and submitted April 12, 2018
Multnomah County Circuit Court 121216633; Thomas M. Christ,
Judge pro tempore.
Payne argued the cause for appellant. Also on the opening
brief was Shenoa Payne Attorney at Law PC. Also on the reply
brief was Richardson Wright, LLP.
Lindsey H. Hughes and George S. Pitcher argued the cause for
respondents. Also on the joint brief were Hillary A. Taylor,
Keating Jones Hughes, P.C., Rachel A. Robinson, and Lewis
Brisbois Bisgaard & Smith LLP.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
appeals the trial court's dismissal of her complaint with
prejudice after it granted defendants' motions for
summary judgment on the ground that plaintiff failed to
submit an affidavit from an expert who was available and
willing to testify that the doctor's conduct failed to
meet the standard of care. Plaintiff assigns error to the
trial court's grant of defendants' motions for
summary judgment and its refusal to allow her to amend her
proposed affidavit in opposition to the motions for summary
judgment. Held: The trial court did not err.
Plaintiff never specifically explained what additional
documents she had that she could file at the hearing that
would allow her to meet her burden. Additionally, the trial
court had already given plaintiff additional time to file her
[298 Or.App. 455] response and had made it clear to plaintiff
that it would not allow any additional postponements.
Or.App. 456] LAGESEN, P. J.
medical malpractice action, plaintiff alleges that defendant
Roberts, a doctor, negligently failed to diagnose her with
deep vein thrombosis, resulting in the impairment of her left
leg, causing economic and noneconomic damages. Plaintiff also
alleges defendant Providence Milwaukie Hospital is
vicariously liable for that alleged negligence. The trial
court dismissed the complaint with prejudice after granting
defendants' motions for summary judgment on the ground
that plaintiff failed to submit an affidavit from an expert
who was available and willing to testify that Roberts's
conduct failed to meet the standard of care. We affirm.
pertinent facts are procedural. Plaintiff filed this action
in December 2012. She was represented by counsel at the time.
Defendants each moved for summary judgment on the ground
that, among other things, plaintiff would be unable to come
forward with sufficient evidence to give rise to a genuine
dispute of material fact on her negligence claim because, in
their view, she would be unable to find a medical expert who
would testify that Roberts's conduct breached the
applicable standard of care or that any negligence on his
part caused plaintiffs injuries. In response, plaintiff,
through counsel, submitted an ORCP 47 E affidavit in which
plaintiffs counsel certified that "plaintiff has
retained an expert witness who is qualified, willing and
available to testify to admissible facts or opinions that
would create a question of fact as to the issues raised"
by defendants' motions. Defendants then alerted the court
by letter that "the issues raised in defendants'
motions have now been resolved and a hearing is no longer
thereafter, the trial court reset the scheduled trial date
from August 25, 2014, to August 3, 2015. In March 2015,
plaintiffs counsel moved to withdraw because family
caregiving obligations precluded him from continuing to
represent plaintiff. Plaintiff consented to the withdrawal,
and the court allowed the motion. Plaintiff then moved to set
over the trial. Plaintiff represented that she had spoken
with an attorney in Seattle "who has indicated that he
would represent me but only if there were a setover [298
Or.App. 457] of the trial date." The court granted the
motion, setting trial for August 22, 2016.
December 2015, counsel for defendant Roberts contacted the
Seattle lawyer who plaintiff had said she planned to retain.
That lawyer stated that he was still evaluating whether to
take the case and that defendants should consider plaintiff
to be unrepresented. Defendants then renewed their summary
judgment motions. Defendant Roberts contended that there was
reason to believe that plaintiff no longer had an expert
witness to support her claim. Defendant Providence also
pointed out that, because plaintiff was not represented by
counsel, under Due-Donohue v. Beat, 191 Or.App. 98,
80 P.3d 529 (2003), plaintiff could not rely on an ORCP 47 E
affidavit to create a factual dispute on a matter for which
expert testimony was required. Instead, defendants asserted,
plaintiff "must present actual admissible evidence from
a qualified medical expert to show that defendants violated
the standard of care and that, but for defendants'
negligence, she would not have suffered the alleged
trial court scheduled a hearing on the motions for January
21, 2016. Plaintiff did not file a response to the motions
before that date. At the hearing, plaintiff requested a
setover of the hearing, again representing that she planned
to retain the Seattle lawyer "on Saturday
afternoon." Defendants objected to the postponement,
argued that plaintiff had not demonstrated good cause, and
pointed out that the case had been going on for more than
three years. The trial court ruled that "a limited
postponement of the hearing on these motions is appropriate
under the circumstances" and reset the hearing for March
16. The court then told plaintiff that there would be no
further postponements and that, "in advance of that
hearing, you will have to respond in writing to the motions
if you want to defeat them." The court further explained
to plaintiff that she, or any lawyer she retained, needed to
comply with all rules of procedure. It then set February 21,
2016, as the date for plaintiffs written response to the
motions for summary judgment and stated that defendants could
file replies "in the usual course."
Or.App. 458] Plaintiff did not retain the Seattle lawyer by
the time of the next hearing. In response to defendants'
motions, she filed a "Motion to Dismiss Summary
Judgment," representing that she would call "Dr.
Hany Atallah to testify to all elements of cause of action of
medical malpractice." She attached a copy of a letter
from Dr. Atallah addressed to
"MedExpertwitness.com, Inc." in which
Atallah expressed an opinion that defendants "deviated
from the acceptable standards of care in their medical care