Oregon Case Law Update: Using an Expert Witnesses to Defeat a Motion for Summary Judgment

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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 could be used by WinCo to confirm that Iverson was sharing the proper amount of revenue. Iverson expected the information to remain confidential. At one point, WinCo decided to solicit bids from Iverson and other competitors. WinCo’s employee requested approximately two years of unloading data and agreed that the file would be confidential. However, when WinCo sent out a request for proposal, they attached a copy of the file containing the unloading data, which the employee had promised to keep confidential. Following the bidding process, two competitors outbid Iverson, and WinCo chose the top bidder. Subsequently, Iverson filed suit against WinCo for misappropriation of trade secrets and breach of an oral contract.

WinCo filed a Motion for Summary Judgment, arguing that no reasonable juror could find that disclosure of Iverson’s unloading data actually caused the competitors to outbid Iverson. In other words, because Iverson had no way of showing causation, Iverson did not have a valid cause of action. Iverson’s attorney attached a declaration to Iverson’s response, stating that an expert witness had been retained and was ready to testify regarding the extent to which Iverson’s trade secret data may have benefited the competitor and to what extent the competitors may have used Iverson’s trade secret data to make their bids. The trial court saw the central issue to be causation and found that despite Iverson’s expert witness, Iverson could not establish causation. Accordingly, the court dismissed the claims and granted WinCo’s Motion for Summary Judgment; Iverson appealed.

The Oregon Court of Appeals reversed the trial court’s decision to grant Summary Judgment. According to Oregon Rules of Civil Procedure (“ORCP”) 47, a court will grant a Motion for Summary Judgment if there is no genuine dispute as to any material fact, which means that no objectively reasonable juror could return a verdict for the adverse party. ORCP 47 E allows an attorney to file a declaration in opposition to a Motion for Summary Judgment, stating that “an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact.” So long as the declaration is made in good faith and based on admissible facts or opinions, the declaration is “an adequate basis for the court to deny” the Motion for Summary Judgment.

WinCo argued that Iverson’s expert witness could not possibly create a question of fact because the expert witness did not have personal knowledge as to how the competitors constructed their bids. In other words, WinCo argued that without personal knowledge, Iverson could not establish causation, a central element of the case. While the court agreed with the trial court’s finding that causation was at the center of the dispute, it explained that “causation may be proved by circumstantial evidence, expert testimony, or common knowledge.” While the expert lacked personal knowledge, the financial complexity of bidding and unloading data is an appropriate matter for an expert to “reverse engineer” Iverson’s cost and profit. Thus, the expert witness’s opinion could establish circumstantial evidence, which the jury could use to infer causation. As such, the potential contravening evidence presented a genuine issue of material fact on causation. Because the Oregon Court of Appeals found that there was a genuine issue of material fact, it reversed the trial court’s decision to grant the Motion for Summary Judgment and remanded the case back to the trial court.

View full opinion at: http://www.publications.ojd.state.or.us/docs/A157397.pdf

Case updates are intended to inform our clients and others about legal matters of current interest. They are not intended as legal advice. Readers should not act upon the information contained in this article without seeking professional counsel.

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