. 25, 2025). The Question Presented is: Whether a district may may rely on the factors set forth at 18 U.S.C. § 3553(a)(2)(A)—the need for the sentence to reflect the seriousness of the offense, promote respect for the law, and provide just punishment for the offense—when revoking supervised release, even though Congress excluded those factors from the supervised-release statute’s list of factors, 18 U.S.C. § 3583(e).

37. Perttu v. Richards, No. 23-1324 (6th Cir., 96 F.4th 911; cert. granted Oct. 4, 2024; argument on Feb. 25, 2025). The Question Presented is: Whether, under the Prison Litigation Reform Act, prisoners have a right to a jury trial concerning their exhaustion of administrative remedies when disputed facts regarding exhaustion are intertwined with the underlying merits of their claim.

38. Ames v. Ohio Department of Youth Services, No. 23-1039 (6th Cir., 87 F.4th 822; cert. granted Oct. 4, 2024; argument on Feb. 26, 2025). The Question Presented is: Whether, in addition to pleading the other elements of Title VII, a majority-group plaintiff must show “background circumstances to support the suspicion that the defendant is that unusual employer who discriminates against the majority.”

39. CC/Devas (Mauritius) Limited v. Antrix Corp. Ltd., No. 23-1201 (9th Cir., 2023 WL 4884882; cert. granted Oct. 4, 2024; argument on Mar. 3, 2025), consolidated with Devas Multimedia Private Limited v. Antrix Corp. Ltd., No. 24-17 (9th Cir., 2024 WL 1945307; cert. granted Oct. 4, 2024; argument on Mar. 3, 2025). The Question Presented is: Whether plaintiffs must prove minimum contacts before federal courts may assert personal jurisdiction over foreign states sued under the Foreign Sovereign Immunities Act. 40. BLOM Bank SAL v. Honickman, No. 23-1259 (2d Cir., 2024 WL 852265; cert. granted Oct. 4, 2024; argument on Mar. 3, 2025). The Question Presented is: Whether Rule 60(b)(6)’s stringent standard applies to a post-judgment request to vacate for the purpose of filing an amended complaint.

41. Smith & Wesson Brands, Inc. v. Estados Unidos Mexicanos, No. 23-1141 (1st Cir., 91 F.4th 511; cert. granted Oct. 4, 2024; argument on Mar. 4, 2025). The Questions Presented are: (1) Whether the production and sale of firearms in the United States is the “proximate cause” of alleged injuries to the Mexican government stemming from violence committed by drug cartels in Mexico; and (2) Whether the production and sale of firearms in the United States amounts to “aiding and abetting” illegal firearms trafficking because firearms companies allegedly know that some of their products are unlawfully trafficked.

42. Nuclear Regulatory Commission v. Texas, No. 23-1300 (5th Cir., 78 F.4th 827; cert. granted Oct. 4, 2024; argument on Mar. 5, 2025), consolidated with Interim Storage Partners, LLC v. Texas, No. 23-1312 (5th Cir., 78 F.4th 827; cert. granted Oct. 4, 2024; argument on Mar. 5, 2025). The Questions Presented are: (1) Whether the Hobbs Act, 28 U.S.C. § 2341 et seq., which authorizes a “party aggrieved” by an agency’s “final order” to petition for review in a court of appeals, 28 U.S.C. § 2344, allows nonparties to obtain review of claims asserting that an agency order exceeds the agency’s statutory authority; and (2) Whether the Atomic Energy 9

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Act of 1954, 42 U.S.C. § 2011 et seq., and the Nuclear Waste Policy Act of 1982, 42 U.S.C. § 10101 et seq., permit the Nuclear Regulatory Commission to license private entities to temporarily store spent nuclear fuel away from the nuclear-reactor sites where the spent fuel was generated.

MARCH CALENDAR 43. Louisiana v. Callais, No. 24-109 (W.D. La., 732 F. Supp. 3d 574; probable jurisdiction noted Nov. 4, 2024; argument on Mar. 24, 2025), consolidated with Robinson v. Callais, No. 24-109 (W.D. La., 732 F. Supp. 3d 574; probable jurisdiction noted Nov. 4, 2024; argument on Mar. 24, 2025). The Question Presented is: Whether the three-judge district court erred in concluding that Louisiana Senate Bill 8, which created a second majority-minority congressional district in response to previous Voting Rights Act litigation, was an unconstitutional racial gerrymander.

44. Riley v. Bondi, No. 23-1270 (4th Cir., 2024 WL 1826979; cert. granted Nov. 4, 2024; argument on Mar. 24, 2025). The Questions Presented are: (1) Whether the 30-day deadline in 8 U.S.C. § 1252(b)(1) for filing a petition for review of an order of removal is jurisdictional; and (2) Whether a noncitizen satisfies the deadline in Section 1252(b)(1) by filing a petition for review challenging an agency order denying withholding of removal or protection under the Convention Against Torture within 30 days of the issuance of that order.

45. EPA v. Calumet Shreveport Refining, LLC, No. 23-1229 (5th Cir., 86 F.4th 1121; cert. granted Oct. 21, 2024; argument on Mar. 25, 2025). The Question Presented is: Whether venue for challenges by small refineries to the EPA’s denial of exemptions from the Clean Air Act’s Renewable Fuel Standard program lies exclusively in the D.C. Circuit because the agency’s denial actions are “nationally applicable” or, alternatively, are “based on a determination of nationwide scope or effect.” 42 U.S.C. § 7607(b)(1).

46. Oklahoma v. EPA, No. 23-1067 (10th Cir., 93 F.4th 1262; cert. granted Oct. 21, 2024; argument on Mar. 25, 2025), consolidated with PacifiCorp v. EPA, No. 231068 (10th Cir., 93 F.4th 1262; cert. granted Oct. 21, 2024; argument on Mar. 25, 2025). The Question Presented is: Whether the Environmental Protection Agency's disapproval of a State Implementation Plan may only be challenged in the D.C. Circuit under 42 U.S.C. § 7607 (b)(1) if EPA packages that disapproval with disapprovals of other States’ plans and purports to use a consistent method in evaluating the state-specific determinations in those plans.

47. FCC v. Consumers’ Research, No. 24-354 (5th Cir., 109 F.4th 743; cert. granted Nov. 22, 2024; argument on Mar. 26, 2025), consolidated with Schools, Health & Libraries Broadband Coalition v. Consumers’ Research, No. 24-422 (5th Cir., 109 F.4th 743; cert. granted Nov. 22, 2024; argument on Mar. 26, 2025). The Questions Presented are: (1) Whether Congress violated the nondelegation doctrine by authorizing the Federal Communications Commission to determine, within the limits set forth in 47 U.S.C. § 254, the amount that providers must contribute to the universal service fund; (2) Whether the Commission violated the nondelegation 10

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doctrine by using the financial projections of a private company serving as the Fund’s administrator in computing universal service contribution rates; (3) Whether the combination of Congress’s conferral of authority on the Commission and the Commission’s delegation of administrative responsibilities to the private administrator violates the nondelegation doctrine; and (4) Whether this case is moot in light of the challengers' failure to seek preliminary relief before the Fifth Circuit.

48. Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission, No. 24-154 (Wis., 3 N.W.3d 666; cert. granted Dec. 13, 2024; argument on Mar. 31, 2025). The Question Presented is: Whether a state violates the First Amendment’s Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior.

49. Rivers v. Guerrero, No. 23-1345 (5th Cir., 99 F.4th 216; cert. granted Dec. 6, 2024; argument on Mar. 31, 2025). The Question Presented is: Whether 28 U.S.C. § 2244(b)(2), which bars the filing of a “second or successive habeas corpus application,” applies (i) only to habeas filings made after a prisoner has exhausted appellate review of his first petition, (ii) to all second-in-time habeas filings after final judgment, or (iii) to some second-in-time filings, depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.

50. Fuld v. Palestine Liberation Organization, No. 24-20 (2d Cir., 82 F.4th 74; cert. granted Dec. 6, 2024; argument on Apr. 1, 2025), consolidated with United States v. Palestine Liberation Organization, No. 24-151 (2d Cir., 82 F.4th 74; cert. granted Dec. 6, 2024; argument on Apr. 1, 2025). The Question Presented is: Whether 18 U.S.C. § 2334(e)(1)—which provides that the Palestine Liberation Organization and the Palestinian Authority “shall be deemed to have consented to personal jurisdiction” in certain terrorism-related civil suits if they took specified actions in the future: (a) made payments to designees or family members of terrorists who injured or killed U.S. nationals, or (b) maintained certain premises or conducted particular activities in the United States—complies with the Due Process Clause of the Fifth Amendment.

51. Medina v. Planned Parenthood South Atlantic, No. 23-1275 (4th Cir., 95 F.4th 152; cert. granted Dec. 18, 2024; argument on Apr. 2, 2025). The Question Presented is: Whether the Medicaid Act’s any-qualified-provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider.

CASES AWAITING ARGUMENT DATE 52. Diamond Alternative Energy, LLC v. Environmental Protection Agency, No. 247 (D.C. Cir., 98 F.4th 288; cert. granted Dec. 13, 2024). The Question Presented is: Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties.

53. Becerra v. Braidwood Management, Inc., No. 24-316 (5th Cir., 104 F.4th 930; cert. granted Jan. 10, 2025). The Questions Presented are: (1) Whether the court 11

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of appeals erred in holding that the structure of the Department of Health and Human Services’ (HHS) U.S. Preventive Services Task Force violates the Appointments Clause; and (2) Whether the court of appeals erred in declining to sever the statutory provision that it found to unduly insulate the Task Force from the HHS Secretary’s supervision.

54. Department of Education v. Career Colleges and Schools of Texas, No. 24-413 (5th Cir., 98 F.4th 220; cert. granted Jan. 10, 2025). The Question Presented is: Whether the court of appeals erred in holding that the Higher Education Act of 1965 does not permit the assessment of borrower defenses to repayment before default, in administrative proceedings, or on a group basis.

55. Commissioner of Internal Revenue v. Zuch, No. 24-416, (3d Cir., 97 F.4th 81; cert. granted Jan. 10, 2025). The Question Presented is: Whether a proceeding under 26 U.S.C. § 6330 for a pre-deprivation determination about a levy proposed by the Internal Revenue Service to collect unpaid taxes becomes moot when there is no longer a live dispute over the proposed levy that gave rise to the proceeding.

56. A.J.T., By and Through Her Parents, A.T. & G.T. v. Osseo Area Schools, Independent School District No. 279, No. 24-249 (8th Cir., 96 F.4th 1058; cert. granted Jan. 17, 2025). The Question Presented is: Whether the Americans with Disabilities Act and Rehabilitation Act require children with disabilities to satisfy a uniquely stringent “bad faith or gross misjudgment” standard when seeking relief for discrimination relating to their education.

57. Parrish v. United States, No. 24-275 (4th Cir., 74 F.4th 160; cert. granted Jan. 17, 2025). The Question Presented is: Whether a litigant who files a notice of appeal after the ordinary appeal period expires must file a second, duplicative notice after the appeal period is reopened.

58. Mahmoud v. Taylor, No. 24-297 (4th Cir., 102 F.4th 191; cert. granted Jan. 17, 2025). The Question Presented is: Whether public schools burden parents’ religious exercise when they compel elementary-school children to participate in instruction on gender and sexuality against their parents’ religious convictions and without notice or opportunity to opt out.

59. Soto v. United States, No. 24-320 (Fed. Cir., 92 F.4th 1094; cert. granted Jan. 17, 2025). The Question Presented is: Whether, given the Federal Circuit’s holding that a claim for compensation under 10 U.S.C. § 1413a is a claim “involving … retired pay” under 31 U.S.C. § 3702(a)(I)(A), 10 U.S.C. §1413a provides a settlement mechanism that displaces the default procedures and limitations set forth in the Barring Act. 60. Bowe v. United States, No. 24-5438 (11th Cir., 2024 WL 4038107; cert. granted Jan. 17, 2025). The Questions Presented are: (1) Whether 28 U.S.C. § 2444(b)(1) applies to a claim presented in a second or successive motion to vacate under 28 U.S.C. § 2255; and (2) Whether 28 U.S.C. § 2244(b)(3)(E) deprives this Court of certiorari jurisdiction over the grant or denial of an authorization by a court of appeals to file a second or successive motion to vacate under 28 U.S.C. § 2255.

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61. Laboratory Corporation of America Holdings v. Davis, No. 24-304 (9th Cir., 2024 WL 489288; cert. granted Jan. 24, 2025). The Question Presented is: Whether a federal court may certify a class action pursuant to Federal Rule of Civil Procedure 23(b)(3) when some members of the proposed class lack any Article III injury.

