Pounds ex rel. Pounds v. Holy Rosary Medical Center , 127 Or. App. 221 ( 1994 )

De MUNIZ, J.,

dissenting.

The majority states that plaintiffs assignment of error is “the court’s ruling admitting evidence of the settlement * * 127 Or App at 224, and holds that this case is indistinguishable from Holger v. Irish, 316 Or 402, 851 P2d 1122 (1993). On the basis oí Holger, it concludes that admission of the settlement testimony was error and that the error was not harmless. I dissent.

Plaintiffs assignment is broader than the majority states. He alleges that the court erred in

“allowing defendant to read into the record the allegations of negligence (plus the fact of settlement) made in prior pleadings by plaintiff concerning the negligence of the [hospital], a former defendant.”¹

Plaintiffs assignment puts into issue the admission of the pleadings, as well as settlement, and defendant has responded to that assignment. Defendant claims that the pleadings provide the independent relevance to support the settlement evidence under OEC 408 and Holger. The majority acknowledges that Holger does not preclude settlement evidence that has independent relevance, but dismisses, without discussion, why the admission of the pleadings here does not provide that relevance.

I conclude that the record shows that defendant is correct. In Holger, the trial court gratuitously told the jury about the settlement with the hospital before the parties had presented evidence. That is not the situation here.

Plaintiff originally named as defendants both the hospital and defendant. After plaintiff settled with the hospital, he filed a second amended complaint deleting the hospital from the title of the case. Before trial, he filed a motion in limine seeking to prohibit any reference at trial to the settlement. The court granted the motion but indicated that it might revisit the decision. Defense counsel then stated that he intended to mention plaintiffs prior allegations against the hospital in his opening statement. The court ruled that neither the pleadings nor the filing of such pleadings would be admissible. It also ruled that plaintiffs statements that the hospital had been at fault would be admissible.

No mention of the pleadings was made during opening argument. As part of plaintiff s case, he called Dr. Kates to testify on the standard of care in the medical community. During cross-examination, defendant asked Kates whether he had reviewed the deposition of the nurse who attended the birth. Kates replied:

“I was told by [plaintiffs counsel], it wasn’t really necessary; that the nurse and the hospital were no longer involved in the case.”

Plaintiff made no objection to that testimony.

Pounds, who is plaintiffs father and guardian ad litem, testified on behalf of plaintiff. During cross-examination, Pounds acknowledged that he had been critical of the hospital and its staff following his son’s birth, but had expressed no criticism of defendant. Plaintiff did not object.

Out of hearing of the jury, defendant then asked the court for permission to ask Pounds whether he had filed a lawsuit containing allegations against the hospital. Plaintiffs counsel conceded that the pleadings were relevant but argued that they were prejudicial. The trial court concluded that the pleadings were relevant to issues of fault and causation and reversed its earlier decision. It ruled that defendant could question Pounds regarding the two paragraphs in the prior pleading that set forth allegations of negligence against the hospital. The court then held that, once the evidence of the prior pleadings was admitted, it would be best for all parties if the jury was advised of the settlement and given instructions on how to view it. Defendant then read the questions set out in the majority opinion, to which plaintiff assigns error. 127 Or App at 223-24.

Before closing argument, the trial court granted plaintiffs motion “to prevent the Defendant from arguing such things as, they’ve already been paid, they had somebody else to collect from, all that.” The court ruled:

“In fact * * * I will indicate that there should be no further discussion concerning the settlement, other than the fact * * * that the hospital has been a Defendant; there’s certain allegations made, and that has been settled. And * * * anything beyond that would he improper.”

The court instructed the jury with regard to the settlement based on Uniform Jury Instruction 11.70, as was the instruction in Holger. Plaintiff did not assign the instruction as error.

I would hold that the court did not err in allowing evidence of the pleadings. A superseded pleading can be used as evidentiary admissions, subject to explanation. Yates v. Large, 284 Or 217, 223, 585 P2d 697 (1978). Kates alluded to the lawsuit against the hospital, and Pounds acknowledged his criticism of the hospital. Plaintiff did not object to those questions. The pleadings became relevant as admissions tending to show that, at one time, plaintiff had claimed that the hospital was also negligent and responsible for his injuries. That position was inconsistent with his position at trial that defendant alone had caused the injuries.

The introduction of those pleadings provided the “independent relevance” of plaintiffs settlement with the hospital. The trial court was correct that, once the jury knew that the hospital had been a defendant, it was entitled to know why the hospital was not in the case. Under Holger, I would find no error in admitting the evidence that the hospital had settled the case.

However, even if it were error, I would hold that it was harmless. The majority finds that defense counsel’s statements in closing argument “are indicative of the prominence and importance that defendant attributed to the evidence.” 127 Or App at 226. However, the trial court had ruled that the fact of settlement could be mentioned, and plaintiff does not argue that that ruling was error. The only evidence of settlement left is the “Yes” by Pounds in response to the question whether he had settled with the hospital. I cannot conclude that that single statement is sufficient to prove that a substantial right of plaintiff was affected. OEC 103(1).

I would affirm the trial court.²

1 He combines with that assignment a second one alleging that the court erred in

“denying the plaintiffs motion for a mistrial based upon the reading of the portion of plaintiffs prior pleadings that alleged the concurrent negligence of the [hospital].”

However, he makes no separate argument regarding the motion for a mistrial, and it was not timely.

2 Plaintiff makes other assignments of error on issues that I conclude are likely to arise on remand. However, I do not address them, as the majority has not.