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Kahn v. Pony Express Courier Corp.3/14/2001
Argued and submitted October 13, 2000.
BREWER, J.
Affirmed.
In this wrongful death action, defendants Pony Express Courier Corporation (Pony Express) and William S. Colton appeal a judgment entered after a jury returned a verdict for plaintiff, the personal representative of the estate of decedent Corinne Tabert. Tabert died, and her seven-year-old daughter was severely injured, as a result of being struck by a delivery van owned by Pony Express and driven by Colton. Defendants admitted fault, and the case was tried as to damages only. The jury awarded plaintiff economic damages of $56,210 for the loss of Tabert's services to her daughter and $15,613.80 for the loss of Tabert's monetary support of her daughter. It also awarded plaintiff non-economic damages of $10,000 for Tabert's pain and suffering before her death and $850,000 for the daughter's loss of Tabert's society and companionship. Pursuant to ORS 18.560, imposing a $500,000 limitation on non-economic damages, the trial court reduced the verdict by $360,000 and entered judgment for plaintiff for $571,822.80 plus costs.
On appeal, defendants argue that the trial court erred in denying their motion to compel production of records of the State Office for Services to Children and Families (SCF), if any, in the possession of plaintiff's legal counsel. Defendants also argue that the court erred in granting plaintiff's motion in limine to exclude evidence of or reference to records of the Montana Department of Family Services (DFS). They next argue that the trial court erred in allowing an expert witness to testify as to what another expert told him in an out-of-court conversation. Finally, they argue that the trial court erred in instructing the jury that the daughter's loss of Tabert's services was an element of plaintiff's economic damages. We affirm.
We begin with defendants' assignment of error relating to SCF records, if any, in the possession of plaintiff's counsel. Before trial, defendants moved to compel production of the records from plaintiff, including information SCF may have received from out-of-state social service agencies, asserting that they contained information about Tabert's marriages, her possible substance abuse problems, and her relationship with her daughter. The trial court denied the motion.
On appeal, defendants contend that the records were relevant to the issue of the relationship between Tabert and her daughter, that they were entitled to discovery of the records under ORCP 36 B(1), that ORS 409.225 did not prohibit their disclosure, and that the trial court's denial of their motion was error requiring reversal. Plaintiff responds that defendants did not preserve the issue for appeal, because they failed to make an offer of proof, because they failed to request in camera review of the records, and because, according to plaintiff, they raise new arguments on appeal. On the merits, plaintiff contends that ORS 409.225 prohibits discovery of the records.
We first reject plaintiff's argument that defendants failed to preserve this issue because, on appeal, they make new arguments relating to the application of ORS 409.225. At the hearing on defendants' motion to compel production of the records, defendants raised the issue of the disclosability of the records and cited ORCP 36 B(1) and ORS 409.225, among other authorities, for their contentions in that regard. In addition, the parties, as well as a legal representative of SCF, made extensive arguments relating to the proper interpretation and application of the latter statute in this context. That was enough. See State v. Hitz, 307 Or 183, 188, 766 P2d 373 (1988) (raising an issue at trial is ord
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