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Digesting Recent Case from Oregon Court of Appeals

Sex abuse of minors is a topic of great concern to society at large, including civil and criminal juries. It is a topic I have written on only infrequently in this blog. Over the coming weeks, I will focus additional attention on this serious topic. Today, I run the first installment of this series, discussing a recent development in the law on sex abuse of minors.

On October 27, 2010, the Oregon Court of Appeals issued an opinion in a case involving alleged personal injuries for the sex abuse of a minor. The plaintiff, who was referred to only as A.G., had alleged that her dance instructor sexually abused her over a period of time during which she was attended classes at a Lake Oswego dance studio. The trial court dismissed the case and the plaintiff appealed.

On appeal the plaintiff argued that the trial court inappropriately excluded the testimony of the alleged minor sexual abuse victim's psychologist. A Portland sex abuse attorney will rely heavily on the testimony of an expert. When that testimony is excluded the sex abuse victim, or often any personal injury plaintiff, will have a difficult time maximizing recovery. The plaintiff's personal injury attorney in this case argued that the Court exceeded its authority when it excluded the expert testimony of a psychologist who had examined the minor.

The personal injury lawyer for the alleged sex abuse victim had failed to produce records of a prior examination by a doctor who the personal injury lawyer later sought to have testify as an expert at trial.

The dispute centered on ORCP 44C:

In a civil action where a claim is made for damages for injuries to the party or to a person in the custody or under the legal control of a party, upon the request of the party against whom the claim is pending, the claimant shall deliver to the requesting party a copy of all written reports and existing notations of any examinations relating to injuries for which recovery is sought unless the claimant shows inability to comply.

While the examination and report by the expert would, strictly speaking, fall within the scope of documents that ORCP 44C requires be produced, the plaintiff's personal injury lawyer argued that ORCP 44 requires the production of examination reports by treating physicians but not doctors who are serving as experts in anticipation of litigation.

After a detailed review of the history of ORCP 44, the Court of Appeals disagreed with the plaintiff's interpretation. The court went so far as to quote the HB 2101, a 1973 act which was later substantially adopted as ORCP 44:

Upon the request of the party against whom the [personal-injury] claim is pending the claimant shall deliver to him a copy of all written reports of any examinations relating to injuries for which recovery is sought unless the claimant shows that he is unable to comply.

The court noted that this language from HB 2101 contained no distinction between expert examinations and treating physician examinations. The Oregon personal injury attorneys who argued in favor of the 1973 bill before the legislature also made no such distinction, the court noted.

The court ultimately upheld the trial court's decision that under ORCP 44C examination reports by experts must also be produced under the circumstances presented in that case. The decision against the alleged victim of sexual abuse was affirmed.

Portland personal injury lawyers are currently discussing, debating and processing the import of this new Court of Appeals opinion not just for their sex abuse clients, but for all of their personal injury clients. A consensus is beginning to emerge that the holding of this case might be, in some respects, limited to its facts. Flushing out the true meaning of the opinion is, of course, a matter for the court.

Sarah Nelson, Trial Lawyer, practices in the area of personal injury law, including prosecuting civil sex abuse cases, from her offices at 24 NW 2nd, Ste 200, Portland, Oregon 92709.

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