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Lang v. Rogue Valley Medical Center/Asante

Supreme Court of Oregon

June 2, 2017

Philip C. LANG, personal representative of the Estate of Ruth M. Miller, Petitioner on Review,
v.
ROGUE VALLEY MEDICAL CENTER/ASANTE; Alison Savage, M. D.; and Cancer Care of Southern Oregon, LLC, Respondents on Review.

          Argued and submitted January 10, 2017.

         On appeal from Court of Appeals (CC 113198L2; CA A158182;).[*]

          Tonia L. Moro, Medford, argued the cause and fled the brief for petitioner on review.

          Lindsay H. Hughes, Portland, argued the cause for respondents on review.

          David C. Landis, Portland, and Casey S. Murdock, of Frohnmayer, Deatherage, Jamieson, Moore, Armosino & McGovern, PC, Medford, fled the brief for respondents on review.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, Nakamoto, and Flynn, Justices. [**]

          [361 Or. 488] Case Summary: The trial court dismissed plaintiff's wrongful death action under ORCP 54 B, based on findings that (1) plaintiff had willfully failed to comply with an oral order from the bench to file a motion for leave to file a third amended complaint within 10 day; (2) plaintiff had acted in bad faith by asserting that, under a rule of civil procedure, ORCP 15, the motion could be filed within 10 days of the date the written order was served on plaintiff; and (3) the sanction of dismissal was just because plaintiff's failure to comply with the order from the bench was his second successive willful failure to comply with a court order. Plaintiff unsuccessfully appealed, and then sought review, arguing that (1) because the trial court's oral order in fact had not required him to move for leave to file an amended complaint within 10 days of the oral order, he had not willfully failed to comply with the court's order by filing his motion some 14 days after the oral order; and (2) the trial court was required, but failed, to consider whether dismissal was just in light of other available sanctions, and its explanation as to why the sanction of dismissal was just could not be reconciled with the record. Held: Plaintiff did not willfully violate the trial court's oral ruling by moving for leave to file an amended complaint 14 days after the oral order, and the trial court's explanation for imposing the sanction of dismissal, instead of some lesser sanction, was contradicted by one of its earlier rulings.

         The decision of the Court of Appeals and the judgment of the circuit court are reversed. The case is remanded to the circuit court for further proceedings

          [361 Or. 489]

          KISTLER, J.

         Pursuant to ORCP 54 B(1), the trial court dismissed plaintiff's wrongful death action because it found that plaintiff's counsel willfully failed to comply with two court orders and that, as a result, dismissal was an appropriate sanction. The Court of Appeals affirmed the resulting judgment without opinion. Lang v. Rogue Valley Medical Center, 276 Or.App. 610, 369 P.3d 450 (2016). We allowed plaintiffs petition for review to clarify the standard that applies when a trial court dismisses an action pursuant to ORCP 54 B(1) for failing to comply with a court order. We now reverse the Court of Appeals decision and the trial court's judgment and remand this case to the trial court.

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff is the personal representative of the estate of Ruth Miller. In 2001, Miller was diagnosed with multiple myeloma. Seven years later, in 2008, she executed an advance directive, naming plaintiff as her health care representative. Dr. Savage is an oncologist, who began treating Miller in July 2008. On July 31, 2008, Savage saw Miller, who "complained of weakness, loss of appetite, the inability to eat, [and] increasing dehydration and anorexia." The next day, on August 1, Miller was admitted into Rogue Valley Medical Center, where she died that night.

         Plaintiff brought this action on behalf of Miller's estate against Savage and Rogue Valley Medical Center.[1]His second amended complaint alleged that Miller was not capable of making medical decisions when she was admitted into Rogue Valley Medical Center on August 1. According to the complaint, when defendants admitted Miller, they listed her as "Do Not Resuscitate" and provided her with only palliative care instead of following plaintiff's directions to insert a feeding tube and to take other measures to reverse Miller's deteriorating condition. Following Miller's death, plaintiff filed this action asserting claims for wrongful death, negligence, medical malpractice, abuse of a vulnerable person, and violation of ORS 124.100.

          [361 Or. 490] Defendants moved for summary judgment. In support of their motions, they submitted evidence that, when Miller was admitted to the hospital on August 1, 2008, they reasonably determined that she was capable of making her own health care decisions, that she did not want to be resuscitated, that a feeding tube had been inserted but had been removed later at Miller's request, and that their treatment of her was medically appropriate given Miller's decisions. Alternatively, they argued that some of plaintiff's claims should be stricken and that the court should grant partial summary judgment on other claims.

         On January 8, 2013, the trial court denied defendants' summary judgment motions to the extent those motions turned on whether the care that defendants had provided Miller on August 1 was medically reasonable given their determination of her capacity to make decisions. The court struck plaintiff's claims for abuse of a vulnerable person and for violation of ORS 124.100, and it granted partial summary judgment on other claims.

