Oregon Case Law Update: Using an Expert Witnesses to Defeat a Motion for Summary Judgment
From the desk of Josh Hayward: Oregon’s unique litigation process is sometimes referred to as “trial by ambush,” in part because there is no right to expert witness discovery. As such, parties are not required to identify their expert witness until the evening before trial or the morning of trial. When a party moves for summary judgment, may the other party use an attorney’s declaration providing that they have an unnamed expert witness who is ready to testify on facts or opinions creating an issue of fact to defeat a Motion for Summary Judgment? Read on to find out.
Claims Pointer: In this case arising out of a suit for misappropriation of trade secrets and breach of an oral contract, the Oregon Court of Appeals considered whether an expert witness could be used to create a genuine issue of material fact regarding causation, even when that witness lacks personal knowledge. This case serves as a reminder that Oregon case law does not permit expert identification during discovery. Additionally, an attorney may defeat a Motion for Summary Judgment by submitting a declaration indicating that they have retained an expert who will be available and ready to testify regarding an opinion that will create a triable issue of material fact.
Iverson’s Unlimited v. Winco Foods, LLC., 288 Or App 10 (2017)
Iverson’s Unlimited, Inc. (“Iverson”) provided unloading services to commercial carriers who delivered their goods at WinCo Foods, LLC (“WinCo”). Iverson was paid mostly by the carriers for unloading goods. Iverson also had a contract with WinCo, where Iverson would share 50 percent of its revenue received for unloading services, in exchange for exclusive use of WinCo’s facilities and equipment. Iverson also provided WinCo with reports on dates of unloading, number of loads, number of cases, pallets and other relevant info (“unloading data”). This information...