Who Goes on the Verdict Form: Obfuscation in Oregon
Prior to 1995, Oregon had joint and several liability for asbestos and other personal injury cases. In September 1995, the Oregon legislature passed tort reform laws, including ORS 18.485 (now ORS 81.610), which changed liability to several only. The new legislation set out, “[t]he amendments to ORS. . . 18.485. . . apply only to causes of action arising on or after the effective date of this Act. ORS 31.610 (emphasis added).
The word “arising” is a subject of contention in cases where asbestos exposure happened prior to 1995, but the plaintiff was diagnosed with a disease from the exposure after 1995. In asbestos cases there is a period of latency after the exposure has occurred but before the disease has manifested itself such that the plaintiff should reasonably know he has an asbestos related disease. As such, the law treats the statute of limitations on these tort actions as not beginning until the cause of action accrues, or “come[s] into being so that a legal consequence may commence.” Howell v. Willamette Urology, P.C., 344 Or. 124, 128 (2008).
The issue Oregon trial courts have debated is whether “arise”, within the meaning of ORS 18.485 is synonymous with “accrue.” If it is, then several liability applies to causes of action accruing after 1995, and joint and several applies to causes of action accruing before 1995. If the two words are not interchangeable, then the answer becomes murkier as to whether joint and several liability applies to a suit in which the exposure occurred earlier than 1995 but the disease remained latent. Trial courts have been divided leading to unpredictable results.
Plaintiffs arguing for joint and several liability claim that “arise” is not equivalent to accrue and that the time when the action arose was at the point of asbestos exposure even though the statute of limitations is not yet triggered. Defendants, whose liability is limited by post-1995 several liability, counter that arise and accrue are synonyms for the same legal concept— the cause of action cannot commence until the plaintiff knows or reasonably should know injury has occurred.
The law in Oregon is unsettled on this issue and legislative history is unclear. Oregon case law holds that personal injury claims are only recognizable when there is actual injury— exposure alone is insufficient. See Lowe v. Philip Morris, 344 Or. 403, 415 (2007). As such, there is a good argument that the key time for deciding which law applies should be the date when the plaintiff could bring a cause of action.
Should the court find that pre-1995 law applies, the liability is joint and several, and settlement credits apply against the final judgment. If the court holds that post-1995 law applies, and the liability is several only, settlement credits do not apply against the final judgment. Or. Rev. Stat. Ann. § 31.610 (“Each person’s share of the obligation shall be equal to the total amount of the damages found by the trier of fact, with no reduction for amounts paid in settlement of the claim or by way of contribution, multiplied by the percentage of fault determined for the person by the trier of fact under ORS 31.605.”). Which scenario is preferable for defendants depends on the posture of the individual case.
Oregon law for post-1995 cases allows more entities on the verdict form. ORS § 31.600(2), passed with the other tort reforms in 1995, states “the trier of fact shall compare the fault of the claimant with the fault of any party against whom recovery is sought, the fault of third party defendants who are liable in tort to the claimant, and the fault of any person with whom the claimant has settled.”
Regardless of whether the new or old law is applied, Oregon disallows assessing liability for third parties who are immune to suit. ORS § 31.600(2)(a). Under the Oregon’s Workers Compensation Statute, employers are immune to most civil suits. ORS § 656. This becomes an issue in asbestos cases, because the jury cannot assign a percentage of liability to the employer even if the asbestos exposure was allegedly during a period of employment with that employer.
Oregon law for cases arising before 1995 allowed only active parties on the jury verdict form. Former ORS § 18.480 (now ORS § 31.605) only permitted the trier of fact to answer special questions on the jury verdict form concerning the amount of damages the plaintiff is entitled to and the percentage of fault of each party. In Mills v. Brown, the Oregon Supreme Court held that this statute limits jury consideration to “the fault of the parties before the court at the time the case is submitted to the fact-finder for a verdict or decision.” 303 Or. 223, 226 (1987).
Case law before the addition of ORS § 31.600 held that parties that settled during or before trial or parties that defaulted during trial, could not be considered by the jury on the verdict form. See Mills v. Brown, 303 Or. 223, 226 (1987). However, now ORS § 31.600 provides that all parties to the claim, third party defendants and settled parties may be considered by the jury. Or. Rev. Stat. § 31.605, which replaced Or. Rev. Stat. § 18.480, provides that all three of these can be placed on the verdict form.
Because non-parties cannot be considered on the jury verdict form, the only way to assert their fault is to plead sole cause. In Conner v. Mertz, the Oregon Supreme Court held that when a nonparty is solely liable for the damages, then the plaintiff cannot recover. However, when a nonparty is partially at fault and the defendant is partially at fault, the defendant maybe liable for all the damages. 274 Or. 657, 662 (1976). Additionally, Or. Rev. Stat. Ann. § 31.600 (5) says that the statute delineating who can be on the jury verdict form “does not prevent a party from alleging that the party was not at fault in the matter because the injury or death was the sole and exclusive fault of a person who is not a party in the matter.”
In Vanderyacht v. BorgWarner Morse TEC, LLC, et al. in Multnomah County, Oregon, the trial judge, Hon. Thomas Ryan, denied a defendant’s motion in limine requesting the application of several liability in a living mesothelioma case. The Plaintiff had alleged asbestos exposure prior to 1976 and was diagnosed with mesothelioma in 2014. The trial court found the terms “arise” and “accrue” not to be synonymous, and opined that the legislature did not intend for the terms to be used interchangeably when drafting ORS 31.610. As a result, under the former law defendants could be jointly and severably liable, but would enjoy the benefits of all settlement credits. Other trial courts in Oregon have ruled both ways on this issue, and no appellate decisions have been published.
For similar guidance in other states, please refer to the following Who Goes on the Verdict Form publications:
- Alabama: Pointing Fingers Across “the V” in Alabama
- Arkansas: Arkansas’ Evolving Apportionment Rules
- California: Proposition 51 and Apportionment of Fault in California
- Connecticut: Tinkering Toward Utopia Leads to Complexity in Connecticut
- Florida: Florida Rules on Apportionment of Liability
- Illinois: Illinois’ Approach to Non-Parties and Settling Defendants and the Apportionment of Fault
- Indiana: Is There Causative or Fault-based Apportionment in Indiana?
- North Carolina: Contributory Negligence & Pro Rata Apportionment in North Carolina
- South Carolina: South Carolina Law Needs Clarification
- Washington: The Empty Chair Variable in Washington
- West Virginia: West Virginia’s Adoption of Modified Comparative Fault