Liability

Joint and Several

Economic Damages

Abolished in some cases*

Joint liability has been abolished, except for civil actions resulting from  violation of a state or federal statute regarding the spill, release, or disposal of hazardous substances or hazardous waste. If the court determines that all or part of any party's share of the obligation is uncollectible, the court shall reallocate any uncollectible share among the other parties on the basis of each party's respective percentage of fault.

Or. Rev. Stat. § 31.610.

Non-Economic Damages

Abolished in some cases*

See above.

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

No, only parties to the lawsuit and settling parties

Or. Rev. Stat. § 31.600(2).

Market Share Liability

No

Senn v. Merrell-Dow Pharm., Inc., 751 P.2d 215, 223 (Or. 1988).

Defenses

Comparative Negligence

Yes, modified

Contributory negligence shall not bar recovery in an action by any person or the legal representative of the person to recover damages for death or injury to person or property if the fault attributable to the claimant was not greater than the combined fault of all persons, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the claimant.

Or. Rev. Stat. § 31.600(1).

Assumption of Risk

No

Subsumed into comparative negligence.

Or. Rev. Stat. § 31.620(2).

Product Misuse

Yes

A manufacturer is not strictly liable when a product is put to an unforeseeable use.

Wilson v. B.F. Goodrich Co., 627 P.2d 1280, 1287 (1981), aff'd, 642 P.2d 644 (Or. 1982).

Compliance With 
Government Standards

No

Compliance with government standards is not conclusive of liability, but can be considered in determining whether the defendant has met the standard of care, Hansen v. Abrasive Eng'g & Mfg, Inc., 856 P.2d 625, 628-30 (Or. 1993), and whether the plaintiff has produced sufficient evidence to go to a jury, Barry v. Don Hall Labs., 642 P.2d 685, 690 (Or. Ct. App. 1982).

Statute of Repose

Yes

Government Contractor Defense

Undecided

McLawsuits Permitted?  Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

Or. Rev. Stat. § 30.961, 30.963.

Compensatory Damages

Is there a statutory limit on economic damages?

No

Is there a statutory limit on non-economic damages?

No*

Oregon’s $500,000 cap on non-economic damages in civil actions “arising out of bodily injury” was declared unconstitutional in Lakin v. Senco Prods., Inc., 987 P.2d 463 (Or.), clarified by 987 P.2d 476 (Or. 1999).

Is recovery for medical monitoring permitted without physical injury?

No

Lowe v. Philip Morris USA Inc., 183 P.3d 181 (Or. 2008).

Punitive Damages

Is there a statutory limit?

No

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

Does the state receive a portion of the punitive damage award?

Yes

State Criminal Injuries Compensation Account of the Department of Justice Crime Victims Assistance Section shall be paid 60% of any punitive damages award.

Or. Rev. Stat. § 31.735.

What standard is used?

Clear and convincing evidence

Or. Rev. Stat. § 31.730.

Procedures

Venue

Conducive to Abuse - 
Does the statute permit forum shopping?

Yes

Actions in tort are to be commenced in the county in which any of the defendants reside at the commencement of the action or in the county where the cause of action arose.  A party resident of more than one county shall be deemed a resident of each such county.  If none of the defendants reside in this state the action may be commenced in any county.

Corporations incorporated in the state, limited partnerships, and foreign corporations authorized to do business there are deemed residents of any county in which "the corporation or limited partnership conducts regular, sustained business activity or has an office for the transaction of business or where any agent authorized to receive process resides."

Or. Rev. Stat. § 14.080. 

Under the Oregon inconvenient forum doctrine, "a court may dismiss an action when, "in spite of the existence of 'subject matter jurisdiction, personal jurisdiction, and proper venue, trying the action elsewhere would "best serve the convenience of the parties and the ends of justice.'" Novich v. McClean, 18 P.3d 424, 430 (Ct. App.), review denied, 27 P.3d 1043 (Or. 2001).

Class Actions

Is there a right to an immediate appeal of class certification?

No

A circuit court judge may certify a class action certification for immediate appeal if the judge finds in writing that the order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. The Court of Appeals then has discretion as to whether to consider the appeal.  Application for immediate appeal does not stay proceedings in the circuit court unless the circuit court or the Court of Appeals so orders.

Or. Rev. Stat. § 19.225.

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

Yes, a limit applies to tobacco defendants only

A signatory to the tobacco Master Settlement Agreement can be required to post a bond to secure the right to appeal of no more than $150 million.

Or. Rev. Stat. § 19.312(2).

