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McCathern v. Toyota Motor Corp.4/28/1999
ed by the jury at trial did not accurately reflect the relevant facts existing at the time of trial. The verb "to discover" is defined as "to make known something secret, hidden, unknown or previously unnoticed" or "to obtain for the first time sight or knowledge of." Webster's Third New Int'l Dictionary, 647 (unabridged ed 1993). Thus, the phrase "newly discovered evidence" implies that the evidence existed but was not known or knowable at the time of trial. Moreover, the due diligence requirement of ORCP 64 B would be a non sequitur with respect to newly existing evidence--i.e., even with due diligence, evidence nonexistent at trial would surely be undiscoverable for production at trial.
As noted, that construction comports with the approach taken by federal courts interpreting FRCP 60(b)(2), which provides that newly discovered evidence may be grounds for a new trial (FRCP 59) or relief from judgment (FRCP 60) if the evidence "by due diligence could not have been discovered." See Wright, Miller & Kane, Federal Practice and Procedure, 302 ยง 2859 (2d ed 1995) ("Newly discovered evidence must be of facts existing at the time of the trial."). Underlying the federal decisions is a principle of finality. See, e.g., Campbell v. American Foreign S. S. Corp., 116 F2d 926, 928 (1941) (noting that if a motion for a new trial could be granted on the basis of the post-trial occurrence of facts contradicting those demonstrated at trial, "the litigation would never come to an end"). The same considerations underlie the Oregon rules. See Marshall v. Martinson, 264 Or 470, 477, 506 P2d 172 (1973) ("Efficient judicial administration dictates that motions for new trials because of newly discovered evidence be granted sparingly. Otherwise, there would never be any finality to judicial proceedings.") (emphasis added).
Toyota's reading of ORCP 64 B(4) and, of necessity, the parallel "newly discovered evidence" provision of ORCP 71 B(1), would substantially subvert that principle of finality. Under ORCP 71 B(1), parties may move to set aside judgments based on, inter alia, "newly discovered evidence," for up to one year after the entry of judgment. If Toyota is correct, then (hypothetically) if the jury had returned a defense verdict in this case and, in April 1998, eleven months after the entry of judgment, a dozen rollover accidents involving 1994 4Runners had occurred under circumstances identical to this accident, plaintiff could have successfully moved to vacate the judgment and obtain a new trial based on circumstances that did not exist at the time of trial. The text of ORCP 64 B(4) (and ORCP 71 B(1)) does not compel such an open-ended reading of "newly discovered evidence" and, given practical and prudential principles of finality, we decline to so expansively construe the rule. The trial court did not err in denying Toyota's motion for a new trial on the basis of evidence of the April 11, 1997 rollover.
Our Disposition with respect to the evidence of the 1997 California rollover does not, however, apply to Toyota's evidence of the October 1996 Texas rollover. In assessing whether the trial court abused its "sound discretion" in denying a new trial based on that evidence, we apply Oberg's cumulative six-part test:
"'(1) [The alleged newly discovered evidence] must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as, with due diligence, could not have been discovered before the trial; (4) it must be material to the issue; (5) it must not be merely cumulative; (6) it must not be merely impeaching or contradicting of former evidence.'" 316 Or at 272 (quoting State v. Davis, 192 Or 575, 579, 23
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