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Gardner v. Oregon Health Sciences University

Court of Appeals of Oregon

September 11, 2019

Kazuko Arai GARDNER, Personal Representative of the Estate of Jacqueline S. Mahoney, Plaintiff-Appellant,
v.
OREGON HEALTH SCIENCES UNIVERSITY, a public corporation; Marvin D. Fickle, M.D., an individual;and Jennifer Shay, an individual, Defendants-Respondents.

          Argued and Submitted March 15, 2019

          Multnomah County Circuit Court 15CV02134; Judith H. Matarazzo, Judge.

          Gregory Kafoury argued the cause for appellant. Also on the briefs were Mark McDougal and Kafoury & McDougal.

          Janet M. Schroer argued the cause for respondents Oregon Health Sciences University and Marvin D. Fickle, M.D. Also on the brief was Hart Wagner, LLP.

          Jay W. Beattie argued the cause for respondent Jennifer Shay. Also on the brief were Thomas McDermott, Katie Eichner, and Lindsay Hart, LLP.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.

         Case Summary: After the decedent's suicide, plaintiff, the personal representative of the estate, brought this wrongful death action against the decedent's mental-health providers. Plaintiff appeals a judgment of dismissal and award of costs, assigning error to the trial court's denial of a motion in limine, allowing consideration of the decedent's comparative fault. Plaintiff also assigns error to the denial of a motion for a new trial based on remarks in a defendant's closing argument. Held: (1) Oregon has no per se rule against comparative fault in cases involving outpatient suicide. The permissibility of the defense depends upon the [299 Or.App. 281] nature of the allegations of comparative fault. Defendants' allegations that decedent interfered or impaired treatment were permissible. The trial court did not err in denying plaintiff's motion in limine. (2) An objection to remarks in defendant's closing argument was sustained, not overruled, and no further relief was requested. Plaintiff made no objection to the other remarks. The trial court did not err.

         [299 Or.App. 282]DeVORE, J.

         After the decedent's suicide, plaintiff, the personal representative of the estate, brought this wrongful death action against the decedent's mental-health providers. Plaintiff now appeals a general judgment of dismissal and award of costs, assigning error to the trial court's decision to deny a motion in limine and to allow consideration of the decedent's comparative fault. Plaintiff also assigns error to the denial of a motion for a new trial. With respect to the first assignment of error, we conclude that Oregon has no per se rule against comparative fault in cases involving outpatient suicide. Plaintiffs second assignment of error presents no reversible error. Accordingly, we affirm.

         The relevant facts are not disputed. The decedent was receiving mental-health treatment from defendants, a psychiatrist and a licensed clinical social worker, at Oregon Health & Science University (OHSU). After the decedent took her life by firearm, her estate brought this wrongful death action, asserting that defendants knew she had purchased a gun and had expressed the intent to commit suicide, but negligently failed to take a number of preventative steps. Specifically, the complaint alleged that defendants failed to adequately obtain and consider the decedent's history, ensure removal of the gun from her possession, hospitalize her, or develop and implement a safety plan.

         Defendants raised the affirmative defense of comparative fault, arguing that the decedent's death resulted from her own actions, including: denying and withholding the true nature and extent of her suicidality and suicide plans; declining voluntary commitment to a mental treatment facility or intensive outpatient therapeutic unit; denying that she would use the gun to commit suicide; refusing to notify her mother about the gun or consent to notification; and failing to return the gun or give it to her mother. In a motion in limine, plaintiff moved to exclude any reference to that defense, arguing that, as a matter of law, "contributory negligence does not apply in suicide cases," and asserting that similar reasoning applied to comparative fault. The court denied that motion.

         [299 Or.App. 283] At trial, plaintiff called an expert witness who testified to OHSU's negligence. In closing argument, defense counsel made disparaging comments about that plaintiffs witness:

"[DEFENSE COUNSEL]: The law is very clear in this state. I don't care what [plaintiffs witness] says, you can't just go be a cowboy. One of the reasons he probably isn't at OHSU anymore.
"[PLAINTIFF'S COUNSEL]: Objection, Your Honor.
"THE COURT: Sustained.
"[DEFENSE COUNSEL]: The law in this state is very clear. ***
"And the criteria is defined by the Oregon Health Division to mean imminently dangerous. *** That doesn't mean you get to hold them against their will indefinitely any time you want to act like a cowboy and put them in an institution. Doctors don't get to do that to us because we have legal rights."

         Plaintiff raised no further objection, but later responded to defense counsel's statements during rebuttal:

"[PLAINTIFF'S COUNSEL]: So what's the attack on [plaintiffs witness]? That's why he was doing this, he's a cowboy. That's probably why he's not at OHSU. You represent OHSU. If you have any evidence of why he's not there or you've got dirt against him, you've been a lawyer for a long, long time. You know how-
"[DEFENSE COUNSEL]: Your Honor, I could have brought the ...

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