and submitted September 7, 2016
Clackamas County Circuit Court CV12100185; Katherine E.
Michael E. Rose argued the cause and fled the briefs for
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
DeVore, Presiding Judge, and Garrett, Judge, and James,
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.
Or.App. 416] DeVORE, P. J.
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.
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.
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."
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.
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.
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
plaintiff sought to call Curry-Stevens as an expert witness,
the admission of her testimony as an expert is ...