62. Oklahoma Charter School Board v. Drummond, No. 24-394 (Supreme Court of Oklahoma, 558 P.3d 1; cert. granted Jan. 24, 2025), consolidated with St. Isidore of Seville Catholic Virtual School v. Drummond, No. 24-396 (Supreme Court of Oklahoma, 558 P.3d 1; cert. granted Jan. 24, 2025). The Questions Presented are: (1) Whether the academic and pedagogical choices of a privately owned and run school constitute state action simply because it contracts with the state to offer a free educational option for interested students; and (2) Whether a state violates the Free Exercise Clause by excluding privately run religious schools from the state’s charter-school program solely because the schools are religious, or whether a state can justify such an exclusion by invoking anti-establishment interests that go further than the Establishment Clause requires. Martin v. United States, No. 24-362 (11th Cir., 2024 WL 1716235; cert. granted Jan. 27, 2025). The Questions Presented are: (1) Whether the Constitution’s Supremacy Clause bars claims under the Federal Tort Claims Act when the negligent or wrongful acts of federal employees have some nexus with furthering federal policy and can reasonably be characterized as complying with the full range of federal law; and (2) Whether the discretionary-function exception is categorically inapplicable to claims arising under the law-enforcement proviso to the intentional torts exception.

Pending Petitions with Calls For The Views of The Solicitor General (“CVSG”) 1. Landor v. Louisiana Department of Corrections & Public Safety, No. 23-1197 (5th Cir., 82 F.4th 337; CVSG Oct. 7, 2024). The Question Presented is: Whether an individual may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq.

2. M & K Employee Solutions, LLC v. Trustees of the IAM National Pension Fund, No. 23-1209 (D.C. Cir., 92 F.4th 316; CVSG Oct. 7, 2024). The Question Presented is: Whether 29 U.S.C. § 1391’s instruction to compute liability for withdrawal from an underfunded multiemployer pension plan “as of the end of the plan year” requires the plan to base the computation on the actuarial assumptions to which its actuary subscribed at the end of the year, or allows the plan to use different actuarial assumptions that were adopted after the end of the year.

3. Mulready v. Pharmaceutical Care Management Association, No. 23-1213 (10th Cir., 78 F.4th 1183; CVSG Oct. 7, 2024). The Questions Presented are: (1) Whether ERISA preempts state laws that regulate Pharmacy Benefit Managers by preventing them from cutting off rural patients’ access, steering patients to favored pharmacies, excluding pharmacies willing to accept their terms from preferred networks, and overriding State discipline of pharmacists; and (2) Whether Medicare Part D preempts state laws that limit the conditions Pharmacy benefit Managers may place 13

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on pharmacies’ participation in their preferred networks.

4. Cox Communications, Inc. v. Sony Music Entertainment, No. 24-171 (4th Cir., 93 F.4th 222; CVSG Nov. 25, 2024). The Questions Presented are: (1) Whether the Fourth Circuit erred in holding that a service provider can be held liable for “materially contributing” to copyright infringement merely because it knew that people were using certain accounts to infringe and did not terminate access, without proof that the service provider affirmatively fostered infringement or otherwise intended to promote it; and (2) Whether the Fourth Circuit erred in holding that mere knowledge of another’s direct infringement suffices to find willfulness under 17 U.S.C. § 504(c).

5. Sony Music Entertainment v. Cox Communications, Inc., No. 24-181 (4th Cir., 93 F.4th 222; CVSG Nov. 25, 2024). The Question Presented is: Whether the profit requirement of vicarious copyright infringement permits liability where the defendant expects commercial gain from the enterprise in which infringement occurs (as the First, Second, Third, Seventh, and Ninth Circuits have held), or whether the profit requirement of vicarious copyright infringement permits liability only where the defendant expects commercial gain from the act of infringement itself (as the Fourth Circuit has held).

6. Port of Tacoma v. Puget Soundkeeper Alliance, No. 24-350 (9th Cir., 104 F.4th 95; CVSG Jan. 13, 2024). The Question Presented is: Whether Section 505 of the Clean Water Act (CWA) authorizes citizens to invoke the federal courts to enforce conditions of state-issued pollutant-discharge permits adopted under state law that mandate a greater scope of coverage than required by the CWA. 7. Fiehler v. Mecklenburg, No. 23-1360 (Supreme Court of Alaska, 538 P.3d 706; CVSG Jan. 13, 2025). The Question Presented is: Whether a court has the power to disregard evidence of the location of a water boundary from a federal survey based on subsequent evidence of the body of water’s location.

8. FS Credit Opportunities Corp. v. Saba Capital Master Fund, Ltd., No. 24-345 (2d Cir., 2024 WL 3174971; CVSG Jan. 13, 2025). The Question Presented is: Whether Section 47(b) of the Investment Company Act, 15 U.S.C. § 80a-46(b), creates an implied private right of action.

9. Borochov v. Islamic Republic of Iran, No. 24-277 (D.C. Cir., 94 F.4th 1053; CVSG Jan. 13, 2025). The Question Presented is: Whether the Foreign Sovereign Immunities Act’s terrorism exception extends jurisdiction to claims arising from a foreign state’s material support for a terrorist attack that injures or disables, but does not kill, its victims.

CVSG: Petitions In Which The Solicitor General Opposed Certiorari 1. Zilka v. City of Philadelphia, No. 23-914 (Pa., 304 A.3d 1153; CVSG June 10, 2024; cert opposed Dec. 9, 2024). The Question Presented is: Whether the Commerce Clause requires states to consider a taxpayer’s burden in light of the state 14

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tax scheme as a whole when crediting a taxpayer’s out-of-state tax liability as the West Virginia and Colorado Supreme Courts have held and this Court has suggested, or permits states to credit out-of-state state and local tax liabilities as discrete tax burdens, as the Pennsylvania Supreme Court held below.

2. Sunoco LP v. City and County of Honolulu, No. 23-947 (Haw., 537 P.3d 1173; CVSG June 10, 2024; cert. opposed Dec. 10, 2024), consolidated with Shell PLC v. City and County of Honolulu, No. 23-952 (Haw., 537 P.3d 1173; CVSG June 10, 2024; cert. opposed Dec. 10, 2024). The Question Presented is: Whether federal law precludes state-law claims seeking redress for injuries allegedly caused by the effects of interstate and international greenhouse-gas emissions on the global climate.

3. Walen v. Bergum, No. 23-969 (D.N.D., 700 F. Supp. 3d 759; CVSG June 10, 2024; dismissal of appeal in part and summary affirmance in part recommended Dec. 10, 2024). The Questions Presented are: (1) Whether the district court erred by applying the incorrect legal standard when deciding that the legislature had good reasons and a strong basis to believe the subdistricts were required by the VRA; (2) Whether the district court erred by improperly weighing the evidence and granting inferences in favor of the moving party at summary judgment instead of setting the case for trial; and (3) Whether the district court erred when it found that the legislature’s attempted compliance with Section 2 of the VRA can justify racial sorting of voters into districts.

4. Alabama v. California, No. 22O158 (Original Jurisdiction; CVSG Oct. 7, 2024; leave to file bill of complaint opposed Dec. 10, 2024). The Question Presented is: Whether States may constitutionally seek to impose liability or obtain equitable relief premised on either emissions by or in nonconsenting States or the promotion, use, and/or sale of traditional energy products in or to nonconsenting States.

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Supreme Court Statistics Gibson Dunn has a longstanding, high-profile presence before the Supreme Court of the United States, appearing numerous times in the past decade in a variety of cases. Fifteen current Gibson Dunn lawyers have argued before the Supreme Court, and during the Court’s nine most recent Terms, the firm has argued a total of 23 cases, including closely watched cases with far-reaching significance in the areas of intellectual property, securities, separation of powers, and federalism. Moreover, although the grant rate for petitions for certiorari is below 1%, Gibson Dunn’s petitions have captured the Court’s attention: Gibson Dunn has persuaded the Court to grant 40 petitions for certiorari since 2006.

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© 2024 Gibson, Dunn & Crutcher LLP. All rights reserved.

For contact and other information, please visit us at gibsondunn.com.

Attorney Advertising: These materials were prepared for general informational purposes only based on information available at the time of publication and are not intended as, do not constitute, and should not be relied upon as, legal advice or a legal opinion on any specific facts or circumstances. Gibson Dunn (and its affiliates, attorneys, and employees) shall not have any liability in connection with any use of these materials. The sharing of these materials does not establish an attorney-client relationship with the recipient and should not be relied upon as an alternative for advice from qualified counsel. Please note that facts and circumstances may vary, and prior results do not guarantee a similar outcome.

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DEFENDING AGAINST DEPOSITIONS Presented By: Chad Colton & Sarah Tuthill-Kveton

Friday, June 13, 2025 9:30am – 10:30am 36

Using Depositions at Trial Chad Colton Oregon Association of Defense Counsel June 13, 2025

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Thank you!

Chad Colton ChadColton@MarkowitzHerbold.com

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A. Corporate Deposition Preparation: Initial Steps re Notice 1. Review the Notice Immediately o Look closely at the listed deposition topics.

2. Identify the Proper Witness o Contact the client to find the best person (or people) to speak on each topic.

3. Watch for Broad or Vague Topics o Example: "Risk prevention policies" – This could be anything. o Check if the topic lacks time limits or specific scope.

4. Seek Clarification from Opposing Counsel & Confer o If topics are unclear, request a meet and confer under UTCR 5.010. o Explain that you're trying to provide the most informed witness but need clarity to do so.

5. Confirm Agreements in Writing o After conferring, send a follow-up letter confirming what was discussed or agreed to about the deposition scope.

6. Send a Formal Objection / Response o Provide objections, as you would to a Request for Production and name the deponent in that document.

B. Client Preparation for the Actual Deposition 1. Understand Your Client’s Background o Know if they’ve been deposed before. o Learn their professional history, e.g., rose through the ranks or started in management. o Understand their mindset: corporate leaders have earned their spots because they are hard workers, find perfection important and are good marketers. They may lean towards the narrative that of course safety is of the utmost importance. This can solicit retile theory type responses from the deponent.

2. Reframe the "Safety First" Narrative o A business can't eliminate all risks and still function. § Example: "You can’t follow every customer with a mop" or "Tuck in hotel guests at night." o Reiterate: Safety is important, but not always the top priority—this avoids the Reptile Theory trap.

3. Know the Documents o Be aware of what policies, procedures, and training materials actually exist and make sure the deponent is aware and clear. o Avoid vague or misleading answers like “I’m sure that’s noted somewhere.”

4. Meet More Than Once o Schedule at least two prep sessions, if not more. § Use the second for follow-up questions or verifying unknown details. § Example: Confirm what material a floor is made of.

5. Coach on Communication Style

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Help them recognize that attorneys may not understand technical or industryspecific terms. o If a question doesn’t make sense, they can say so, it’s the attorney’s job to clarify. o Their role is to answer, not to teach the opposing attorney how their business works. o

C. Handling Contentious Depositions: Best Practices 1. Prepare for Difficult Situations 2. Use a Videographer o Having a video record often encourages professional behavior.

3. Have the Rules Ready o Bring a copy of relevant rules (e.g., ORCP 39, Multnomah Consensus Statement) to mark as an exhibit if needed. o Example: If opposing counsel instructs a witness not to answer, ask: “Under ORCP 39(D)(3), what is the basis for your instruction?”

(Only three bases are permitted.)

Multnomah Consensus Panel.

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4. Handle Disputes Constructively o Consider calling a break to confer if an issue arises. o You’ll need to confer anyway before filing a motion to compel, so take the opportunity. o State any legal support for your position on the record to give the other side a chance to respond or investigate.

5. Possible Outcomes of a Conferral o You may agree the question shouldn’t be answered. o You’ll preserve the conferral for a future motion to compel. o Opposing counsel may reverse course and allow the answer, either right away or later in the deposition.

6. Make a Clear Record o If no videographer is present and things get heated, note raised voices or improper conduct for the record. o This helps preserve the issue for future motion practice. o Often, simply noting bad behavior on the record will stop it.

7. Goal: Minimize Re-Depositions o Resolving issues in real time can avoid unnecessary continued or repeated depositions, benefiting everyone involved.

D. Trial Prep with Depositions: Using Technology Effectively 1. Leverage AI Page-Line Summaries o Summaries are hyperlinked to transcripts, extremely helpful at trial or in mediation. o Offered by vendors like Casemark.com o Also offered through Court Reporters: Naegeli, First Legal and Esquire. o Note: Don’t use public tools like ChatGPT for client matters, only secure, legalspecific platforms.

2. Ethical Duty to Use Technology Competently o RPC 1.1 (Competence) and RPC 1.3 (Diligence) support the use of effective tools to meet professional standards.

3. Efficiency & Cost-Savings o Reviewing 10 depositions via summaries can take 1 hour instead of several. o Cost: $25 per summary, total $250 for 10. o Helps avoid billing inefficiencies, like multiple attorneys reviewing the same transcripts. Avoids write offs.

