Punitive damages

May 2007
By Judge John Wittmayer, Multnomah County Circuit Court

Lawyers filing motions to amend a complaint to add a punitive damages claim and lawyers opposing those motions should read Richardson v. Fred Meyer, Inc., 211 Or App 421 (2007), decided by the Court of Appeals on March 21.

In Richardson, plaintiff sued defendant for false arrest. Thereafter, plaintiff filed a motion to amend to add a punitive damages claim, pursuant to ORCP 23 and former ORS 18.535, renumbered as ORS 31.725. In support of the motion plaintiff submitted an affidavit from his lawyer, a memorandum of law and a transcript of plaintiff's deposition.

When the motion was heard, neither of the lawyers had the hearing recorded, i.e., they were not "on the record." The motion to amend was denied. The order denying the motion said that "[a]fter reviewing the written submissions of counsel and considering the oral argument presented...." the motion is denied.

On the morning of trial plaintiff's counsel renewed his motion to add a punitive damage claim, which was denied by the trial judge. Although that hearing was "on the record," the electronic recording equipment in the courtroom was apparently faulty, so no record was available of that hearing.

After a plaintiff's verdict, plaintiff appealed, arguing the motion judge and the trial judge erred in denying the motion to amend. But because no record was made of either hearing, there was no transcript available for the Court of Appeals.

On appeal, plaintiff argued that he should have been allowed to assert a punitive damage claim because the materials submitted in support of his motion were sufficient to avoid the granting of a motion for a directed verdict on the issue of punitive damages at trial. Plaintiff argued that this is the only standard he must meet to be able to plead a punitive damage claim.

The Court of Appeals ruled that although the materials submitted by plaintiff in support of a motion to amend to add a punitive damage claim appeared to be sufficient to avoid the granting of a motion for a directed verdict on the issue of punitive damages at trial, that is not the only standard. The Court of Appeals ruled that ORCP 23 also grants the court the discretion to grant or deny the motions when "justice so requires."

The problem on appeal in Richardson was that the motion judge's order said he considered both the written submissions and the oral argument. And there was no transcript of the oral argument available on appeal, so there was no opportunity for the Court of Appeals to review plaintiff's claim of error.

Practice tip

Always make sure your hearings on these motions are on the record, and after the hearing ask the clerk to check to see if the electronic recording equipment was working properly.