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Gross v. Hackers6/28/2000
Argued and submitted November 12, 1999.
Affirmed.
Plaintiff appeals from a judgment in favor of defendant in this medical malpractice action. She assigns error to the trial court's denial of her motion for a new trial. ORCP 64 B. We review the denial for an abuse of discretion and affirm. Oberg v. Honda Motor Co., 316 Or 263, 272, 851 P2d 1084 (1993), rev'd on other grounds 512 US 415, 114 S Ct 2331, 129 L Ed 2d 336 (1994).
Defendant, a physician, operated on plaintiff's back. Following the operation, plaintiff experienced bowel, bladder and sexual dysfunction. Defendant referred her to several doctors but none were able to provide her relief from those difficulties. Plaintiff brought this malpractice action on the theory that the cause of her problems was an untreated post-operative hematoma that defendant negligently failed to diagnose and treat. Defendant denied liability and also suggested that an unrelated condition was causing her symptoms. After plaintiff rested her case at trial, defendant called several physicians as witnesses, including some who had treated plaintiff after the referrals from defendant. Dr. Burchiel was one of those witnesses. According to plaintiff, Burchiel was the only treating physician besides defendant who attributed plaintiff's symptoms to the other cause. The eight day trial ended with a jury verdict against plaintiff, and the grounds for her motion center around Burchiel's testimony.
After trial, plaintiff discovered that Burchiel had charged defendant $3,000 for his trial testimony and a total of $4,000. Plaintiff also discovered correspondence in which defendant's counsel thanked Burchiel for "your time and effort to assist us in our defense of [defendant]" and requested that he submit his "statement for final services if there is any outstanding balance." Relying on that evidence, plaintiff moved for a new trial under ORCP 64 B. She argued that Burchiel had misled the jury when he testified that he had not been compensated by defendant for his testimony and that he was not testifying on defendant's behalf. In response to plaintiff's motion for a new trial, Burchiel and defendant's counsel averred that they did not have any discussion before or during trial about compensation. Before trial, Burchiel had been consulted by counsel for both parties and had been subpoenaed by plaintiff to bring his treatment records of plaintiff to trial. Burchiel also sent a bill to plaintiff for services. Finally, Burchiel averred that his testimony at trial was truthful because he personally did not receive any of the money paid for his services. Rather, the monies went to a corporation that he had established which used "medicolegal" revenue from such services exclusively for the educational purposes of others at Oregon Health Sciences University. After reviewing the affidavits of both parties, the trial court denied plaintiff's motion without making any findings or articulating the reasons for its ruling.
On appeal, plaintiff assigns error to the denial under each of the grounds that she asserted in her motion: newly discovered evidence, prevailing party misconduct, and an irregularity in the proceedings. The initial two assignments of error focus on a portion of Burchiel's testimony during cross-examination at trial by plaintiff's counsel:
"Q. [Defendant's] compensating you for your testimony today?
"A. I don't make anything from this testimony.
"Q. Okay. But you are testifying for [defendant]?
"A. I was asked as a --
"Q. I mean, is it not true that [defendant's counsel] claims you're his expert witness, and is it not true that it is your position we shouldn
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