4. Other Benefits o Excellent for getting up to speed on a case taken over from another firm or inhouse team. o Mediators can qkly access key content via hyperlinks. o Streamlines motions by helping you locate the relevant testimony fast. o Can help spot additional medical providers or records quickly.

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JUDGES TELL ALL: PRACTICAL TIPS FROM THE BENCH Presented By: Judge Beth Bagley, Judge James Edmonds,& Judge Jenna Plank

Friday, June 13, 2025 11:00am – 12:00pm 46

“Judges Tell All” OADC Conference 2025

• Judge Jenna R. Plank Multnomah County Circuit Court • Judge Beth Bagley Deschutes County Circuit Court

• Judge Jim Edmonds Marion County Circuit Court

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Evidence in the Information Age What Do Jurors Expect?

Jim Edmonds Marion County Circuit Court

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Metaphysics - before 1999

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Metaphysics after 1999 Cell phones Ring Cameras Intersection cameras Security Cameras Forest Cameras ?

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The hidden burden of proof

“Why didn’t they produce the video?”

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If video/audio is not produced at trial , is that a “failure of proof”?

Explain WHY it was not produced 52

• BUT…… What Can Be believed?

Hidden Burden of Proof # 2

SKEPTICISM

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“Fake News” 67.7 million people use ChatGPT in the US alone.

ChatGPT has 200 million weekly active users worldwide.

ChatGPT can produce fake news articles, citations, quotes, historical events, scientific research papers, and even entire fictional biographies, essentially fabricating information that appears credible but is not based on real facts, often referred to as "hallucinations" due to its tendency to make up details to fill in gaps in its knowledge.

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Washington v. Puloka, (Washigton Sup. Crt. March 2024)

• Witness in a murder case records a low resolution , blurry image on a cell phone.

• Defense hires an expert to “enhance” the video using a “machine learning” tool based on an algorithm that “corrects” the images by analysis of other videos.

• Prosecution objects based on Frye test and Washington caselaw

• HELD: evidence excluded

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Use an Expert to Verify Accuracy and Explain Why it is Accurate

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Avoid Juror Use of Technology

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• Look for all electronic information (cell, ring, etc.) explain attempts to find this information.

• Establish foundational elements for any digital evidence including verification that it is not a “fake”.

Best Practice

• Ensure that any digital players used by jurors are “sanitized” and unable to be manipulated.

• Consider “old school” evidence – photos, drawings, etc.

• Differentiate between “demonstrative” exhibits and “admitted” exhibits Martineau v. McKenzie-Willamette Medical Center, 332 Or App 473 (May 8, 2024)(explaining difference between “demonstrative” exhibits and “admitted” exhibits)

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TWO OTHER ISSUES

1. Trial Testimony and playback to the jury

2. Perpetuation testimnony 59

During deliberations, can the Court playback testimony if requested by a juror?

“While such requests should not be encouraged, when a jury requests that testimony be repeated the decision on that request lies within the discretion of the trial court.

Further, if the court in the exercise of its discretion decides that a portion of the evidence should be read to the jury in response to its request, it is a proper exercise of discretion ‘* * * to direct the reading also of other appropriate parts which the jury might otherwise disregard (citing cases).’ State v. Jennings, supra, at 476, 282 P. at 567.”

*Quoted from State v. Miller, 2 Or. App. 353 (1970) regarding re-hearing testimony (emphasis added):

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6.210 JUROR REQUEST TO REVIEW AUDIO RECORD OF TRIAL TESTIMONY

Proposed UTCR Amendment(2024) MODIFIED PROPOSED NEW RULE

During jury deliberations, a juror may request to review one or more portions of the oral trial testimony that is admitted in evidence during the trial proceedings.

The request must be made in writing and must be conveyed through the presiding juror to the court.

The court shall afford the parties the opportunity to object to the request outside the presence of the jury.

The presiding judge and the parties are solely responsible for determining which portions of the testimony will be replayed for the jury.

The judge shall have the discretion to grant or deny the request in whole or in part.

The entire jury panel, during their deliberations, must be allowed to listen to the portion that the judge approves for review.

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• Testimony is like any other piece of evidence- used during deliberations?

• “Reluctant Attention” – does it encourage shorter attention spans? “I can listen to it later”

PLAYBACK?

• Capacity of Courts to excerpt portions of testimony for playback? What are the mechanical limitations?

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Perpetuation Testimony Issues Demonstrative Evidence- mark the exhibit but do not “admit” it into evidence

Think about the background and camera angle for video testimony

Martineau v. McKenzieWillamette Medical Center, 332 Or App 473 (May 8, 2024)(explaining difference between “demonstrative” exhibits and “admitted” exhibits)

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The Oregon Evidence Code

Judge Jenna R. Plank Multnomah County Circuit Court References: Oregon Evidence, Kirkpatrick 7th Ed.

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Strategy 

Know the code.



Before trial, consider what your opponent will do that violates the code and use this to draft your motions in limine.



Prepare to meet objections with authority ready for judges.



Remember: Each section is a two-way street.



Concede the points you should.

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OEC 101—When the code does not apply  Hearings on admissibility of evidence, including

offers of proof  Think 104 hearings:  Challenges to expert qualifications, extent of

expert testimony, areas of expertise  Questions of conditional relevancy  Other questions of admissibility

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OEC Article II: Judicial notice 

Judicial notice typically refers to a court's ability to accept an indisputable and well-known fact without requiring proof from the parties, subject to the restrictions delineated in OEC 201. State v. Branch, 243 Or App 309 (2011).



BEWARE: 

Where accuracy of the contents of documents contained in trial court file was subject to reasonable dispute, those contents could not properly be judicially noticed. State v.

Tatarinov, 211 Or App 280 (2007)



A court may take judicial notice only of facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

SAIF v. Calder, 157 Ore. App. 224 (1998)

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We emphasize that judicially noticeable facts are limited to those that are "not subject to reasonable dispute," in that they are either "[g]enerally known within the territorial jurisdiction of the trial court," or are "[c]apable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.“ Eklof v.

Persson, 369 Or 531 (2022)



Read State v. Branch, 243 Or App 309 (2011), if you are asking a court to take judicial notice of established admissibility of certain kinds of evidence.

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OEC Article IV: Relevancy 

OEC 401: Relevant evidence: having any tendency to make a fact of consequence more or less probable.  Evidence of a guilty mind is usually relevant; attempts to cover up,

bribes, witness tampering etc.



Beware of evidence that is conditionally relevant. Object if the condition precedent has not yet been established:  Ex: Evidence of victim’s prior acts of violence were not admissible,

even where defendant claimed self defense because the proponent of the evidence failed to establish the condition precedent that the defendant knew of these acts of violence prior to shooting victim.

State v. Whitney-Biggs, 147 Ore. App. 509(1997).  Because the defendant didn’t know about these prior acts of violence,

they weren’t relevant to reasonableness of defendant’s fear of victim

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Relevancy and Impeachment 

Evidence offered to impeach meets the definition of relevance because credibility is always deemed to be of consequence.  “It is always permissible to show the interest or bias of an adverse

witness.” State v. Hubbard, 297 Or 789, 796 (1984).



Impeachment includes motive, bias and interest, contradictory evidence, prior statements, prior testimony, criminal convictions, character for truthfulness, other relevant character evidence, intoxication or drug use at the time and in the interim, lack of memory, faulty memory, and payment by a party.  Bias includes anything that can motivate a human being to alter

their testimony in the case. It must be specific to the witness.  You do not need to prove that the witness is in fact lying; a motive

to lie, or a bias against the other party or a witness called by that party is enough.

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OEC 403: Exclusion of relevant evidence on grounds of prejudice, confusion or delay All disputed evidence should undergo a 403 analysis: 

OEC 403 requires that the probative value of the evidence be substantially outweighed by the danger of unfair prejudice; caused by:

1.

Confusion of the issues;

2.

Misleading the jury;

3.

Undue delay; and

4.

Needless, cumulative evidence.



Remember that it’s a balance. The more probative, the more tolerance there is for risk of unfair prejudice.



Remember that the prejudice must be unfair.

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OEC 404(1) & (2): Character Evidence 

OEC 404(1): Evidence of a person’s character is admissible when it is an essential element of a charge, claim or defense. *Very limited in civil  Evidence must be in the form of opinion not specific instances. OEC

405

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OEC 404(2): Character evidence is only admissible to prove the person acted in conformity therewith where:  (c) Witness character: OEC 607 (bias/impeachment), 608

(truthfulness), 609 (prior conviction),  (d) Character of a party for violent behavior offered in an assault and

battery case is admissible when self-defense is pleaded and there is evidence of such

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OEC 404(3): Other Crimes, Wrongs or Acts AKA Prior Bad Acts 

Admissible if relevant to prove something other than that a person acted in conformance with the prior act.  Motive, opportunity, intent, preparation, knowledge, identity

or absence of mistake or accident. This list is not exclusive.



Ex: Evidence of prior trespass by defendant admissible in civil trespass case to show absence of mistake/accident. Gibson v.

Tzantarmas, 108 Or App 270 (1991).



OEC 405 doesn’t apply to this type of evidence; can be specific instances

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OEC 405: Methods of Proving Character 



Character testimony admissible under OEC 404(1), 608, is limited to reputation or opinion: This involves no specifics, only the character trait itself. 

Think hard about whether the evidence is really reputation/opinion, or specific instances (which is not allowed)



Ex: Evidence of absence of prior complaints was not proper reputation evidence. State v. Reeder, 137 Or App 421 (1995)

On cross-exam the opponent may inquire about relevant specific instances of conduct to impeach the witness.

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OEC 406: Habit, Routine or Practice 

Habit: a specific, distinctive type of conduct regularly used to meet a particular, repeated situation.



The behavior must be unique and different from others meeting the same situation.



Habit evidence includes individuals’ behaviors and the practices of organizations.



Habit evidence does not need to be corroborated or witnessed on the occasion in question to be offered to prove that the person or organization acted accordingly.

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OEC 503-514: Privileges 

Each privilege is a law unto itself. You must study each as needed



GENERAL RULES  “Confidential communications” are defined differently for

each privilege;

 The person who enjoys the privilege is defined differently for

each privilege;

 The person(s) who can assert the privilege in court will be

specific to each privilege;

 The person who can waive the privilege may differ;  Any privilege can be waived;  Any privilege can be involuntarily lost

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OEC 607: Proper Impeachment Anyone may impeach—any time—any witness.

 

You may always impeach your own witness.



Impeachment may occur on cross and direct.

Types of impeachment:

 

Faulty perception, memory or relating. OEC 601.



Lack of personal knowledge. OEC 602;



Bias. OEC 607-609;



Character for untruthfulness. OEC 608(1)(a);



Prior inconsistent statement. OEC 613, OEC 801



Prior criminal conviction. OEC 609;



Contradiction by other evidence.



Impeachment of experts by learned treatises. OEC 706 

See Kirkpatrick 607.03 for commentary regarding all types.

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OEC 607: Improper Impeachment 

Most impeachment using prior inconsistent statements is not substantively admissible  It is allowed to show the witness is not credible, not that the

prior statements are true. *Ask for a limiting instruction if needed.  Do not let your opponent argue the substance of such

impeachment.



Impeachment is not typically allowed on collateral matters.  “Collateral” means you could not prove/ admit it

independently in your case in chief.



Impeachment may not be “bootstrapped-in” during cross; ie. the subject impeached must have arisen on direct or be independently admissible (eg. bias evidence); cannot ask question just to impeach.

77

OEC 608: (Impeachment) Evidence of Witness Character (for truthfulness) 

(1) Can impeach with evidence of a person’s character for untruthfulness.  Witness must have sufficient familiarity to render the opinion.



(2) Can rehabilitate with evidence of a person’s character for truthfulness (character for truthfulness has to be attacked first)



(3)

Evidence on direct must be in the form of opinion/reputation.

 * The rule says specific instances cannot be asked about on cross-exam,

but that is contrary to governing law. Cross-examination about specific instances is restricted to incidents probative of truthfulness.

 Beware: The examiner must “take the witness’ answer” and cannot

admit prior specific instances through extrinsic evidence

78

OEC 609: Impeachment with Prior Convictions 

Felony convictions; or



Crimes involving false statement or dishonesty (See Kirkpatrick 609.02 for list);



Less than 15 years has passed since the time of the conviction and/or release from confinement



Convictions from other jurisdictions are admissible;



You do NOT need a “certified copy” to impeach: 

But be sure the conviction(s) are properly admissible or you risk a mistrial.



If the witness answers “no” you are stuck unless you have a certified copy of the conviction.

