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Marineau v. A. P. Green Refractories Co.9/28/2005
ked pretty well, but the problem here is the reliance by the defendants on the expectation that they're going to get more specific pleadings. So they really do not challenge your more general and insufficient pleadings when they are insufficient, because they're expecting something more as the general order says.
"And when plaintiffs want to take advantage of the opportunity to plead very generally and then do not take the second step, which they don't have to do if they'd been more specific in the first place, then that's the problem. And when we get down to the short strokes, that is, where we're too late before trial, then it's not fair. * * *
"So it's not a causation issue. It's not a damages issue. The question is whether you got evidence that you're entitled to offer considering your pleadings."
Ultimately, the trial court ruled that plaintiff's complaint failed to allege specific factual allegations as to defendant regarding the product at issue or the nature of the claimed exposure. Because plaintiff had not filed and served a product identification report as contemplated by the General Order or a timely motion to amend the complaint to meet Oregon's fact pleading requirements, the trial court granted defendant's motion for summary judgment:
"I'm going to grant the motion for summary judgment.
"With respect to findings about why this drastic remedy is appropriate, we are 12 days before trial. This motion for summary judgment was filed some--I assume 45 days before trial or there would have been a challenge to it on that basis. This case is almost two years old. Discovery is completed. The discovery cutoff date has passed. It is prejudicial to the defendant.
"I also might note that in the bigger picture in terms of the case management issues which I rely on in my inherent authority to manage the cases[.]
"* * * * *
"So, if the lawyers want to plead without filing--if the plaintiffs want to plead without filing product ID statements, they're perfectly entitled to do that, as long as they plead sufficiently, or if they provided some notice to the defendant that they ought not rely on the case management orders * * * then that would be one thing. But that's not where we are some 20-plus months after the case was filed. So that's why I'm granting the motion for summary judgment."
On appeal, plaintiff makes three assignments of error: (1) "The Court erred in granting defendant's motion for summary judgment[;]" (2) "The Court erred in refusing to allow plaintiff to amend her pleadings to specify the * * * product to which [the decedent] was exposed[;]" and (3) "The trial court erred in ordering a dismissal with prejudice to punish plaintiff for failing to plead the 'product at issue or the nature of the claimed exposure.'" Plaintiff makes a number of arguments under these assignments, but as described below, the issue properly before this court is much more narrow than the above assignments would suggest.
In deciding plaintiff's appeal, we are mindful that the doctrine of preservation requires appellants to raise an issue to the trial court before we will review it on appeal. See ORAP 5.45. Our review of the trial court record reveals that plaintiff's opposition to defendant's motion for summary judgment pertaining to the trial court's authority to enforce the General Order consisted of oral argument to the trial court and two footnotes in her trial brief. Those two footnotes effectively summarize the issues she framed for the trial court to decide. The first footnote states,
"Although not necessary to resolution of this case, plaintiff maintains that the court lacks
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