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Summerfield v. Oregon Liquor Control Commission

Court of Appeals of Oregon

October 17, 2018

Gene SUMMERFIELD, Plaintiff-Appellant,
v.
OREGON LIQUOR CONTROL COMMISSION, Defendant-Respondent.

          Argued and submitted September 7, 2016

          Clackamas County Circuit Court CV12100185; Katherine E. Weber, Judge.

          Michael E. Rose argued the cause and fled the briefs for appellant.

          Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before DeVore, Presiding Judge, and Garrett, Judge, and James, Judge. [*]

         Case Summary: Plaintiff appeals in this employment discrimination case. At trial, the trial court excluded the testimony of a witness plaintiff intended to call. Plaintiff assigns error to that ruling. Held: Plaintiff failed to demonstrate that the trial court erred. The parties disputed below several questions of admissibility of the testimony, including whether the evidence met criteria for admission as scientific evidence. On appeal, plaintiff suggested instead that the evidence was nonscientific. Because he failed to raise a preserved challenge to that basis for the trial court's ruling, the ruling must be affirmed. The Court of Appeals rejected plaintiff's other assignments of error.

          [294 Or.App. 416] DeVORE, P. J.

         Plaintiff appeals the judgment in which a jury rejected his employment discrimination and retaliation claims, and found for plaintiff on a whistleblowing claim, but awarded no damages. We address plaintiff's third assignment of error to explain the basis on which we resolve it, and we reject without written discussion his other assignments of error. In the third assignment, plaintiff argues that the trial court erred by excluding expert testimony that plaintiff intended to offer. Defendant, the Oregon Liquor Control Commission (OLCC), disputed the admissibility of the testimony on a variety of grounds. We conclude that, to the extent that plaintiff raises a new argument on appeal that the testimony was nonscientific, that argument was not preserved below and we conclude that, although plaintiff asserted below that the testimony met the criteria for admissibility as scientific evidence, that argument was not pursued and developed on appeal. We affirm.

         We recount the procedural facts that are relevant to our resolution of this assignment of error. Plaintiff was employed as a warehouse worker by OLCC. He brought against OLCC claims including racial discrimination and hostile work environment, retaliation, whistleblowing, racial intimidation, and failure to reemploy. OLCC subsequently terminated his employment.

         During plaintiffs case-in-chief, he sought to call Dr. Curry-Stevens, a social scientist, as an expert witness. OLCC challenged the admissibility of her testimony on the basis that she was not qualified as an expert, that the evidence was not relevant or helpful to the jury, and that there was an insufficient scientific foundation for her testimony. Curry-Stevens testified during a hearing conducted pursuant to OEC 104. Both parties provided briefing, following the framework established for admission of scientific evidence in State v. Brown, 297 Or. 404, 687 P.2d 751 (1984), and State v. O'Key, 321 Or. 285, 899 P.2d 663 (1995). At the conclusion of the hearing, the trial court excluded Curry-Stevens's testimony. The court stated, "I think her testimony is clearly inadmissible and I'm not going to allow it."

         [294 Or.App. 417] Plaintiff presented, as part of his case, the testimony of his treating psychologist concerning detrimental effects that he suffered in relation to his claims. In its defense case, OLCC called an expert witness, Dr. Heck, to rebut plaintiff's evidence of harmful psychological effects he had suffered. After that testimony, plaintiff again sought to call Curry-Stevens as an expert witness, arguing that her testimony was relevant to explain or rebut aspects of Heck's testimony. The trial court accepted an offer of proof indicating what Curry-Stevens's testimony would have been. Plaintiff argued that the evidence would be relevant and helpful to the jury, and that Heck's testimony had "opened the door." OLCC again opposed admission of the testimony, and the trial court adhered to its earlier ruling that it would not be admitted.

         Ultimately, the jury found for plaintiff on his whistle-blowing claim but awarded no damages, while it found for OLCC on the remaining discrimination and retaliation claims. The trial court entered judgment dismissing all claims.

         On appeal, plaintiff assigns error to the trial court's exclusion of Curry-Stevens's testimony. He argues that her testimony was relevant, would have been helpful to the jury, and should have been admitted as expert testimony under OEC 702. Plaintiff suggests that the evidence was nonscientific and, therefore, not subject to the reliability factors applicable to scientific evidence. OLCC argues, among other things, that the trial court correctly excluded Curry-Stevens's testimony because plaintiff failed to establish its scientific validity under Brown and O'Key.

         Because plaintiff sought to call Curry-Stevens as an expert witness, the admission of her testimony as an expert is ...


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