Evidence

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Similar standard

State v. O’Key, 899 P.2d 663 (Or. 1995).  The Oregon Supreme Court has stated that trial courts should find Daubert instructive.  In civil cases, the state follows the criteria set forth in State v. Brown, 687 P.2d 751 (Or. 1984), which the Oregon Supreme Court found to be consistent with Daubert.

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Reliance is required in some cases; causation is required

Reliance is required where the plaintiff claims to have acted on express representations.

Sanders v. Francis, 561 P.2d 1003 (Or. 1977); Or. Rev. Stat. § 646.638(1).

What is the level of scienter (intent) required of a defendant?

Willfulness

Willful use of deceptive act (defendant knew or should have known that conduct violated Act).

Or. Rev. Stat. §§ 646.605(10), 646.638.

Are class actions permitted?

Yes

Or. Rev. Stat. § 646.638(8) (as amended by H.B. 85, Reg. Sess. (Or. 2009)); Or. R. Civ. Proc. 32K (as amended by H.B. 85, Reg. Sess. (Or. 2009)).

Recovery of attorneys fees in class actions is prohibited.

Or. Rev. Stat. § 646.638(4).

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

Yes

Greater of $200 or actual damages; court may award equitable relief.

Or. Rev. Stat. § 646.638(1), (2).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

Jury may award punitive damages.

Or. Rev. Stat. § 646.638(1).

Does every prevailing plaintiff receive attorneys' fees and costs?

No, it is in the court's discretion

The court may award reasonable attorney’s fees to the prevailing party.

Or. Rev. Stat. § 646.638(3).

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

The provisions of this Act “do not apply to: (1) Conduct in compliance with the orders or rules of, or a statute administered by a federal, state or local governmental agency.”

Or. Rev. Stat. § 646.612.

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Yes

Are the grounds for obtaining an excuse from service closely defined?

No

A person may be excused for "undue hardship or extreme inconvenience to the person, the person’s family, the person’s employer or the public served by the person.

A person who is 70 years of age or older may be excused upon request. 

A woman who is breast-feeding a child may be excused upon request. 

A person who is the sole caregiver for a child or other dependent during the court’s normal hours of operation, who is unable to afford day care or make other arrangements for the care of the dependent, and the person personally attends to the dependent during the court’s normal hours of operation may generally be excused.

Or. Rev. Stat. § 10.050.

May jurors automatically postpone and reschedule service?

No*

A judge of the court or clerk of court may allow, for good cause shown, a person summoned to serve as a juror for a particular jury service term to defer jury service to any other term beginning within one year after the end of the term for which the person was summoned.

Or. Rev. Stat. § 10.055.

Is a juror's employment and leave time adequately protected during service?

No

Employers may not discharge or threaten to discharge, intimidate, or coerce any employee by reason of the employee’s service or scheduled service as a juror on a grand jury, trial jury or jury of inquest.

Or. Rev. Stat. § 10.090(1).

Is there a limit on the frequency of jury service?

Yes

An individual may be called no more than once every two years.

Or. Rev. Stat. § 10.030(5).

Is the length of service limited to no more than one day or one trial?

No

The length of a jury service term in a county shall be established by the presiding judge for the judicial district, but no trial juror shall be required to serve more than 10 days unless necessary to complete the trial of an action. A day of service is each day during a jury service term on which a juror is required to attend and attends.

Or. Rev. Stat. § 10.105.

The Chief Justice shall take all reasonable actions necessary to expedite implementation of juror service procedures for circuit courts that will allow a person called for jury service to serve for one day, or for one trial if selected to serve on a trial.

Or. Rev. Stat. § 10.107.

Juror per diem

$10 for 1st two days, plus mileage

Unless otherwise provided by the terms of an employment agreement, a juror must waive the state-paid fee if the juror is paid a wage or salary by the juror’s employer for the days that the juror is required to attend a court. The governing body of a city or county may provide by ordinance for an additional juror fee and for city or county reimbursement of jurors for mileage and other expenses incurred in serving as jurors in courts other than circuit courts.

Or. Rev. Stat. §§ 10.061, 10.065.

Is additional compensation available on lengthy trials?

Slight increase

The fee of jurors for the third and subsequent days of required attendance in circuit court during a term of service is $25 for each day that a juror is required to attend.

Or. Rev. Stat. § 10.061(2).

Is the potential penalty for nonappearance sufficient to encourage participation?

No

Contempt of court with no specified penalty.

Or. Rev. Stat. §§ 10.245, 10.990.

Problem Jurisdictions

None reported