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Marineau v. A. P. Green Refractories Co.9/28/2005
Argued and submitted January 14, 2005.
Before Edmonds, Presiding Judge, and Wollheim and Schuman, Judges.
Affirmed.
Plaintiff, the personal representative of the estate of Nicklaus Marineau, appeals after the trial court, pursuant to ORCP 47, dismissed her action for wrongful death allegedly resulting from exposure to asbestos in a product manufactured by defendant. This appeal concerns the enforcement of a general order adopted by the Multnomah County Circuit Court that applies to all cases that allege damages resulting from asbestos exposure. We affirm for the reasons that follow.
On August 16, 2001, plaintiff filed a complaint for wrongful death against defendants based on an alleged exposure to asbestos. On August 31, 2001, the Multnomah County Circuit Court promulgated a General Order regarding pleading in such cases that applies, by its terms, to plaintiff's action. The General Order authorizes plaintiffs to file complaints that do not identify the asbestos product that is alleged to have caused the plaintiff's harm or allege the details of causation, provided that a plaintiff later furnish a product identification report that includes not only the name of the product but "the date(s) of exposure, the duration of exposure, the job site or other site of exposure, * * * and the connection of the defendant with that exposure." Under the order, no product identification report need be furnished if the complaint is pleaded "in a manner that complies with Oregon's 'fact pleading' requirement." If neither requirement is met, then the order provides that the plaintiffs are barred from offering product identification evidence in response to a summary judgment motion or at trial.
The trial court granted summary judgment to defendants after plaintiff failed to produce a product identification report within the time prescribed by the General Order. In opposition to defendant Whip Mix Corporation's motion for summary judgment, plaintiff attached an affidavit that provided much of the missing product and causation information. In turn, defendant argued that the affidavit and product identification information should be struck from the record because of plaintiff's failure to follow the provisions of the General Order. At the summary judgment hearing, 12 days before trial, plaintiff's counsel argued that, had plaintiff proceeded solely under the Oregon Rules of Civil Procedure, she would have had ample opportunity to amend her pleading before trial. The trial court pointed out that plaintiff had not sought leave to amend. Plaintiff's counsel then requested leave to amend plaintiff's complaint. The trial court denied that motion for several reasons, including plaintiff's failure to file a written motion.
The trial court viewed the issues arising at the summary judgment hearing solely as pleading issues:
" he problem here is that Defendants rely on the pleadings. Defendants are always entitled to rely on the pleadings. And if the pleadings aren't sufficient enough to prepare a defense, to adequately defend, the defendants do not file motions to make more definite and certain because of this unusual procedure we've created that is designed for the benefit of all the litigants, the plaintiffs and the defendants.
"And when the plaintiffs want to take advantage of being able to plead very generally, more generally than might otherwise be sufficient, and the defendants don't challenge that pleading with a motion to make more definite and certain because the defendants have every right to rely on the fact that they're going to get more specific pleadings with a product ID statement, * * *
"So the system has wor
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