Stumpf v. Continental Casualty Co. , 102 Or. App. 302 ( 1990 )

BUTTLER, P. J.,

dissenting.

I concur with almost all of the conclusions reached by the majority. However, contrary to the majority, I conclude that the evidence that defendant offered relating to Sias’ attendance and observations at the PAC meeting, that the PAC had voted on whether the case was defensible and that defendant’s evaluation of the defensibility of the case was affected by the PAC’s evaluation was not prohibited by ORS 41.675. Although I agree that evidence of the outcome of the vote was not admissible, I do not agree that “[t]he necessary inference [from the proffered evidence] is that the committee voted that the case was defensible.” 102 Or App at 306. If, for example, the PAC had voted 5 to 4 that defendant’s claim was not defensible, it is not inconceivable that the closeness of the vote might have led defendant reasonably to believe, from what it had heard and observed at the meeting, that the claim was defensible. Plaintiffs’ principal argument was that defendant did not obtain an independent evaluation of the claim or of Dr. Stiffs performance as a witness. The proffered evidence would have tended to rebut those arguments. Therefore, the exclusion of the evidence cannot be said to be harmless.

The majority states that the question of admissibility of the evidence is a close one; however, it concludes that the trial court did not abuse its discretion in excluding it. However, the evidence was either prohibited by the statute or it was not. If it was not prohibited, the court had no discretion to exclude it, because the evidence was not only relevant, it was material to CNA’s defense. CNA did not offer any “written reports, notes or records,” ORS 41.675(1)(2), or “any communication to that committee or the findings thereof,” ORS 41.675(3), which would have been inadmissible. Because the statute did not require exclusion of the evidence and because it was relevant, the court had no discretion to exclude it. OEC 402.

The trial court also erred in overruling defendant’s objection to plaintiffs’ inquiry on cross-examination of Hart, who was one of Dr. Stiffs attorneys in the principal malpractice action. On direct examination, Hart testified that he had believed Stiff at the time of the trial of that action and volunteered that he still believed him. On cross-examination, plaintiffs were permitted, over objection, to bring out that Hart, in a later medical malpractice action, had represented another doctor, that Stiff had been a witness for the plaintiff, and that Hart had argued to the jury that Stiffs opinion should not be believed, because, among other reasons, he was no longer in practice and was selling Amway products.

What Hart argued as an advocate in another case is irrelevant to Hart’s personal opinion of Dr. Stiff, given under oath in the present case. The evidence should have been excluded. Because it was offered as impeachment, the jury was permitted to discount Hart’s testimony that tended to show that defendant had made efforts to evaluate the case against Stiff and that Hart, as part of the evaluation, believed what Stiff had told him had happened concerning the alleged malpractice.

Accordingly, I would reverse and remand for a new trial.