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Bolt v. Influence3/28/2002
En Banc
Original proceeding in mandamus.
Argued and submitted November 7, 2001.
Peremptory writ to issue.
In this original mandamus proceeding, we consider the legal standards governing a trial court's decision on a motion to amend a complaint to add a punitive damages claim in a products liability case. The trial court denied plaintiffs' motion to amend on the ground that they had not presented evidence sufficient for a jury to find, by clear and convincing evidence, that they were entitled to punitive damages. Because ORS 18.535(3) sets out a less demanding "directed verdict" standard for evaluating a motion to amend to add a punitive damages claim, we conclude that plaintiffs are entitled to a peremptory writ of mandamus directing the trial judge to reconsider plaintiffs' motion.
The following facts are not contested. Influence, Inc. (defendant), manufactures and markets medical devices used to treat urinary incontinence. In 1997, a surgeon implanted one of defendant's devices, a transvaginal synthetic sling system, in the pelvis of plaintiff Alisha Bolt. Shortly thereafter, Alisha Bolt suffered serious postoperative complications and later underwent multiple surgeries to have the device removed. Attributing the cause of various injuries to the design of the synthetic sling, plaintiffs filed claims against defendant for negligence, products liability, and loss of consortium.
After some discovery but before trial, plaintiffs moved to amend their complaint to add a claim for punitive damages based on allegations that defendant had marketed its synthetic sling with reckless and outrageous indifference to the risk of harm that that device posed to the public. After considering plaintiffs' evidence together with opposing evidence that defendant had submitted, the trial court denied plaintiffs' motion. In explaining its ruling, the court stated that it had used the following standard when examining the evidence:
" aking the evidence in the light most favorable to the plaintiff, could a reasonable jury find, by clear and convincing evidence, that the truth of the matter alleged is highly probable -- that the defendant has shown a reckless and outrageous indifference to a highly unreasonable risk of harm and has acted with conscious indifference to the health, safety, and welfare of others." (Emphasis added.)
This mandamus proceeding followed. ORS 34.110.
We begin with plaintiffs' contention that the trial court used the wrong legal standard in reviewing plaintiffs' motion to amend their complaint. Plaintiffs had submitted that motion under ORS 18.535, which provides, in part:
"(1) A pleading in a civil action may not contain a request for an award of punitive damages except as provided in this section.
"(2) At the time of filing a pleading with the court, the pleading may not contain a request for an award of punitive damages. At any time after the pleading is filed, a party may move the court to allow the party to amend the pleading to assert a claim for punitive damages. The party making the motion may submit affidavits and documentation supporting the claim for punitive damages. The party or parties opposing the motion may submit opposing affidavits and documentation.
"(3) The court shall deny a motion to amend a pleading made under the provisions of this section if the court determines that the affidavits and supporting documentation submitted by the party seeking punitive damages fail to set forth specific facts supported by admissible evidence adequate to avoid the granting of a motion for a directed verdict to the party opposing the motion on the
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