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Due-Donohue v. Beal11/26/2003
Argued and submitted July 8, 2003.
Affirmed.
The trial court dismissed plaintiff's medical malpractice action after granting defendants' motion for summary judgment. The court concluded that the only issues of material fact were raised in an affidavit submitted by plaintiff, a non-attorney acting pro se, asserting that she had retained an unnamed qualified expert whose testimony would create a question of fact and that, under the Oregon Rules of Civil Procedure (ORCP), such an affidavit was ineffective because it was not submitted by plaintiff's attorney. As the material facts are undisputed, we review the trial court's action for errors of law. Surface v. American Spirit Ins. Cos., 154 Or App 696, 699, 962 P2d 717 (1998), aff'd, 335 Or 356, 67 P3d 938 (2003). We affirm.
ORCP 47 E provides, in part: "If a party, in opposing a motion for summary judgment, is required to provide the opinion of an expert to establish a genuine issue of material fact, an affidavit of the party's attorney stating that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact, will be deemed sufficient to controvert the allegations of the moving party and an adequate basis for the court to deny the motion."
(Emphasis added.) The only issue in this appeal is whether the phrase "party's attorney" includes the party herself, a non-attorney appearing on her own behalf. For a variety of reasons, we conclude that it does not.
Most obviously, the text of the rule distinguishes between "a party" and "the party's attorney." When the legislature uses different terms in the same statute, we infer that it intended them to have different meanings. State v. Guzek, 322 Or 245, 265, 906 P2d 272 (1995). If the legislature had intended to allow affidavits from either the party or the party's attorney, it would have used the term "party" throughout, because throughout the Oregon Rules of Civil Procedure a party is presumed to speak and act through his or her attorney. In other words, if, in using the phrase "party's attorney," the legislature meant that the affidavit could be submitted by the party or the attorney, then the word "attorney" is superfluous, and we should interpret statutes and rules so as to give meaning to every word. Kankkonen v. Hendrickson, 232 Or 49, 67, 374 P2d 393 (1962).
Related sections of ORCP 47 reinforce this conclusion. Subsections C, D, and F generally discuss the submission of affidavits: "C * * * The adverse party shall have 20 days in which to serve and file opposing affidavits * * *.
"D * * * If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against such party.
"* * * * *
"F Should it appear from the affidavits of a party opposing the motion that such party cannot, for the reasons stated, present by affidavit facts essential to justify the opposition * * *."
These subsections make no distinction between the adverse party and the party's attorney; either the party or the party's authorized representative, the attorney, could serve and file affidavits, fail to respond to a summary judgment motion, or fail to procure affidavits sufficient to oppose summary judgment. However, subsection E does make that distinction. Again, when the legislature uses different language in similar statutory provisions, we presume it to have intended different meanings. Guzek, 322 Or at 265; Thompson v. Estate of Adrian L. Pannell, 176 Or App 90, 97, 29 P3d 1184 (2001), rev den, 333 Or 655 (2002).
Finally, plaintiff's argument that a pro se litigant representing herself
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