         The trial on the remaining claims was set for approximately a month later, on February 4, 2013. However, on January 25, 2013, the trial court entered an order vacating the February 4 trial date because plaintiff had become ill. Additionally, plaintiffs counsel had advised the court that he needed to depose three witnesses, and the court's January 25, 2013 order provided that "[d]iscovery will proceed" and that "[p]laintiff may draft and tender to the court a motion seeking leave to file a third amended complaint upon completion of discovery."

         A little more than a year later, plaintiff moved for leave to file a proposed third amended complaint. The proposed complaint added new factual allegations as well as a punitive damages claim.[2] Defendants objected to the new allegations, and the trial court held a hearing on April 14, 2014, to resolve those objections. Defendant Savage contended that the new allegations did not result from the [361 Or. 491] additional discovery that plaintiff had done, that plaintiff should have included those allegations earlier, and that it was too late to expand the claims in the complaint without some justification for the delay. In response, plaintiff's counsel acknowledged that he had taken only one deposition between January 25, 2013 (when the trial court postponed the February 4, 2013 scheduled trial date) and April 14, 2014 (when plaintiff's motion for leave to file the proposed third amended complaint was considered). Plaintiff did not identify any information that he had learned during that deposition that justified adding the new allegations.

         Defendant Rogue Valley Medical Center raised a more technical objection. As it construed the trial court's January 25, 2013 order and ORCP 15, those sources, read together, required "that the motion for leave to file [an] amended pleading was due ten days after the completion of discovery" on October 8, 2013.[3] Given that conclusion, Rogue Valley's counsel argued that the motion for leave to file the proposed third amended complaint should have been filed by October 18, 2013, that the proposed complaint was several months late, and that the motion for leave to file the complaint should be denied for that reason. The trial court declined to adopt what it described as Rogue Valley's "creative" argument. The court explained that it "underst[oo]d that you're looking for ways to short-circuit this a bit, but in reality, it's not necessarily black and white." The court reasoned that "[i]t should have been in the [January 25, 2013 order] to that effect if I was going to order that" the proposed complaint be filed within 10 days of completing discovery.

         Although the trial court declined to find that plaintiff's motion for leave to file an amended complaint was [361 Or. 492] untimely, as Rogue Valley argued, it expressed concerns regarding the new allegations that plaintiff had added. It ruled that plaintiff had failed to allege sufficient facts to add a punitive damages claim and that the proposed third amended complaint pleaded evidence rather than ultimate facts. The court then admonished plaintiffs counsel:

"This particular case was three weeks away from trial when we postponed the trial. In no way, shape, or form was I envisioning a revisitation, to this extent, of the pleadings when we had [the] second amended complaint attacked. I envisioned that you would clean this thing up, you'd go forward, and we'd have a trial date. And this keeps, basically, growing exponentially every time you come in here. Discovery doesn't even begin to explain all these allegations you've got in here, that I don't understand why they weren't here before. Now, if you'd had a lot of depositions that occurred since that trial [date] until now, that would be different. But that-no one has said that."

         The court explained that the "next time you do this, send a copy of the proposed [complaint] to [defense counsel]. Get a response from them, and then put your heads together, and figure out if you can come up with something that will work."

         The following colloquy then occurred, which turns out to be critical to the trial court's later decision to dismiss plaintiffs action:

"[DEFENSE COUNSEL]: Your Honor, should the order provide that Plaintiff-
"THE COURT: Ten days.
"[DEFENSE COUNSEL]: -has-may file a motion to file a next amended complaint in conformity with the Court's order on the-the Court's order on the motions for summary judgment against the second amended complaint?
"THE COURT: Yes, that should be in the order."

         The next day, on Tuesday, April 15, counsel for Rogue Valley sent a copy of a proposed order to plaintiffs counsel. The proposed order denied the motion to amend to the extent that it added new allegations of fact, new allegations of negligence, and a claim for punitive damages. It directed plaintiff to move for leave to file a (new) proposed [361 Or. 493] third amended complaint that conformed to the trial court's summary judgment ruling "[w]ithin ten days of the Court's order from the bench at the conclusion of oral argument."[4]Finally, the proposed order stated that, within the same time period, "[p]laintiff may file a motion for an order granting leave to file an amended complaint which adds new allegations of facts and new allegations of negligence."

         The cover letter accompanying the proposed order stated: "Please advise if either of you have any objection [to the proposed order]. Otherwise, I will send [the proposed order] to the Court on Friday [April 18]." Plaintiff's counsel did not notify Rogue Valley's counsel by Friday, April 18, of any objection to the proposed order. However, on Friday, plaintiff's counsel confirmed by email that he had received the proposed order and said that he would get back to Rogue Valley's counsel over the weekend. Rogue Valley's counsel did not hear from plaintiff over the weekend. On Tuesday, April 22, Rogue Valley's counsel submitted the proposed order to the court.[5] The next day, plaintiff's counsel sent Rogue Valley's counsel an email stating, "I think this is fine, but the ten days to refile ...


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