79

OEC 609: Impeachment for Bias or Interest 

Always relevant



It may be conduct or statements.  Examples of bias evidence: Personal, family, sexual, romantic, or

business relationships at any time, especially ongoing; Statements indicating affinity or hostility; litigation or threats of same; prior fights, disagreements or quarrels; payment for testimony; granting or promising favors to witness; motive to curry favor with a party.



Before extrinsic proof of bias or interest is offered, the witness must be asked specifically about such conduct or statements  If the witness “fully admits” additional evidence is not

admissible.  If the witness denies or fails to fully admit then the impeaching party may prove them with extrinsic evidence 80

OEC 613: Prior statements of witnesses 

“Inconsistent” means “any material variance.” Kirkpatrick 613.04[5].



The examiner NEED NOT show the witness the inconsistent statement before questioning.



The statement must be shown to opponent on request.



The statement NEED NOT be written.



Extrinsic evidence of a prior inconsistent statement is only admissible if the witness is given an opportunity to explain or deny, but the opportunity to explain may occur after extrinsic proof of the statement is produced.



A witness may be rehabilitated with prior consistent statements, which are nonhearsay. OEC 801(4)(a)(B).

81

OEC 701: Lay Opinion Testimony 

Rationally based on the perception of the witness (similar to OEC 602);



Helpful to understanding the witness’ testimony OR to determining facts in issue (beware testimony that just tells a jury what they’re seeing); and



Not speculative or conjectural (beware simple conclusions)



Anyone can be qualified for lay opinion on a host of issues.

82

OEC 702: Expert Opinion Testimony Area of “expertise” can be anything. Expert can be qualified by knowledge, skill or education. 



Scope of the expert’s testimony is also limited by their qualifications.

Expert’s qualifications are a preliminary question for the judge, generally addressed as part of a 104 hearing. 

Experts can opine on ultimate issues, but questions of law are usually not properly the subject of expert testimony. OEC 704 

While opinions can be based on facts not in evidence, the rule is not a mechanism to admit inadmissible evidence. OEC 703 

Experts can be cross-examined with statements contained in “learned treatises”, the treatise itself is inadmissible. OEC 706 

83

OEC 702(4) Expert Scientific Evidence: 

What is scientific evidence? Things that sound science-y. 

“[E]vidence that draws its convincing force from some principle of science, mathematics and the like.” State v. Brown, 297 Or 404 (1984).

Scientific evidence (expert testimony based upon the application of scientific techniques) must pass the Daubert/ Brown/ O’Key standard. None of the factors are individually dispositive: • Can the theory/technique be tested • Is the theory/technique subject to peer review and publication • What is the known potential error rate • What is the degree of acceptance in the scientific community 

Unless approved by prior appellate decision or by statute, proponent of the evidence bears the burden of establishing that it meets the Brown/O’Key standard for admissibility. 



Comes up most frequently in civil cases on issues of causation.

84

OEC 801: Hearsay 

Hearsay is an unsworn statement offered to prove the truth of the matter asserted.



A “statement” is an oral or written assertion, or nonverbal conduct intended as an assertion.



The following are NOT hearsay: 

Statement by party opponent



Impeachment by prior inconsistent statements, OEC 613 (not offered for truth);



For effect upon listener (“I will kill you.”)



Proving state of mind of declarant (“Let’s steal this.”)

85

OEC 803 Hearsay exceptions, declarant availability immaterial Each exception has its own requirements



Most commonly used are:





Excited utterance: startling event, made under stress of excitement, relates to event.



Then existing mental condition: including intent, plan, motive, design



Statements made for purposes of medical treatment



Public records: report of public office setting forth activities or matters observed pursuant to duty imposed by law



Business records: Made at or near event, made by a person w/knowledge &duty to report, was regular practice of business to make such record, kept in course of regularly conducted business activity.



Residual exception: not admissible under any other exceptions, circumstantial guarantees of trustworthiness, must give advanced notice 86

OEC 804 Hearsay exceptions, declarant must be unavailable Unavailable = Privilege, Refusal to testify, Lack of Memory, death, physical or mental illness, proponent unable to procure by process.





Most commonly used are: 

Former testimony: Declarant is unavailable and the opposing party had an opportunity and similar motive to develop testimony by direct or cross exam



Statement against interest: Contrary to pecuniary/proprietary interest, subject to civil liability, subject to criminal liability, OR tended to render invalid claim against another.



Residual exception: Not covered by above but having circumstantial guarantees of trustworthiness AND offered as evidence of material fact, more probative than other evidence that proponent can procure and OEC & interests of justice served, must give advance notice.

87

Cross Examination and the Expert Witness Presented by: Judge Beth Bagley Deschutes County Circuit Court Judge

88

Goals for Cross Examination and the Expert Witness 1. Who is an expert witness?

2. How is an expert witness qualified as an expert?

3. How do you challenge the qualifications of an expert pre-

trial?

4. How do you effectively cross-examine an expert during

trial?

89

OEC 702: Testimony by Experts 

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. ORS 40.410, OEC 702.

90

Expert Opinion Testimony (boldly stolen from Judge Jenna Plank’s presentation)

Area of “expertise” can be anything. Expert can be qualified by knowledge, skill or education. 



Scope of the expert’s testimony is also limited by their qualifications.

Expert’s qualifications are a preliminary question for the judge, generally addressed as part of a 104 hearing. 

Experts can opine on ultimate issues, but questions of law are usually not properly the subject of expert testimony. OEC 704 

While opinions can be based on facts not in evidence, the rule is not a mechanism to admit inadmissible evidence. OEC 703 

Experts can be cross-examined with statements contained in “learned treatises”, the treatise itself is inadmissible. OEC 706 

91

OEC 702.04: Scientific Expert Testimony (boldly stolen from Judge Jenna Plank’s presentation; repetition=remembering) 

What is scientific evidence? Things that sound science-y. 

“[E]vidence that draws its convincing force from some principle of science, mathematics and the like.” State v. Brown, 297 Or 404 (1984).

Scientific evidence (expert testimony based upon the application of scientific techniques) must pass the Daubert/ Brown/ O’Key standard. None of the factors are individually dispositive:  • • • •

Can the theory/technique be tested Is the theory/technique subject to peer review and publication What is the known potential error rate What is the degree of acceptance in the scientific community

Unless approved by prior appellate decision or by statute, proponent of the evidence bears the burden of establishing that it meets the Brown/O’Key standard for admissibility. 



Comes up most frequently in civil cases on issues of causation.

92

Expert Witness and Jury Instructions  

UCJI 10.06 

 





EXPERT WITNESS

An expert witness may give an opinion on any matter in which that witness has special knowledge, skill, experience, training, or education. [The opinion may be given in response to a hypothetical question. A hypothetical question asks a witness to assume that certain facts are true, and then to give an opinion based on those assumed facts.]  You should consider the qualifications and credibility of the expert witness, the reasons given for the opinion, and the reasonableness of any assumptions underlying the opinion. You are not bound by the opinion. Give it the weight, if any, to which you consider it entitled.

UCrJI 1034 

EXPERT OPINION EVIDENCE

 

An expert witness is a person with special skills or education in a particular field. Even though expert witnesses may testify about their opinions, you are not required to accept those opinions. To determine the value, if any, you will give to an expert’s opinion, you should consider such things as the expert’s qualifications, the expert’s opportunity and ability to form the opinion, the expert’s believability, and how the expert reached the opinion or conclusion.

93

Challenging the qualifications of an expert in a 104 hearing

94

Qualifying the Expert Witness (pre-trial) 

OEC 104: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege or the admissibility of evidence shall be determined by the court, subject to the provisions of subsection (2) of this section. In making its determination the court is not bound by the rules of evidence except those with respect to privileges. ORS 40.030



The “104 hearing” is often your first bite of the expert apple and a preview of what is to come in the absence of expert discovery. Find out what you can to prepare your cross exam of their expert.



*Practical tip: It is within the court’s discretion to allow experts to hear and observe the testimony of opposing experts, notwithstanding other witnesses being “excluded.” Ask the Judge!

95

Qualifying the Expert (during trial) 

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. ORS 40.410, OEC 702.

1. Establish the basis for the expertise: Scientific? Technical? Other?

2. Establish the educational background (if required for the expertise) 3. Establish the training (nature, duration, ongoing and current?)

4. Establish the experience (how long has the expert been experting?)

5. Establish whether, when, where, and how many times the witness has been

received as an expert prior to the current testimony.

96

Qualifying the Expert: Order of Operations 1.

Ask witness to introduce self (name, where employed, what field)

2.

Have witness review their CV and attest that it is accurate and current

3.

Offer CV as an exhibit

4.

Go over the relevant qualifications in detail here (training, education and experience)

5.

If witness has published or authored relevant scholarly writings prior to the trial have witness identify and explain

6.

Tender the witness as an expert witness in their field of specialty

97

What Qualifying the Expert Might Look Like 

Introduction, CV contains information on education, training, experience, and areas of expertise.

1.

2.

3.

4.

5.

6.

Education Licenses and Professional Associations Partner Nicoletti-Flater Associates Research, Publications Assignments and Appointments Achievements and Awards



Offer CV:



Areas of Expertise Defined

1.

2.

3.

4.

Psychology, Threat Assessment, Conducting threat assessment and conducting threat management training.

What makes you an expert in this area • Board Certified as Diplomat-Psychology, Police Psychology ( i.

Higher level of certification: Degree, license, then Diplomat (since 18 years) • Experience-responded to over 15 events • Grant with Homeland Security-$1 million to train school campus on violence, as part of the grant went in and did the threat assessments at no charge. i.

A number of successes Internal variables



Previously been qualified as an Expert

1.

2.

Federal Court State Court



1.

Offer as Expert: Psychology, Threat Assessment, threat assessment and threat management training

98

Say the Magic Words!

“Your Honor, at this time I tender [expert] as an expert witness in the field of [be specific].”

“Your Honor, at this time I tender Beth Bagley as an expert witness in the field of Will Farrell cinema, specifically his comedic works co-starring John C. Reilly.”

99

Cross Examining the Expert 

UCrJI 1034  

EXPERT OPINION EVIDENCE

 

An expert witness is a person with special skills or education in a particular field.

Even though expert witnesses may testify about their opinions, you are not required to accept those opinions. To determine the value, if any, you will give to an expert’s opinion, you should consider such things as the expert’s qualifications, the expert’s opportunity and ability to form the opinion, the expert’s believability, and how the expert reached the opinion or conclusion.

100

Cross Examining the Expert 

UCJI 10.06

 

EXPERT WITNESS

 

An expert witness may give an opinion on any matter in which that witness has special knowledge, skill, experience, training, or education. [The opinion may be given in response to a hypothetical question. A hypothetical question asks a witness to assume that certain facts are true, and then to give an opinion based on those assumed facts.]  You should consider the qualifications and credibility of the expert witness, the reasons given for the opinion, and the reasonableness of any assumptions underlying the opinion. You are not bound by the opinion. Give it the weight, if any, to which you consider it entitled.

101

Areas for Examination of Experts 

Expertise (my expert is better than your expert) 



Credibility/believability: 





Did your expert ACTUALLY write the book?

Bias/motive/interest (“expert for hire”)

Opportunity/knowledge 

What doesn’t the expert know about this case?



Who fed the expert the information?



Did the expert review everything they should have?

Reasonableness/supportability of opinion 

Is the conclusion/opinion actually supported by the evidence?

102

What This Might Look Like (accident and crash reconstruction) 

Experience, Training, Education:

 ▪ ▪ ▪ ▪ ▪

What book(s) do you consider to be authoritative?

Can you cite a treatise to back up your statement?

Not ACTAR certified (Accrediting Commission for Traffic Accident Reconstructionist)?

Training, education in a field not related to collision reconstruction.

Publications not related to collision reconstruction.

103

What This Might Look Like (continued)   ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪ ▪

Incomplete or Faulty Investigation Did not visit the scene in a timely manner Time spent at the scene Road evidence was not visible when expert visited the scene Acceleration tests -- driver input different from actual driver considered Different vehicle used (weight, engine condition, etc) Measuring equipment was not calibrated Did not check for a recall on involved vehicle Curve prior to crash not analyzed, re: establishing upper limit for defendant’s speed What weight was used for vehicle – did not weigh the vehicle?

Was not able to inspect vehicles --- couldn’t it have given you additional info?

Was not able to recreate weather for visibility assessment.

Visibility test with different vehicle --- alignment, height, lamps, weather, moon, etc.

Visibility test done by alerted operator Attacks on the drag factor measurement Unable to identify exact point of impact

104

What This Might Look Like (continued) 

Errors in Investigation or Reconstruction



▪

Yaw – tire mark radius not equal to CM radius Yaw equation incorrectly applied to tire mark evidence Rolling f – didn’t use it when there were no marks (post-impact roll-out) Were all possible means of getting to FRP considered?

