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Marineau v. A. P. Green Refractories Co.9/28/2005
f Civil Procedure, we inquire whether the trial court erred in granting summary judgment as a result of plaintiff's failure to comply with the General Order. Plaintiff's complaint does not allege which of defendant's products exposed plaintiff's decedent to asbestos or any other facts relating to asbestos exposure that the General Order contemplates will be disclosed either by the complaint or by the product identification report. Without such allegations, the complaint does not state a claim against defendant Whip Mix. Even so, plaintiff had an opportunity under the General Order to cure this pleading defect by providing a product identification report that complied with the requirements of the order not later than 60 days after the filing of the complaint. However, almost two years went by before plaintiff filed such a report, and even then, plaintiff only filed it when forced to respond to defendant's motion for summary judgment.
The trial court properly enforced the General Order and struck plaintiff's affidavit--which was not within the scope of the pleadings--from the summary judgment record. Section 3 of the General Order provides in part:
"f. Failure to produce any product identification: If plaintiff fails to produce any product identification as to a particular product and a particular defendant in a timely manner (or does not otherwise plead the Complaint in a manner that complies with Oregon's 'fact pleading' requirement) as required by this General Order, unless the Court allows plaintiff to file and serve an amended product identification report, pursuant to the standards set forth in ORCP 23A, plaintiff shall not be permitted to offer product identification evidence as to a particular product and a particular defendant in response to motions for summary judgment or at trial."
As a result, defendant's motion for summary judgment under ORCP 47 C was essentially unopposed, and the trial court appropriately granted the motion.
Nonetheless, plaintiff argues that the trial court was obligated to allow plaintiff to correct her pleading defects (and, consequently, the evidentiary deficiencies) in response to defendant's summary judgment motion. The Oregon Rules of Civil Procedure allow plaintiffs to amend as a matter of course before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, within 20 days after it is served. ORCP 23 A. "Otherwise, a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Id. (emphasis added). Plaintiff did not have a right to amend in response to summary judgment; rather, leave to amend was a matter entrusted to the discretion of the trial court.
Under the circumstances, we conclude that the trial court's denial of plaintiff's motion to amend was well within its discretion under ORCP 23 A. To allow plaintiff's motion would effectively have written an escape clause into the General Order and eviscerated the purpose of the order. The General Order, according to its terms, is intended to "simplify the pleading of these claims and to assist defendants in evaluating their potential liability by requiring plaintiffs to supply sufficient information about the claims plaintiff expects to present at trial so as to enable defendants to defend plaintiff's claims."
Moreover, under plaintiff's construction of the General Order, plaintiff would have received the benefit of simplifying the pleading of her claim, but would have been relieved of the reciprocal obligation imposed by the order to supply defendant with information about plaintiff's claim in a timely fashion, so
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