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Gross v. Hackers6/28/2000
trated that the trial court abused its discretion in denying her motion for a new trial on the ground of "prevailing party misconduct."
Plaintiff's final assignment of error pertains to the trial court's denial of her motion for new trial based on an "irregularity" in the proceedings. ORCP 64 B(1). According to plaintiff, the "irregularity" was Burchiel's failure to bring the correspondence in his file with defendant's counsel to trial in response to plaintiff's subpoena. That correspondence includes: an August 1997 letter from defendant's counsel notifying Burchiel of a change in trial date and that either plaintiff or defendant might call him as a witness; a letter from defendant's counsel dated December 3, 1997, requesting him to review the enclosed medical records and thanking him for his time and effort in assisting defendant; and a fax cover sheet, dated December 8, 1997, from Burchiel to defendant's counsel that accompanied Burchiel's progress record on plaintiff. On December 9, 1997, Burchiel testified in court that he had brought everything he had to trial. Plaintiff contends that Burchiel testified untruthfully and that he concealed correspondence that would have shed light on his relationship with defendant's counsel. She argues:
"Had Dr. Burchiel produced the correspondence between and [defendant's counsel] prior to the completion of trial, [plaintiff] would have been able to expose to the jury that Dr. Burchiel's critical opinion on causation was tainted with bias in favor [of defendant]. * * * This irregularity in the proceedings prevented [plaintiff] from having a fair trial requiring a new trial under ORCP 64 B(1)."
For the reasons we articulated regarding the other two grounds advanced by plaintiff, the trial court could have concluded that the introduction into evidence of correspondence would not have had any material effect on the outcome of the trial and did not substantially prejudice plaintiff's case. Consequently, the trial court did not abuse its discretion in denying plaintiff's motion for a new trial on the ground that an irregularity in the proceedings denied plaintiff a fair trial.
Affirmed.
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