Did not include effects of rotation on drag factor used in speed calculations.



Assumptions were made to facilitate calculations

▪ ▪ ▪ ▪

105

What This Might Look Like (continued) 

Credibility

 ▪ ▪ ▪ ▪

▪ ▪

Did not have all materials before reaching conclusions Changed report after seeing adverse expert report Has never personally done any tests that were published Has not published papers in the area of accident reconstruction Have you consulted --- did you consult with anyone – no check on your work?

Did not inspect vehicle for mechanical defects

106

What This Might Look Like (continued) 

Certainty of Opinion(s)

 ▪ ▪ ▪ ▪

▪ ▪ ▪

Did not do sensitivity analysis Point of impact – no scuff marks, no debris pattern, no jog in tire mark MC rear only skid --- include a range of front braking in speed estimates Momentum calculation – RE: uncertainties in angles, post-impact motion to FRP Did you ever make an error? How do you know you didn’t make one in this case?

Were uncertainties in evidence cumulative in the calculations?

Incomplete reconstruction of motion of other vehicle – regarding causation.

107

Cross Examining the Expert: Order of Operations 1.

2.

Concessions first! (build the box) 1.

What does this expert have to concede that helps your case?

2.

What does this expert have to concede that makes their case weaker?

Challenge second! (lock ‘em in the box) 1.

Organize your cross by subject matter/areas of inquiry

2.

What is the vulnerability/area for attack?

3.

Impeach where you can

4.

Have your impeachment sources ready and use them during cross

3.

Don’t get into the weeds with the expert.

4.

End on a high note

108

Words of Caution 

Don’t try to out-expert the expert on their own turf. You will lose. Always.

This has never worked. Ever. 

Also, since you, the lawyer, can’t be a witness in your own trial, how do you think you will win this battle? Treatises aren’t admissible as exhibits, only for impeachment. This is a dead-end. Don’t do it!



Don’t get lured into the land of jargon while you battle their expert and examine your own expert. Jargonlandia is not an enjoyable tourist destination for juries and you will lose them.



Remember: The best cross examination is a surgical strike and not carpet bombing. Be prepared, be focused, and move swiftly (but not so fast that the jury can’t keep up).

109

Using Your Expert Witness 

Rely on your expert to prepare for cross exam of the opposing expert

1.

What weakness and strengths does your expert see in your own case and how might those be addressed?

2.

What weakness and strengths does your expert see in the opposing party’s case and how might those be addressed?

3.

What questions should you be asking your own expert?

4.

What questions should you be asking their expert?

110

Final Words of Advice 

A brick is not a wall.



Cross-examination is laying the bricks for your wall.



You do not win your case in cross-examination.



Save it for closing argument!



Poise counts! (for you and the expert)

Questions?

111

IMPLICIT BIAS Presented By: Judge Oden-Orr

Presentation will be made available following the convention upon request.

Saturday, June 14, 2025 8:00am - 9:00am 112

OREGON APPELLATE UPDATE Presented By: Sasha Petrova, Nathan Morales, & Ivan Resendiz-Gutierrez

Saturday, June 14, 2025 9:15am - 10:15am 113

2025 OADC Annual Conference Appellate Update Nathan Morales, Stoel Rives LLP Sasha Petrova, Tonkon Torp LLP Iván Resendiz Gutierrez, Miller Nash LLP

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SPEAKERS Nathan Morales Partner, Stoel Rives LLP nathan.morales@stoel.com Sasha Petrova Partner, Tonkon Torp LLP sasha.petrova@tonkon.com Iván Resendiz Gutierrez Partner, Miller Nash LLP ivan.Resendiz@millernash.com

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Ore2025 OADC Annual Conference—Appellate Update Nathan R. Morales, Sasha Petrova, and Iván Resendiz Gutierrez OREGON COURT OF APPEALS – PROCEDURAL UPDATES New department configurations as of June 1, 2025: • Department 1: Tookey, P.J.; Kamins, J.; Jacquot, J. • Department 2: Ortega, P.J.; Joyce, J.; Hellman, J. • Department 3: Aoyagi, P.J.; Egan, J.; Pagán, J. • Department 4: Shorr, P.J.; Powers, J.; O’Connor, J. • Motions Department: Egan, P.J.; Joyce, J. • Balfour/Monthly Submit Department: Lagesen, C.J.; Egan, J. New appellate oral argument procedure as of April 1, 2025: “Excluding expedited juvenile and land use cases, for cases in which the answering brief is filed on or after April 1, 2025, parties seeking oral argument must file an oral argument appearance request within 14 days of the date the answering brief is filed that indicates how the party would prefer to appear. Joint requests are encouraged, but individual requests are permitted. Oral argument typically will be scheduled in a format—in-person, remote, or hybrid— that accommodates the parties’ expressed preferences, although the court retains the discretion to set arguments in a different format to meet the needs of the court.”

1 116

OREGON APPELLATE CASE UPDATES Sonja Bohr v. Tillamook County Creamery Association, 373 Or 343, 567 P3d 413 (2025) Facts: Oregon’s Unlawful Trade Practices Act (“UTPA”) provides a private right of action for any person who suffers an “ascertainable loss” of money or property “as a result of” another person’s unlawful trade practice. ORS 646.638(1).

Plaintiffs alleged that Tillamook made false representations regarding the nature and origin of its dairy products. Plaintiffs argued that, through its marketing and advertising campaigns, Tillamook caused consumer confusion by representing that its dairy products are sourced from small, family-owned farms in Tillamook County that prioritize animal welfare, whereas in reality, Tillamook sourced most of its milk from a large “factory farm” in eastern Oregon. According to plaintiffs, those misrepresentations led consumers to suffer economic harm by purchasing products at artificially inflated “premium” prices—i.e., higher prices than Tillamook’s products would have been able to command in the market in the absence of the false representations.

Holding: Plaintiffs and members of the putative class were not required to plead that they had relied on the alleged misrepresentations to state a claim under their “price premium” and “illegal products” theories of ascertainable loss. The trial court erred by dismissing plaintiffs’ lawsuit at the ORCP 21 stage.

Significance: This decision arguably makes it easier for plaintiffs to assert novel theories of UTPA violations and calls into question the continuing significance of “reliance” in UTPA class actions.

2 117

KKMH Properties, LLC v. Michael P. Shire, 373 Or 676, __ P3d __ (2025) Facts: Under ORS 90.392, a landlord can terminate a rental agreement based on, among other things, a tenant’s material violation of the parties’ rental agreement.

ORS 90.392 authorizes both “30-day” and “10-day” terminations. A termination can occur 30 days after delivery of a termination notice unless the violation that is the basis for termination is a repeat violation, in which case termination can occur 10 days after delivery of the notice. The termination notice must comply with a requirement in ORS 90.392(3)(c) that it state, in certain circumstances, that the violation can be cured.

In this residential eviction case, the landlord proceeded with a “30-day” termination under ORS 90.392. The landlord delivered to tenant a “30-Day ‘For Cause’” notice, stating that the parties’ rental agreement would terminate based on the tenant’s material violation of the rental agreement—causing “extensive” property damage by “keeping and maintaining 277+ guinea pigs running ‘free range’” on the premises.

The notice did not state that the violation could be cured. On the contrary, the notice stated that, because the damage to the premises would cost “tens of thousands of dollars” to repair and could not be repaired while the tenant remained on the premises, “no cure opportunity * * * is available to you.”

After the tenant did not vacate the premises by the date specified in the notice, the landlord brought an eviction action against the tenant. The tenant moved to dismiss the action on the ground that the landlord’s termination notice was invalid because it did not comply with the requirement in ORS 90.392(3)(c) to state that the violation could be cured. The trial court denied the tenant’s motion to dismiss and thereafter awarded possession of the premises to the landlord, ruling that, in the circumstances of this case, ORS 90.392(3)(c) did not require the landlord’s termination notice to state that the violation could be cured. The tenant appealed, assigning error to the trial court’s denial of his motion to dismiss, and the Court of Appeals affirmed.

Holding: The Supreme Court reversed, concluding that the trial court had erred in denying the tenant’s motion to dismiss. Based on the text, context, and legislative history of ORS 90.392, the Court unanimously held that a termination notice under ORS 90.392(3)(c) must state that a violation can be cured when, as a matter of law, a tenant has a right to cure the violation. The Court further held that a tenant has a right to cure all violations that can be a basis for termination under ORS 90.392, except repeat violations that are the basis for “10-day” terminations. Therefore, the Court explained, a tenant has a right to cure any violation on which a “30-day” termination under ORS 90.392 is based, and, when that right exists, a termination notice under ORS 90.392(3)(c) is required to inform the tenant of that right. Applying that understanding to the facts in this case, the Court held that, because the landlord had proceeded with a “30-day” termination under ORS 90.392, the tenant had a right 3 118

to cure the violation, and the landlord’s termination notice was invalid for failing to inform the tenant of that right.

Significance: Landlords beware: A termination notice under ORS 90.392(3)(c) must state that a violation can be cured when a tenant has a right to cure the violation and a tenant has a right to cure all violations that can be the basis for termination under ORS 90.392, except repeat violations that are the basis for “10-day” terminations.

4 119

Weston Twigg v. Admiral Insurance Company, 373 Or 445, __ P3d __ (2025) Facts: In this insurance coverage case, plaintiffs sued an insured contractor for breach of contract, and the insurance carrier denied coverage, arguing that, because the underlying cause of action against the contractor was for breach of contract, “‘property damage’ * * * caused by an ‘occurrence,’” under the policy, which was defined, in part, as an “accident,” had not occurred. The trial court granted summary judgment in the insurance carrier’s favor, concluding that an “accident” sounds in tort, but plaintiffs had brought a breach-of-contract claim, so there was no coverage.

The Court of Appeals affirmed.

Holding: The Supreme Court reversed both the Court of Appeals and trial court, holding that, whether an insurance claim seeks recovery for an “accident” does not depend on a plaintiff’s pleading decisions in the underlying claim against the insured, but depends instead on whether there is a basis in fact for imposing tort liability.

Because there were factual disputes material to whether such a basis existed, the trial court erred in granting defendant summary judgment and the Court of Appeals erred in affirming that judgment.

Significance: As a matter of first impression, this is new law for insurance policies in Oregon that include similar definitions for “property damage” and “occurrence.”

5 120

Mitch Langjahr v. Glorietta Bay, LLC, 340 Or App 594, __P3d __ (2025) Facts: Defendant appealed from a judgment granting plaintiffs a prescriptive easement over a corner of defendant’s property. The trial court granted the easement on the parties’ cross-motions for summary judgment based on its conclusion that a rebuttable presumption of adversity of use by plaintiffs applied to the case. On appeal, defendant argued that the presumption did not apply and that plaintiffs had not demonstrated the necessary adversity to obtain a prescriptive easement.

Holding: The trial court erred in granting summary judgment to plaintiffs. The rebuttable presumption of adversity did not apply to the undisputed facts of the case, which involved plaintiffs’ use of an existing access path across defendant’s gravel lot, and plaintiffs did not otherwise present evidence of adversity.

Significance: Although plaintiffs and defendant did not know each other personally, they were owners of neighboring lots and not “strangers” as that term is used in the case law. When the claimant and owner are neighbors, it is more reasonable to assume the use of an existing way is being made pursuant to a “friendly arrangement”—and therefore the presumption of adversity does not apply.

6 121

David Doumith v. Khalil Azar, 339 Or App 329, __ P3d __ (2025) Facts: Defendants moved to dismiss based on the doctrine of forum non conveniens.

The trial court initially denied the motion, but subsequently granted plaintiffs’ renewed motions to dismiss on the same basis. On appeal, plaintiffs argued the trial court committed reversible error by granting the renewed motions, failed to view plaintiffs’ allegations in the light most favorable to them, and abused its discretion in granting the motion.

Holding: The trial court did not err by revisiting its prior decision on forum non conveniens and granting the renewed motions. The Court explained: “[P]laintiffs have not identified any legal principle—either of general applicability or unique to the forum non conveniens doctrine—that would preclude the court from revisiting its prior rulings. * * * [W]e are unpersuaded that the court was somehow bound by its prior rulings, such that it could not revisit the forum non conveniens issue, including considering new evidence obtained in discovery since the original motions were filed.”

Significance: Parties should not shy away from renewing previously denied motions, particularly where intervening circumstances and/or factual developments support putting the issue before the trial court for a second time.

7 122

Cathay Bank v. Hemstreet, 339 Or App 764, __ P3d ___ (2025) [non-precedential memorandum opinion] Facts: Bank obtained a federal judgment against debtor, and subsequently registered that judgment in Multnomah County. When debtor failed to pay, bank successfully moved the trial court for an order appointing a receiver over debtor’s various business entities. Debtor appealed the appointment of a receiver. On appeal, bank argued that the Court of Appeals lacked jurisdiction because the order appointing a receiver was not an immediately appealable order under ORS 19.205.

