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Brownstein v. Pearson3/8/2000
stat only that an expert has been retained and is available and willing to testify to admissible facts or opinions that would create a question of fact." Accord Stotler v. MTD Products, Inc., 149 Or App 405, 408, 943 P2d 220 (1997). The affidavit does not necessarily have to "recite on what issues the expert will testify." Moore, 91 Or App at 265. When, however,
"the party enumerates those elements on which the unnamed expert will testify, that enumeration would reasonably lead the defendants and the trial court to believe that plaintiff will not be offering expert testimony on the unenumerated elements. We hold that, when a party chooses to enumerate the elements on which an expert will testify, even though a general assertion would otherwise satisfy the rule, the enumeration must give notice of all elements on which the expert may testify." Id. (emphasis in original).
In this case, plaintiff had argued that summary judgment should be granted because defendant "cannot muster sufficient evidence presenting genuine issues of material fact on the elements of breach and damages." In response, defendant submitted an affidavit that his expert's testimony would create "genuine issues of material fact on the elements of breach and damages[.]" Had defendant stopped there, there can be little doubt that his attorney's affidavit would have created a genuine issue of material fact that would preclude summary judgment. Moore, 91 Or App at 265. Defendant, however, went further and set out "in part" the specific testimony that his expert would present on those two elements. Plaintiff argues that, under Moore, once defendant specified what his expert would say, the trial court was entitled to conclude that the expert would not say anything else.
We do not read Moore that broadly. Moore was based on the rationale that, once the affidavit specified that the expert would testify on some elements of a claim, the trial court reasonably could infer that the expert would not testify on others. In this case, the attorney's affidavit makes two propositions clear. First, according to the affidavit, the expert's testimony will create genuine issues of material fact on the elements of breach and damages. Second, the specific opinions set out in paragraph 5 are part but not all of the testimony that defendant's expert will offer on those two elements. Given that wording, the trial court was not entitled to infer that the expert's testimony would be limited to the specific opinions set out in paragraph 5. To be sure, in light of paragraph 4 of the affidavit, the trial court was entitled to conclude that defendant's expert's testimony would create issues of material fact only on the elements of breach and damages. But those elements were the sole basis for plaintiff's motion for summary judgment; the attorney's affidavit was thus sufficient to create a genuine dispute of material fact.
Plaintiff advances an alternate basis for upholding the trial court's ruling. It argues that even if plaintiff's affidavit were sufficient to create a genuine issue of material fact as to damages and breach, defendant's counterclaims were still time barred. Plaintiff reasons that once defendant suffered losses in the 1989 bankruptcy , contrary to what one of plaintiff's lawyers had allegedly told or failed to tell him, defendant should have known that his damages were caused by plaintiff's negligent advice. Because defendant did not bring his counterclaims within two years after experiencing those losses, plaintiff concludes that his counterclaims are barred.
Defendant has alleged that he did not actually know that plaintiff's negligence caused his losses until he spoke with his new counsel in 1997. The q
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