Dixie L. TAYLOR, as Personal Representative for the Estate of Irma J. Taylor, Deceased, Plaintiff-Respondent,
PORTLAND ADVENTIST MEDICAL CENTER, an Oregon corporation, Defendant-Appellant
Argued and Submitted January 14, 2015.
Multnomah County Circuit Court 070505420. Eric J. Bergstrom, Judge.
Hillary A. Taylor argued the cause for appellant. With her on the opening brief were Lindsey H. Hughes and Keating Jones Hughes, P.C. With her on the reply brief was Keating Jones Hughes, P.C.
Robert Beatty-Walters argued the cause and filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[269 Or.App. 152] GARRETT, J.
Plaintiff, who is the personal representative of her mother's estate, brought this action against defendant for wrongful death. The case involves allegations of medical negligence, including negligent discharge of plaintiff's mother from the hospital without proper diagnosis or treatment. The case has been tried to a jury three times. Each trial has resulted in a hung jury. After plaintiff asked the trial court to schedule a fourth trial, defendant objected and moved for a judgment of dismissal. The trial court denied tat motion; defendant appeals. For the reasons that follow, we conclude that we lack jurisdiction and dismiss the appeal.
After defendant filed its notice of appeal, the Appellate Commissioner issued an order to show cause as to why the appeal should not be dismissed for lack of jurisdiction. Defendant's notice of appeal stated that the trial court's order was appealable under ORS 19.205(2), which provides, " An order in an action that affects a substantial right, and that effectively determines the action so as to prevent a judgment in the action, may be appealed in the same manner as provided in this chapter for judgments." The Appellate Commissioner's order to show cause noted that ORS 19.205(2) appeared to be inapplicable: " The order being appealed was entered before entry of a general judgment. It is not clear, however, that the order affects a substantial right and, in any event, the order does not appear to prevent entry of judgment."
In response to the order to show cause, defendant argued that, under the " extremely unusual procedural posture" of this case, in which three mistrials have already occurred because of the jury's inability to reach a
verdict, the trial court's order denying defendant's motion to dismiss is tantamount to " a decision that this litigation can be perpetuated indefinitely by plaintiff with no recourse or relief for defendant." Defendant cited the expense and burden of the first three trials and argued that there is no reason to think that a fourth trial will yield a different result. Thus, defendant argued, the order is appealable because it " affects defendant's rights and exposes it to the expense of further litigation while preventing it from achieving finality despite [269 Or.App. 153] having endured three trials already." Defendant also argued that the trial court's order " effectively determines this action so as to prevent a judgment by requiring perpetual retrials without a reasonable expectation of achieving finality."
After defendant submitted its response to the order to show cause, the Appellate Commissioner issued an order stating that, " under the unusual circumstances of this case, the trial court's order does affect the parties' substantial rights and, in effect, prevents entry of judgment, at least for the reasonably foreseeable future." The order directed the parties to proceed with the appeal.
On the merits of the appeal, defendant makes a variety of arguments as to why the trial court erred in denying defendant's motion to dismiss. Many of defendant's arguments echo those made to the Appellate Commissioner as to why appellate jurisdiction exists. Defendant argues principally that to allow plaintiff another trial after three mistrials is a violation of defendant's own jury trial right and that the trial court has the authority, which it should have exercised, to prevent that violation from happening. Plaintiff responds that the Appellate Commissioner's ruling on jurisdiction was incorrect and that we should dismiss this appeal. Plaintiff also argues that, even if we have jurisdiction, the trial court committed no error in determining that it lacked authority to dismiss plaintiff's case.
Because no judgment has been entered, the trial court's order is appealable, if at all, only under ORS 19.205(2). That provision allows a party to appeal an order that " affects a substantial right, and that effectively determines the action so as to prevent a judgment in the action." The Appellate Commissioner concluded that the trial court's order denying defendant's motion to dismiss affected the parties' substantial rights and " prevents entry of judgment, at least for the reasonably foreseeable ...