Holding: Order appointing a receiver was immediately appealable under ORS 19.205(3), which provides that “[a]n order that is made in the action after a general judgment is entered and that affects a substantial right, * * * may be appealed in the same manner as provided in this chapter for judgments.” The order appointing the receiver was made after the registration of the federal judgment in Oregon (i.e., made “after a general judgment [was] entered”) and affected a substantial right because it vested the receiver with control over debtor’s property interests and businesses.

Significance: Orders entered after the registration of a foreign judgment in Oregon are immediately appealable, so long as they “affect[] a substantial right.” An order affects a substantial right if it exposes a litigant to further litigation and/or additional costs. See Bhattacharyya v. City of Tigard, 212 Or App 529, 534, 159 P3d 320 (2007) (an order affects a substantial right if the right is “something that is due to a person by just claim, legal guarantee, or moral principle”); see also Lincoln Loan Co. v. Estate of George Geppert, 307 Or App 213, 218 n 2, 477 P3d 7 (2020), rev den, 367 Or 826 (2021) (concluding that an order affected a substantial right because it exposed the appellant to further litigation and additional costs).

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Patricia Anselmo v. Target Corporation, 340 Or App 21, __ P3d ___ (2025) Facts: Plaintiff filed this lawsuit as personal representative for her deceased former husband’s estate seeking damages for alleged injuries that her husband sustained when the defendants’ agent allegedly falsely reported that he saw pornographic photographs of the husband with children on his smartphone. Three electronic devices, including an iPhone 6S, were seized from the husband and devices were analyzed by the FBI, which, after a number of months, determined that the devices did not contain any pornographic images involving children or otherwise. The devices were returned to the husband, and he was not arrested or charged with any crimes.

The husband died several months later, and the FBI closed its file.

Defendants moved for summary judgment on plaintiff’s IIED claim, asserting an absence of evidence that defendants’ agent had intended to cause any harm to the husband, an element of the IIED claim. They presented defendants’ agent’s deposition testimony that he genuinely believed that he saw child pornography on the husband’s phone.

Plaintiff responded that material issues of fact existed on the question of intent. She argued that a jury could find that defendant’s agent did not tell the truth about what he saw on the husband’s iPhone, casting the agent’s story about the amount of detail he observed as implausible and noting the FBI’s inability to find any pornographic images involving children on the seized devices. Her counsel additionally submitted an ORCP 47 E declaration, stating: “The estate has retained an expert whose opinions and facts create issues of fact and defeat summary judgment as to the issues raised [in] [the defendants’] motions, including the veracity of [the agent]’s accusations, whether his reporting was in good faith, and [the agent’s] potential statutory immunity.” Plaintiff argued that a jury could infer from the absence of pornographic images on the devices that [the agent]’s report to law enforcement was intentionally false.

In its ruling from the bench, the trial court stated: “With respect to the intentional infliction of emotional distress, I do find that there is not sufficient evidence of intent, that [the agent] intended or knew with substantial certainty that his false report would cause severe emotional distress.” The court issued an order to that effect and dismissed the IIED claim.

Plaintiff appealed. On appeal, plaintiff asserted that the trial court erred in granting summary judgment on the IIED claim because there was a genuine issue of material fact regarding the intent behind defendants’ agent’s allegedly false reporting of seeing child pornography on the deceased’s phone.

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Holding: The Court concluded that the trial court erred in failing to give plaintiff’s counsel’s ORCP 47 E declaration the consideration that it was due. According to the Court, the declaration, when taken at face value, created a genuine issue of material fact regarding what data was on the deceased’s phone, which could allow a reasonable juror to infer that the report regarding child pornography was intentionally false, something that the parties agree would qualify as outrageous conduct in support of the IIED claim.

Significance: Trial courts have been instructed to give ORCP 47 E declarations more weight than trial courts previously thought.

10 125

Dailey v. University of Portland, 340 Or App 80, __ P3d __ (2025) Facts: Plaintiff, a student enrolled in the defendant university’s Doctor of Nursing Practice degree program, withdrew from that program following a dispute with the defendant regarding graduation requirements. Plaintiff brought an action against defendant for breach of contract and negligence, seeking economic and emotional distress damages. Plaintiff’s contract claim centered around statements in three documents that defendant provided to its students: a graduate nursing handbook, a general student handbook, and an online bulletin listing the defendant’s offerings.

Each of those documents contained a disclaimer, each of which expressly provided that no statements contained in that document gave rise to contractual obligations.

Defendant moved for summary because even if the statements in its handbooks and online bulletin could give rise to contractual obligations in the absence of its disclaimers, the disclaimers prevented those statements from being converted into binding contractual obligations. The trial court granted defendant’s motion.

Holding: The Court concluded that the trial court erred in granting summary judgment on plaintiff’s contract claim based on the disclaimer in defendant’s bulletin.

According to the Court, it was not clear on summary judgment that defendant’s disclaimer was conspicuously or prominently displayed on defendant’s website. The Court further concluded that the trial court did not err in granting summary judgment on plaintiff’s negligence claim because neither the regulations nor the common law on which the plaintiff relied gave rise to a special relationship that would permit plaintiff to recover economic or emotional distress damages.

Significance: Employers, including universities, should ensure that disclaimers are conspicuous or prominently displayed. This decision further bolsters the understanding that there is no special relationship between a student and a university.

11 126

Alison K. Lavelle-Hayden v. Employment Department, 336 Or App 804, __ P3d __ (2024) Facts: This was this case’s second trip to the Court. In the first case, the claimant, a respiratory therapist at a hospital, sought a religious exemption from her employer’s COVID-19 vaccine requirement, but the employer denied the exemption and terminated her. She sought unemployment benefits, the Employment Appeals Board (EAB) denied her request, and the Court remanded because the EAB applied an incorrect legal standard in assessing whether the denial of unemployment benefits violated her rights under the Free Exercise Clause of the First Amendment to the United States Constitution. On remand, the EAB again upheld the denial of benefits because it determined that claimant’s beliefs were more likely than not secular or personal, instead of religious. The claimant appealed.

Holding: The Court held that when considered under the legal standard articulated by the United States Supreme Court, the uncontroverted evidence in the record would lead all reasonable factfinders to find that claimant’s objection to the vaccine rested on an “honest conviction” based on her religious principles. The EAB’s determination to the contrary rested on a misapplication of the correct legal standard and on presumptions lacking a foundation in the factual record. The Court highlighted that neither the hospital nor the Employment Department appeared at the hearing; they also did not present any witnesses or evidence undermining the claimant’s testimony about her religious beliefs. The claimant, on the other hand, testified about her religious reasons for refusing the vaccine, including explaining parts of the Bible that informed her beliefs. Accordingly, the EAB’s order denying benefits is not supported by substantial evidence, and the claimant is entitled to an award of unemployment benefits. The Court reversed and remanded.

Significance: Employers should keep in mind that the Court has emphasized that “religious beliefs need not be acceptable, logical, consistent, or comprehensible to others to merit First Amendment protection.” But also, if an employer is going to deny an accommodation request, it should do its homework.

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Nour Eddine Mouktabis v. Clackamas County, 337 Or App 226, __ P3d __ (2025) Facts: The pro se plaintiff, who was in the middle of a contentious divorce, was arrested for allegedly violating a restraining order. An officer of the West Linn Police Department arrested him. He was taken into custody and spent a night in jail. He was then acquitted of violating the restraining order. Following his acquittal, the plaintiff filed a complaint against multiple defendants for the actions resulting in his arrest and multiple subsequent contentious encounters relating to his relationship with his now ex-wife where police became involved. As relevant here, the plaintiff asserted claims against the Oregon City and West Linn police departments for false arrest, false imprisonment, and negligence. The defendants filed a motion for summary judgment against all of the plaintiff’s claims, arguing that the police were immune from liability under ORS 133.315. The trial court granted defendant police departments’ motion for summary judgment on the basis of immunity for the police officers involved in the plaintiff’s arrest. The plaintiff appealed, arguing that the trial court improperly shifted the burden to him to disprove the defendants’ affirmative defense and incorrectly concluded that a showing of probable cause for the arrest was not necessary to a finding of immunity.

Holding: The Court concluded that the trial court improperly shifted the burden on summary judgment to the plaintiff and granted summary judgment on a mistaken principle of law when it concluded that summary judgment was warranted because the plaintiff had not shown that the officers acted in bad faith, instead of requiring the police departments to demonstrate that the officers had acted in good faith as is required by the immunity statute. The Court reversed and remanded.

Significance: Just a reminder that the defendant, not the plaintiff, bears the burden of proof to establish an affirmative defense as a matter of law at the summary judgment stage.

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Daniel B. Trainor v. Vigor Marine, LLC, 340 Or App 501, __ P3d __ (2025) Facts: In this employment case, plaintiff appealed from a judgment of dismissal after the trial court granted summary judgment against his claim that defendant wrongfully discharged him in retaliation for testifying against defendant in a separate discrimination case in violation of ORS 659A.230(1). Plaintiff raised two assignments of error, contending that the trial court (1) abused its discretion in holding that plaintiff was judicially estopped from pursuing his claim for wrongful discharge, and (2) erred by granting defendant's motion for summary judgment finding no genuine issue of material fact that defendant had fired plaintiff in retaliation for testifying against defendant.

Holding: The trial court did not err in granting summary judgment to defendant, on the basis that there was no genuine issue of material fact that defendant had not fired plaintiff in retaliation for testifying against defendant. The undisputed material facts in the record established that defendant had re-hired plaintiff after he testified in the prior discrimination case, and plaintiff had committed multiple workplace violations leading to his termination.

Significance: Discussing and fleshing out when it is appropriate to grant summary judgment for an employer in a case of retaliation for testifying against the employer in a separate discrimination case in violation of ORS 659A.230(1).

14 129

Pacific Bio Products – Warrenton, LLC v. Oregon Environmental Quality Commission, A186173, Order Granting Stay (2025) Facts: In this judicial review proceeding, petitioner sought review of a final order issued by respondent Environmental Quality Commission, which upheld National Pollutant Discharge Elimination System Permit No. 101804 issued by the Oregon Department of Environmental Quality (DEQ) in 2022, with which petitioner is required to comply in order to continue operating its fish and shellfish processing plant in Warrenton, Oregon. Petitioner moved for and was denied a stay of the final order by DEQ, so sought a stay through the Court of Appeals. See ORS 183.482(3) (providing for the process to stay an agency final order on judicial review).

Holding: The Court of Appeals granted petitioner’s motion to stay DEQ’s final order.

Petitioner sufficiently established the existence of (1) a “colorable claim of error,” in that petitioner’s assignments of error on review were “substantial and nonfrivolous, or seemingly valid, genuine, or plausible”; and (2) irreparable harm from the order, in that petitioner’s business would need to shut down.

Significance: Addresses the legal standards for obtaining a stay of an agency order on judicial review, and rejects DEQ’s argument that petitioner needed to preserve its arguments and facts regarding irreparable harm, below.

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Agenda • Oregon Court of Appeals Procedural Updates • Oregon Appellate Case Updates o Oregon Supreme Court o Oregon Court of Appeals • Q&A

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Oregon Court of Appeals – Procedural Updates • New department configurations as of June 1, 2025: • Department 1: Tookey, P.J.; Kamins, J.; Jacquot, J. • Department 2: Ortega, P.J.; Joyce, J.; Hellman, J. • Department 3: Aoyagi, P.J.; Egan, J.; Pagán, J. • Department 4: Shorr, P.J.; Powers, J.; O’Connor, J. • Motions Department: Egan, P.J.; Joyce, J. • Balfour/Monthly Submit Department: Lagesen, C.J.; Egan, J.

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Oregon Court of Appeals – Procedural Updates • New appellate oral argument procedure as of April 1, 2025: “Excluding expedited juvenile and land use cases, for cases in which the answering brief is filed on or after April 1, 2025, parties

seeking oral argument must file an oral argument appearance request within 14 days of the date the answering brief is filed that indicates how the party would prefer to appear. Joint requests are encouraged, but individual requests are permitted. Oral argument typically will be scheduled in a format—in-person, remote, or hybrid—that accommodates the parties’ expressed preferences, although the court retains the discretion to set arguments in a different format to meet the needs of the court.”

133

Sonja Bohr v. Tillamook County Creamery Association, 373 Or 343, 346, 567 P3d 413 (2025)

• Facts: Oregon’s UTPA provides a private right of action for any person who suffers an “ascertainable loss” of money or property “as a result of” another person’s unlawful trade practice. ORS 646.638(1).

