Bond v. Reyes ( 2024 )

648 August 28, 2024 No. 610
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
JAMES KALEO BOND,
Plaintiff-Appellant,
v.
Erin REYES,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
22CV17060; A182563
Eva J. Temple, Judge.
Submitted August 1, 2024.
Corbin Brooks and Equal Justice Law filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer,
Senior Judge.
LAGESEN, C. J.
Affirmed.
Nonprecedential Memo Op: 334 Or App 648 (2024) 649
LAGESEN, C. J.
Plaintiff appeals a judgment denying his petition
for habeas corpus relief. Plaintiff contends that his custodi-
ans are being deliberately indifferent to his medical needs
in violation of his constitutional rights. He argues that the
trial court legally erred when it relied on the testimony of
a defense witness to deny relief. We ordinarily review the
denial of habeas corpus relief for legal error. Alexander v.
Gower, 200 Or App 22, 24, 113 P3d 917 (2005), rev den, 340
Or 34 (2006). However, we do not reach the merits of plain-
tiff’s arguments because they were not preserved in the trial
court. Accordingly, we affirm.
Plaintiff petitioned for habeas corpus relief, alleg-
ing that defendant was deliberately indifferent to his seri-
ous medical condition of undiagnosed chronic back pain by
denying him a Magnetic Resonance Image (MRI) for his
spine. See Billings v. Gates, 323 Or 167, 180-81, 916 P2d 291(1996) (stating standards for medical habeas corpus relief).
He also alleged that defendant subjected plaintiff to unnec-
essary rigor in failing to provide adequate diagnosis and
treatment of his back pain. See Bedell v. Schiedler, 307 Or
562, 770 P2d 909 (1989) (stating standards for unnecessary
rigor claims). Defendant denied all allegations, arguing that
plaintiff could not carry his burden to prove them. The case
went to trial before the court.
At trial, plaintiff offered the declaration of Dr. Mark
Baskerville, an attending intensivist in Oregon Health
& Science University’s intensive care units. Baskerville
reviewed plaintiff’s medical records from the correctional
facility and opined that plaintiff needed an MRI to evaluate
his back pain. Defendant offered the testimony of Dr. Steven
Hammond, a physician licensed in Washington. Hammond
also reviewed plaintiff’s medical records and opined that
plaintiff’s symptoms were consistent with generalized
chronic pain that did not warrant an MRI. Neither doctor
physically examined plaintiff, although Baskerville spoke
with him by phone.
The trial court denied relief in a ruling from the
bench. As to deliberate indifference, the court recognized
650 Bond v. Reyes
that “there is definitely a difference of opinion” regarding
the need for an MRI on plaintiff’s back and, based on that
finding of a difference of medical opinion, concluded that
plaintiff had failed to prove that defendant was deliberately
indifferent to plaintiff’s serious medical needs in failing to
provide him with an MRI. As to unnecessary rigor, the court
determined that defendant did not subject plaintiff to such
unconstitutional rigor. The court formalized its conclusions
in a written judgment.
Plaintiff appeals and argues that the trial court
erred “in concluding there was a difference of medical opin-
ion because defendant’s expert, Hammond, was not a quali-
fied expert on the subject matter, and Hammond applied an
incorrect legal standard in reaching his opinion.” Defendant
states that plaintiff did not preserve either argument. We
agree that plaintiff did not preserve either argument and
affirm for that reason.
In arguing that his argument regarding Hammond’s
qualifications as an expert witness under OEC 702 was
preserved, plaintiff points to statements made by his trial
counsel in closing argument:
“If Your Honor is looking at these experts, * * * , one who
plainly has the experience, direct hands-on care to opine
with integrity and with, * * *, expertise on this condition
[referring to Dr. Baskerville], and one that has never had
the experience, hands-on direct care, can’t remember treat-
ing anybody, * * *, and also has a finding against him of
for conduct that was malicious, oppressive or reckless, and
twenty-four cases with him as the named defendant, and
according to his testimony multiple preliminary injunc-
tions ordering his department to provide care [referring to
Dr. Hammond], * * *, it’s not hard to see who the qualified
expert is to opine on [plaintiff’s conditions].
“* * * * *
“[T]he only expert * * * to serve as Your Honor’s guide, is
Dr. Mark Baskerville.”
Those statements do not show that plaintiff pre-
served an argument relating to Hammond’s qualification as
an expert witness under OEC 702. Not only do they omit to
mention OEC 702 (neither plaintiff nor defendant raised any
Nonprecedential Memo Op: 334 Or App 648 (2024) 651
OEC 702 issues to the trial court), in context, it is clear that
plaintiff was making a straightforward argument that the
trial court should credit his witness over defendant’s witness
in the battle of the medical professionals presented to the
court. See State v. Woodbury, 289 Or App 109, 114, 408 P3d
267 (2017) (stating that, to qualify a witness as an expert
under OEC 702, the court must be presented with the oppor-
tunity to assess the particular qualifications of a witness)).
“It is well settled in our jurisprudence that an issue ordi-
narily must first be presented in the trial court before it may
be raised and considered on appeal.” Id. “That requirement
gives the trial court the chance to consider and rule on a
contention, thereby possibly avoiding an error altogether; it
also ensures fairness to the opposing party by permitting
the party an opportunity to respond to the contention.” Id.
at 114. Because plaintiff did not argue to the trial court that
Hammond is not a qualified expert under OEC 702, he failed
to preserve any argument that the trial court erred in rely-
ing on Hammond’s testimony to determine that there was a
difference in medical opinions as to plaintiff’s required care.1
Plaintiff’s second argument, that Hammond applied
an incorrect standard of care in reaching his opinion, is
also not preserved for the same reason. In arguing that the
argument was preserved, plaintiff points to the same state-
ments made in closing argument. Those statements do not
raise the issue about whether Hammond relied on an incor-
rect standard of care, and plaintiff did not otherwise argue
to the trial court, as plaintiff argues now, that it would be
legally erroneous for the court to rely on Hammond’s testi-
mony, in view of Hammond’s alleged misunderstanding of
the standard of care. Plaintiff does not argue that we should
review his arguments as raising plain error. Accordingly, we
affirm the judgment of the trial court.
Affirmed.
1
We have acknowledged that “the question whether an X-ray or additional
diagnostic techniques or forms of treatment is indicated is a classic example of a
matter for medical judgment.” Easley v. Bowser, 306 Or App 460, 464, 474 P3d 915
(2020) (quoting Estelle v. Gamble, 429 US 97, 106, 976 S Ct 285, 50 L Ed 2d 251(1976), reh’g den, 429 US 1066 (1977)). We have not, however, required that par-
ties submit expert testimony in support of their arguments in a medical habeas
case. Although parties may wish to submit their witness testimony as expert
testimony under OEC 702, there is no legal requirement to do so.