Philip C. LANG, personal representative of the Estate of Ruth M. Miller, Petitioner on Review,
ROGUE VALLEY MEDICAL CENTER/ASANTE; Alison Savage, M. D.; and Cancer Care of Southern Oregon, LLC, Respondents on Review.
and submitted January 10, 2017.
appeal from Court of Appeals (CC 113198L2; CA
L. Moro, Medford, argued the cause and fled the brief for
petitioner on review.
Lindsay H. Hughes, Portland, argued the cause for respondents
C. Landis, Portland, and Casey S. Murdock, of Frohnmayer,
Deatherage, Jamieson, Moore, Armosino & McGovern, PC,
Medford, fled the brief for respondents on review.
Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer,
Nakamoto, and Flynn, Justices. [**]
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.
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
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.
FACTS AND PROCEDURAL HISTORY
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.
brought this action on behalf of Miller's estate against
Savage and Rogue Valley Medical Center.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.
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.
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.
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."
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. 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
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. 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
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."
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
following colloquy then occurred, which turns out to be
critical to the trial court's later decision to dismiss
"[DEFENSE COUNSEL]: Your Honor, should the order provide
"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."
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."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."
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. 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 ...