• Plaintiffs alleged that Tillamook made false representations regarding the nature and origin of its dairy products. Plaintiffs argued that, through its marketing and advertising campaigns, Tillamook caused consumer confusion by representing that its dairy products are sourced from small, family-owned farms in Tillamook County that prioritize animal welfare, whereas in reality, Tillamook sourced most of its milk from a large “factory farm” in eastern Oregon.

• According to plaintiffs, those misrepresentations led consumers to suffer economic harm by purchasing products at artificially inflated “premium” prices—i.e., higher prices than Tillamook’s products would have been able to command in the market in the absence of the false representations.

134

Sonja Bohr v. Tillamook County Creamery Association, 373 Or 343, 346, 567 P3d 413 (2025)

• Holding: Plaintiffs and members of the putative class were not required to plead that they had relied on the alleged misrepresentations to state a claim under their “price premium” and “illegal products” theories of ascertainable loss. The trial court erred by dismissing plaintiffs’ lawsuit at the ORCP 21 stage.

• Significance: This decision arguably makes it easier for plaintiffs to assert novel theories of UTPA violations and calls into question the continuing significance of “reliance” in UTPA class actions.

135

KKMH Properties, LLC v. Michael P. Shire, 373 Or 676, -- P3d -- (2025)

• The law: Under ORS 90.392, a landlord can terminate a rental agreement based on, among other things, a tenant’s material violation of the parties’ rental agreement.

• ORS 90.392 authorizes both “30-day” and “10-day” terminations.

• A termination can occur 30 days after delivery of a termination notice unless the violation that is the basis for termination is a repeat violation, in which case termination can occur 10 days after delivery of the notice.

• The termination notice must comply with a requirement in ORS 90.392(3)(c) that it state, in certain circumstances, that the violation can be cured.

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KKMH Properties, LLC v. Michael P. Shire, 373 Or 676, -- P3d -- (2025)

• The landlord delivered to tenant a “30-Day ‘For Cause’” notice, stating that the parties’ rental agreement would terminate based on the tenant’s material violation of the rental agreement—causing “extensive” property damage by “keeping and maintaining 277+ guinea pigs running ‘free range’” on the premises.

• The notice did not state that the violation could be cured.

• On the contrary, the notice stated that, because the damage to the premises would cost “tens of thousands of dollars” to repair and could not be repaired while the tenant remained on the premises, “no cure opportunity *** is available to you.”

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KKMH Properties, LLC v. Michael P. Shire, 373 Or 676, -- P3d -- (2025)

• After the tenant did not vacate the premises by the date specified in the notice, the landlord brought an eviction action against the tenant.

• The tenant moved to dismiss the action on the ground that the landlord’s termination notice was invalid because it did not comply with the requirement in ORS 90.392(3)(c) to state that the violation could be cured.

• The trial court denied the tenant’s motion to dismiss and thereafter awarded possession of the premises to the landlord, ruling that, in the circumstances of this case, ORS 90.392(3)(c) did not require the landlord’s termination notice to state that the violation could be cured.

• The tenant appealed, assigning error to the trial court’s denial of his motion to dismiss, and the Court of Appeals affirmed.

138

KKMH Properties, LLC v. Michael P. Shire, 373 Or 676, -- P3d -- (2025)

• Holding: Based on the TCL, the Court unanimously held that a termination notice under ORS 90.392(3)(c) must state that a violation can be cured when, as a matter of law, a tenant has a right to cure the violation.

• The Court further held that a tenant has a right to cure all violations that can be a basis for termination, except repeat violations that are the basis for “10day” terminations.

• The Court explained, a tenant has a right to cure any violation on which a “30day” termination is based, and, when that right exists, a termination notice is required to inform the tenant of that right.

• The Court held that, because landlord had proceeded with a “30-day” termination under ORS 90.392, tenant had a right to cure the violation, and landlord’s termination notice was invalid for failing to inform tenant of that right.

139

Mitch Langjahr v. Glorietta Bay, LLC,

340 Or App 594, 595, -- P3d -- (2025)

• Facts: Defendant appealed from a judgment granting plaintiffs a prescriptive easement over a corner of defendant’s property.

• The court granted the easement on the parties’ cross-motions for summary judgment based on its conclusion that a rebuttable presumption of adversity of use by plaintiffs applied to the case.

• On appeal, defendant argued that the presumption did not apply and that plaintiffs had not demonstrated the necessary adversity to obtain a prescriptive easement.

140

Mitch Langjahr v. Glorietta Bay, LLC,

340 Or App 594, 595, -- P3d -- (2025)

• Holding: The trial court erred in granting summary judgment to plaintiffs. The rebuttable presumption of adversity did not apply to the undisputed facts of the case, which involved plaintiffs’ use of an existing access path across defendant’s gravel lot, and plaintiffs did not otherwise present evidence of adversity.

• Significance: Although plaintiffs and defendant did not know each other personally, they were owners of neighboring lots and not “strangers” as that term is used in the case law. When the claimant and owner are neighbors, it is more reasonable to assume the use of an existing way is being made pursuant to a “friendly arrangement”—and therefore the presumption of adversity does not apply.

141

David Doumith v. Khalil Azar,

339 Or App 329, -- P3d -- (2025) • Facts: Defendants moved to dismiss based on the doctrine of forum non conveniens.

• The trial court initially denied the motion, but subsequently granted plaintiffs’ renewed motions to dismiss on the same basis.

• On appeal, plaintiffs argued the trial court committed reversible error by granting the renewed motions, failed to view plaintiffs’ allegations in the light most favorable to them, and abused its discretion in granting the motion.

142

David Doumith v. Khalil Azar,

339 Or App 329, -- P3d -- (2025) • Holding: The trial court did not err by revisiting its prior decision on forum non conveniens and granting the renewed motions. The Court explained: “[P]laintiffs have not identified any legal principle—either of general applicability or unique to the forum non conveniens doctrine—that would preclude the court from revisiting its prior rulings. * * * [W]e are unpersuaded that the court was somehow bound by its prior rulings, such that it could not revisit the forum non conveniens issue, including considering new evidence obtained in discovery since the original motions were filed.”

• Significance: Parties should not shy away from renewing previously denied motions, particularly where intervening circumstances and/or factual developments support putting the issue before the trial court for a second time.

143

Cathay Bank v. Hemstreet,

339 Or App 764, -- P3d -- (2025) •

Facts: Bank obtained a federal judgment against debtor, and subsequently registered that judgment in Mult Co. When debtor failed to pay, bank successfully moved the trial court for an order appointing a receiver over debtor’s various business entities.

Debtor appealed the appointment of a receiver. On appeal, bank argued that the Court of Appeals lacked jurisdiction because the order appointing a receiver was not an immediately appealable order under ORS 19.205.

•

Holding: Order appointing a receiver was immediately appealable under ORS 19.205(3), which provides that “[a]n order that is made in the action after a general judgment is entered and that affects a substantial right, *** may be appealed in the same manner as provided in this chapter for judgments.” The order appointing the receiver was made after the registration of the federal judgment in Oregon (i.e., made “after a general judgment [was] entered”) and affected a substantial right because it vested the receiver with control over debtor’s property interests and businesses.

144

Cathay Bank v. Hemstreet,

339 Or App 764, -- P3d -- (2025) •

Significance: Orders entered after the registration of a foreign judgment in Oregon are immediately appealable, so long as they “affect[] a substantial right.”

•

An order affects a substantial right if it exposes a litigant to further litigation and/or additional costs. See Bhattacharyya v. City of Tigard, 212 Or App 529, 534, 159 P3d 320 (2007) (an order affects a substantial right if the right is “something that is due to a person by just claim, legal guarantee, or moral principle * **.”); see also Lincoln Loan

Co. v. Estate of George Geppert, 307 Or App 213, 218 n 2, 477 P3d 7 (2020), rev den, 367 Or 826 (2021) (concluding that an order affected a substantial right because it exposed the appellant to further litigation and additional costs).

145

Patricia Anselmo v. Target Corporation, 340 Or App 21, -- P3d -- (2025)

• Facts: The plaintiff filed this lawsuit as PR for her deceased former husband’s estate seeking damages for alleged injuries that her husband sustained when the defendants’ agent allegedly falsely reported that he saw pornographic photographs of the husband with children on his smartphone.

• Three electronic devices, including an iPhone 6S, were seized from the husband and devices were analyzed by the FBI, which, after a number of months, determined that the devices did not contain any pornographic images involving children or otherwise.

• The devices were returned to the husband, and he was not arrested or charged with any crimes. The husband died several months later, and the FBI closed its file.

146

Patricia Anselmo v. Target Corporation, 340 Or App 21, -- P3d -- (2025)

• Plaintiff says MIFs existed on the question of intent—A jury could find that the defendant’s agent did not tell the truth about what he saw on the husband’s iPhone, casting the agent’s story about the amount of detail he observed as implausible and noting the FBI’s inability to find any pornographic images involving children on the seized devices. Her counsel additionally submitted an ORCP 47 E declaration, stating: “The estate has retained an expert whose opinions and facts create issues of fact and defeat summary judgment as to the issues raised [in] [the defendants’] motions, including the veracity of [the agent]’s accusations, whether his reporting was in good faith, and [the agent’s] potential statutory immunity.” Plaintiff argued that a jury could infer from the absence of pornographic images on the devices that [the agent]’s report to law enforcement was intentionally false.

147

Patricia Anselmo v. Target Corporation, 340 Or App 21, -- P3d -- (2025)

• In its ruling from the bench, the trial court stated: “With respect to the intentional infliction of emotional distress, I do find that there is not sufficient evidence of intent, that [the agent] intended or knew with substantial certainty that his false report would cause severe emotional distress.” The court issued an order to that effect and dismissed the IIED claim.

• The plaintiff appealed.

• On appeal, plaintiff asserted that the trial court erred in granting summary judgment on the IIED claim because there was a genuine issue of material fact regarding the intent behind defendants’ agent’s allegedly false reporting of seeing child pornography on the deceased’s phone.

148

Patricia Anselmo v. Target Corporation, 340 Or App 21, -- P3d -- (2025)

• Holding: The Court concluded that the trial court erred in failing to give plaintiff’s counsel’s ORCP 47 E declaration the consideration that it was due.

• According to the Court, the declaration, when taken at face value, created a genuine issue of material fact regarding what data was on the deceased’s phone, which could allow a reasonable juror to infer that the report regarding child pornography was intentionally false, something that the parties agree would qualify as outrageous conduct in support of the IIED claim.

• Significance: Trial courts have been instructed to give ORCP 47 E declarations more weight than trial courts previously thought.

149

Dailey v. University of Portland, 340 Or App 80, -- P3d -- (2025)

•

Facts: The plaintiff, a student enrolled in the defendant university’s Doctor of Nursing Practice degree program, withdrew from that program following a dispute with the defendant regarding graduation requirements.

•

The plaintiff brought an action against the defendant for BOC and negligence, seeking eco and ED damages.

•

The BOC claim centered around statements in three documents that the defendant provided to its students: a graduate nursing handbook, a general student handbook, and an online bulletin listing the defendant’s offerings. Each of those documents contained a disclaimer, each of which expressly provided that no statements contained in that document gave rise to contractual obligations.

•

The defendant moved for summary because even if the statements in its handbooks and online bulletin could give rise to contractual obligations in the absence of its disclaimers, the disclaimers prevented those statements from being converted into binding contractual obligations. The trial court granted the defendant’s motion.

150

Dailey v. University of Portland,

340 Or App 80, -- P3d -- (2025) (Kistler, J.)

Holding: The Court concluded that the trial court erred in granting summary judgment on plaintiff’s contract claim based on the disclaimer in the defendant’s bulletin.

• According to the Court, it was not clear on summary judgment that the defendant’s disclaimer was conspicuously or prominently displayed on the defendant’s website. The Court further concluded that the trial court did not err in granting summary judgment on plaintiff’s negligence claim because neither the regulations nor the common law on which the plaintiff relied gave rise to a special relationship that would permit the plaintiff to recover economic or emotional distress damages.

• Significance: Employers, including universities, should ensure that disclaimers are conspicuous or prominently displayed. This decision further bolsters the understanding that there is no special relationship between a student and a university.*

•

151

Alison K. Lavelle-Hayden v. Employment Department, 336 Or App 804, -- P3d -- (2024)

• Facts: This was this case’s second trip to the Court.

• In the first case, the claimant, a respiratory therapist at a hospital, sought a religious exemption from her employer’s COVID-19 vaccine requirement, but the employer denied the exemption and terminated her. She sought unemployment benefits, the Employment Appeals Board (EAB) denied her request, and the Court remanded because the EAB applied an incorrect legal standard in assessing whether the denial of unemployment benefits violated her rights under the Free Exercise Clause of the First Amendment to the United States Constitution.

• On remand, the EAB again upheld the denial of benefits because it determined that claimant’s beliefs were more likely than not secular or personal, instead of religious.

• The claimant appealed.

152

Alison K. Lavelle-Hayden v. Employment Department, 336 Or App 804, -- P3d -- (2024)

• Holding: The Court held that when considered under the legal standard articulated by SCOTUS , the uncontroverted evidence in the record would lead all reasonable factfinders to find that claimant’s objection to the vaccine rested on an “honest conviction” based on her religious principles.

• The EAB’s determination rested on a misapplication of the correct legal standard and on presumptions lacking a foundation in the factual record.

• The Court highlighted that neither the hospital nor the Employment Department appeared at the hearing; they also did not present any witnesses or evidence undermining the claimant’s testimony about her religious beliefs.

• The claimant, on the other hand, testified about her religious reasons for refusing the vaccine, including explaining parts of the Bible that informed her beliefs.

• Accordingly, the EAB’s order denying benefits is not supported by substantial evidence, and the claimant is entitled to an award of unemployment benefits.

153

Nour Eddine Mouktabis v. Clackamas County,

337 Or App 226, -- P3d --(2025)

• Facts: The pro se plaintiff going through bad divorce was arrested for allegedly violating a restraining order.

• He was arrested by WLPD. He was taken into custody and spent a night in jail.

• He was acquitted.

• Following his acquittal, the plaintiff filed a complaint against multiple defendants for the actions resulting in his arrest and multiple subsequent contentious encounters relating to his relationship with his now ex-wife where police became involved. As relevant here, the plaintiff asserted claims against OCPD and WLPD for false arrest, false imprisonment, and negligence.

154

Daniel B. Trainor v. Vigor Marine, LLC, 340 Or App 501, -- P3d --(2025)

•

Facts: Plaintiff appealed from a judgment of dismissal after the trial court granted summary judgment against his claim that defendant wrongfully discharged him in retaliation for testifying against defendant in a separate discrimination case.

Plaintiff contended that the trial court erred by granting defendant's motion for summary judgment finding no genuine issue of material fact that defendant had fired plaintiff in retaliation for testifying against defendant.

•

Holding: The trial court did not err in granting summary judgment to defendant, on the basis that there was no genuine issue of material fact that defendant had not fired plaintiff in retaliation for testifying against defendant. The undisputed material facts in the record established that defendant had re-hired plaintiff after he testified in the prior discrimination case, and plaintiff had committed multiple workplace violations leading to his termination.

155

Pacific Bio Products, LLC v. DEQ,

A186173, Order Granting Stay(2025) • In this judicial review proceeding, petitioner sought review of a final order issued by respondent Environmental Quality Commission, which upheld National Pollutant Discharge Elimination System Permit No. 101804 issued by the Oregon Department of Environmental Quality (DEQ) in 2022, with which petitioner is required to comply in order to continue operating its fish and shellfish processing plant in Warrenton, Oregon. Petitioner moved for and was denied a stay of the final order by DEQ, so sought a stay through the Court of Appeals.

• The Court of Appeals granted petitioner’s motion to stay because petitioner sufficiently established the existence of (1) a “colorable claim of error,” in that petitioner’s assignments of error on review were “substantial and nonfrivolous, or seemingly valid, genuine, or plausible.”; and (2) irreparable harm from the order, in that petitioner’s business would need to shut down.

156

Weston Twigg v. Admiral Insurance Company,

373 Or 445, -- P3d --(2025)

• Facts: Plaintiffs sued an insured contractor for breach of contract, and the insurance carrier denied coverage, arguing that, because the underlying cause of action against the contractor was for breach of contract, “‘property damage’ * * * caused by an ‘occurrence,’” under the policy, which was defined, in part, as an “accident,” had not occurred. The trial court granted summary judgment in favor of the insurance carrier, concluding that an “accident” sounds in tort, but plaintiffs had brought a breach-of-contract claim, so there was no coverage. The Court of Appeals affirmed • Holding: Whether an insurance claim seeks recovery for an “accident” does not depend on a plaintiff's pleading decisions in the underlying claim against the insured, but depends instead on whether there is a basis in fact for imposing tort liability. There were factual disputes material to whether such a basis existed, and the courts below erred.

157

Thank you!

158

MOODY FOR EVERYONE: UNIVERSAL CONCEPTS EVERY DEFENSE ATTORNEY SHOULD KNOW ABOUT INSURER NEGLIGENCE PER SE Presented By: Bryce Adams & Sean McKean

Saturday, June 14, 2025 10:45am - 11:45am 159

Moody for Everyone (Or: What Every OADC Attorney Should Know About Insurer Negligence Per Se) Presented by Bryce J. Adams, Shareholder, Bullivant Houser Bailey Sean D. McKean, Associate, Bullivant Houser Bailey 160

Hypothetical…

• You are appointed defense counsel for a business being sued for negligence, via its CGL insurer.

• Plaintiff later names the insurer as an additional defendant, claiming they negligently failed to promptly pay plaintiff’s pre-suit demand in violation of ORS 746.230(1)(f).

• Your client also wishes to add cross-claims against the insurer for not settling the claim pre-suit in violation of ORS 746.230(1)(h).

• The insurer demands an explanation for why they deserve to get sued under a statute governing first-party insurers…

• You Respond…

161

“Deserves got nothing to do with it.”

-C. Eastwood, Unforgiven • Moody’s impact has expanded beyond a niche insurance issue.

• OTLA is pushing Moody in every case involving insurers (even behind the scenes).

• Without more appellate rulings, there is no plaintiff’s downside.

• Seen as a tool for “escalating exposure” even when frivolous.

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What actually happened in Moody v. Oregon Community Credit Union…

In Dec. 2023, the Oregon Supreme Court affirmed that a widowed life insurance beneficiary could bring a common law negligence claim against her husband’s life insurer for emotional distress damages based on a standard of care found in Oregon’s Unfair Claim Settlement Practices Act (ORS 746.230)

Competing dicta on how far this goes: OADC: “Our decision in this case is a narrow one that applies and accords with the limiting principles that have guided our past decisions and does not unfairly expose defendants to liability that they could not have expected and guarded against[.]”

OTLA: “In undertaking to provide insurance benefits, an insurer not only undertakes to provide necessary financial resources but also undertakes to provide the peace of mind that comes with knowing that those resources will be promptly paid, alleviating emotional distress and avoiding further psychological harm.”

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How to (Not) Violate the UCSPA:

ORS 746.230(1) et seq: An insurer or other person may not commit or perform any of the following: • (a) Misrepresenting facts or policy provisions in settling claims • (b) Failing to act promptly on communications “relating to claims” (746.230(1)(b)) • (c) Failing to adopt/implement reasonable standards for prompt claim investigation

• (d) Refusing to pay claims w/o conducting a reasonable investigation “based on all available information” • (e) Failing to affirm/deny coverage within a reasonable time after proof of loss has been submitted • (f) Not attempting “in good faith” to “promptly and equitably” settle claims when liability “has become reasonably clear”

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Valid Moody Claims (OADC Cheatsheet) Definite Moody Claims A widow surnamed “Moody” seeking emotional distress damages from her husband’s life insurer following the death of her breadwinning husband in a freak accident.

Remember: “Our decision in this case is a narrow one that applies and accords with the limiting principles that have guided our past decisions and does not unfairly expose defendants to liability that they could not have expected and guarded against[.]”

Plausible Moody Claims • Life insurance benefits in general, especially for financially dependent beneficiaries • Denial of first-party dwelling benefits for core physical needs (food, shelter) • Failure to authorize necessary medical procedures

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Valid Moody Claims (OTLA Cheatsheet)

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Don’t Wait for the MSJ: Go for Dismissal (+) Dismissal

(-) Summary Judgment

• Vulnerable non-specialists copy/pasting weak NPS claims • Courts are showing disfavor for vague, formulaic pleadings • Preempts costs of discovery and mid-litigation motion practice • “Come to Jesus” re: opportunity costs of pushing a loser claim

• “Reasonableness” standard in UCSPA creates fact questions • Ditto: the subjective extent of emotional distress • Presupposes full discovery costs (depos, experts, etc.)

• Fewer good trial court decisions to use as persuasive authority 167

MTD Argument 1: Insufficient Statutory Allegations Generic OTLA-endorsed pleading:

Federal Counter-Argument:

• Defendant was negligent in one or more of the following ways: • Misrepresenting facts or policy provisions in settling claims; • Failing to adopt and implement reasonable standards for the prompt investigation of claims; • Refusing to pay claims without conducting a reasonable investigation based on all available information [… etc] → Without specific facts pled

Allegations in a complaint “may not simply recite the elements of a cause of action but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.”

Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

Oregon Counter-Argument: The Supreme Court has held that, “whatever the theory of recovery, facts must be alleged which, if proved, will establish the right to recover. It is no longer permissible to veil the facts or theory behind a nonfactual pleading and thereafter prove any state of facts which, historically, could support recovery[.]” Davis v. Tyee Industries, Inc., 295 Or. 467, 479, 668 P.2d 1186 (1983)

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MTD Argument 2: Lack of Severe Emotional Distress “Objective Analysis” will determine whether the Counter-Arguments • Philibert Rule: recoverable emotional violation causes S.E.D. • No elements given within Moody itself, so “objective” requires inferences from the facts: • The Court said Moody’s SED was foreseeable based on the relationship between the parties • The specific facts of the loss (tragic death) mattered for foreseeability.

• Moody SED = “Loss + Something Extra” • Was the loss itself an especially tragic event?

• Should the insurer have known this was a sensitive situation?

• When in Doubt: Standard But-For Causation Analysis 169

distress must be “the emotional equivalent of a physical injury,” not “an unavoidable and essential part of life to which every person may potentially be exposed.” 360 Or. 698, 708 (2016)

• Tomlinson Rule: a plaintiff cannot recover for “an underlying economic or property loss that predictably also results in emotional distress.”

Tomlinson v. Met. Pediatrics, 275 Or. App. 658, 682 (2015)

MTD Argument 3: No Violation of Protected Interest Moody’s PoliSci 101 Component…

• You do not have an interest in being free of annoyance, BUT… • Personal interests may acquire legal protections when they hit larger societal goods: food, shelter, security.

• Ask: did the insurer’s actions imperil a greater societal concern for the insured’s wellbeing as a recipient of social services?

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Where Social Services Likely Aren’t at Stake: • Common auto accidents • Damage to non-essential personal property • Most types of noncriminal wrongdoing • Impaired business activities

Six(ish) Takeaways…

1. Moody simply means you can sue an insurer for emotional distress by alleging negligent claim handling per ORS 746.230.

2. OTLA is testing this rule to see how attenuated the plaintiff/insurer relationship may be to have Moody “stick.”

3. Assume Moody claims are weak, especially with generalist personal injury attorneys.

4. Attack weak Moody claims with Motions to Dismiss arguing: 1. No statutory violation occurred 2. No significant emotional distress was suffered 3. No protected interest was violated 5. Try things! We’re all making this up as we go along.

6. Remember: until a high court says otherwise…

THIS RULING IS A NARROW ONE

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LIGHTNING ROUND - TRIAL LESSONS LEARNED THE HARD WAY Presented By: Heather Bowman, Megan Cook, Kirsten Curtis, Sharlei Hsu, & Dan Larsen

Saturday, June 14, 2025 12:00Pm - 1:00Pm 172

OADC Convention Lightning Round Discussion Trial Lessons Learned the Hard Way Presenters: Heather Bowman, Megan Cook, Kirsten Curtis, Dan Larsen and Sharlei Hsu Megan Cook: Opposing the 11th hour amendment: tips for maintaining a written record, navigating procedural issues, and preserving dispositive motions.

Kirsten Curtis: This presentation will cover mistakes and insight gathered during my many bench and jury trials over the years, told through anecdotes and short stories. Tips will include: -

Be friendly but trust no one.

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Make sure the judge remembers that you’re there.

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Ask ahead of time about bringing in snacks.

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Get your Multnomah County fast pass weeks before trial.

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You really don’t need hard copies.

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Underestimate the amount of time per day you’ll actually be trying your case.

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Get more alternates than you think you’re going to need.

Dan Larsen: No case is a slam dunk. Cases are a mixture of perspectives and change shape depending on the view of the facts. Your goal is to learn all the facts to fully understand all the facets and advocate accordingly. You have to know the good, the bad, and the ugly. Trust your client but be sure to not let facts be filtered or withheld. Your client has a perspective, as does the other side, but the truth for a decision maker generally lies somewhere in the middle. Be skeptical until you feel confident you understand what happened and why, then you can advocate most eSectively.

Sharlei Hsu: My presentation will revolve around how to leverage vendor and appellate counsel resources for trial, including use of jury consultants, trial techs, cautionary tales about vetting demonstrative exhibits, and working in tandem with appellate counsel to tee up issues for appeal and making sure you have the most favorable record possible for preservation of substantive and procedural issues.

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