129
Argued and submitted June 9, 2020, affirmed December 8, 2021
Patricia M. HOFF,
Individually and as Personal Representative
of the Estate of David P. Hoff,
Plaintiff-Respondent,
v.
CERTAINTEED CORPORATION, et al.,
Defendants,
and
KAISER GYPSUM COMPANY, INC.,
Defendant-Appellant.
Multnomah County Circuit Court
15CV23996; A162891
503 P3d 457
This is a products liability and negligence action that involves exposure to
a product containing asbestos. The original plaintiffs, a husband and wife, now
a single plaintiff on behalf of herself and the estate of husband, brought claims
against multiple defendants, alleging that their products had caused husband’s
mesothelioma and resulting damages to both plaintiffs. After a jury trial, the
jury rendered its verdict against the only remaining defendant, and found that
defendant was strictly liable, that its negligence was a substantial factor in causing the mesothelioma, and that defendant’s percentage of fault was 35 percent.
On appeal, defendant argues that the trial court erred by denying its motion for
directed verdict, granting plaintiffs’ post-trial motion to amend their complaint
to seek a greater amount in noneconomic damages, and entering a judgment
against defendant that, contrary to ORCP 67 C, awarded noneconomic damages
for the loss-of-consortium claim in excess of the damages that had been alleged
in one of two parts of the complaint. Held: The trial court did not err by denying
defendant’s motion for directed verdict. Because plaintiffs did not file a second
amended complaint, the trial court’s ruling to allow plaintiffs’ post-trial motion
to amend was harmless, even if assumed to be error. And, the trial court did not
err by entering judgment on the consortium claim in the net sum awarded.
Affirmed.
Judith H. Matarazzo, Judge.
J. Aaron Landau, argued the cause for appellant. Also
on the briefs were Susan D. Marmaduke and Harrang Long
Gary Rudnick P. C.
James S. Coon argued the cause for respondent. Also on
the brief was Thomas, Coon, Newton & Frost.
130 Hoff v. Certainteed Corp.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Affirmed.
Cite as 316 Or App 129 (2021) 131
DeVORE, P. J.,
Defendant Kaiser Gypsum Company appeals from
a judgment for plaintiffs.1 David Hoff (Hoff), now deceased,
and Patricia Hoff brought this product liability and negligence action arising from Hoff’s alleged exposure to asbestos, which resulted in mesothelioma, an asbestos-related
disease. They alleged that Hoff suffered the disease as a
result of exposure to drywall joint compound manufactured
and sold by defendant.2
Defendant raises three assignments of error. Defendant contends that the trial court erred by (1) denying its
motion for directed verdict, (2) granting plaintiffs’ post-trial
motion to amend their complaint to seek a greater amount in
noneconomic damages, and (3) entering a judgment against
defendant that, contrary to ORCP 67 C, awarded noneconomic damages for the loss-of-consortium claim in excess of
the damages that had been alleged in one of two parts of the
complaint.
We conclude that (1) denial of defendant’s motion
for directed verdict was proper because there was sufficient
evidence from which a jury could find that Hoff was exposed
to defendant’s product in the course of his work; (2) any
arguable error in allowing plaintiffs’ motion to amend their
complaint after trial is harmless because plaintiffs did not
actually file a second amended complaint; and (3) the judgment complied with ORCP 67 C because, notwithstanding
inconsistent figures on consortium damages in the operative complaint—an inconsistency that defendant repeatedly
failed to seek to clarify—the judgment entered was not in
excess of the amount that was sought in the prayer. Making
those conclusions, we affirm.
1
This action was originally brought by two plaintiffs—husband and wife—
David Hoff and Patricia Hoff. David Hoff died after the jury returned its verdict and before the trial court entered the judgment. The trial court substituted
Patricia Hoff as personal representative of his estate in his place. Patricia Hoff is
the only plaintiff in this appeal. When we refer to the proceedings below, we use
“plaintiffs.”
2
There were 10 defendants named in the lawsuit, the case went to trial
against three named defendants, and two of those defendants settled prior to
jury deliberations. Kaiser Gypsum Company, Inc. is the only defendant appearing on appeal and is the party to whom we refer as “defendant.”
132 Hoff v. Certainteed Corp.
“We review the denial of a motion for directed verdict for any evidence to support the verdict in favor of the
nonmoving party.” Lyons v. Beeman, 311 Or App 560, 563,
494 P3d 358, rev den,
368 Or 513 (2021) (internal quotation marks omitted). We view the evidence in the light
most favorable to plaintiffs, “and, if the evidence supports
more than one conclusion, we leave it for the jury to decide.”
Id. at 564. Unless there is no evidence from which the jury
could have found the facts necessary to support plaintiffs’
claim, we will not disturb the jury’s verdict. Id.; Or Const,
Art VII (Amended), § 3. We state the facts according to that
standard.
FACTS
Hoff worked for R.A. Gray Company (Gray), a general contractor, from late 1973 to sometime in 1980 and then
again from the early 1990s until he retired in 2013. Hoff was
diagnosed with mesothelioma in August 2015. In September
2015, Hoff brought claims against 10 defendants, including
Kaiser Gypsum Company, that he alleged had manufactured or distributed asbestos-containing products to which
he was exposed and that he alleged caused his disease.
Hoff alleged that the asbestos-containing drywall products
caused cancer when inhaled and that asbestos fibers were
released “into the breathing zone of individuals working
with or near the product, particularly during routine and
anticipated use of the product.” Hoff’s wife brought claims
against the same defendants for loss of consortium arising
out of her husband’s injury.
Hoff was a carpenter whose primary skills were
framing and finish carpentry, jobs that were commonly done
while drywall taping and finishing were underway on Gray
job sites. He also frequently helped to sweep up the dust created by the sanding of drywall joint compound at job sites.
Defendant’s drywall joint compound contained asbestos for
approximately two of the years that Hoff worked for Gray—
from when he began working there in late 1973 until late
1975.3
3
Defendant’s joint compound contained asbestos until November 24, 1975,
when defendant began to use a new formula that did not contain asbestos.
Cite as 316 Or App 129 (2021) 133
During the trial, plaintiffs provided testimony by
two witnesses, Nemeth and Croft, who worked for Gray
doing drywall finishing. Each of their tenures at Gray overlapped with Hoff’s for some period of time. Nemeth, who
worked at Gray for a year or less in the early 1970s as a
drywall finisher, testified about the drywall finishing process and explained that joint compound, which he referred
to as “mud,” and tape are used to cover the joints of drywall sheets (sheetrock) that are hung.4 Several coats of mud
are applied, and each coat is sanded so that the walls and
ceilings become smooth. The sanding process is extremely
dusty, and the room gets foggy because the dust floats in
the air. After a room is sanded, it “would be very—very
foggy with dust. Foggy with dust, dust on the floor, dust
everywhere.” During the time he worked at Gray, Nemeth
recalled using four brands of joint compound that he said
were “commonplace” at Gray. Although he could not identify specific jobsites where he used specific products, one
was defendant’s product. When asked to explain his usage
of the word “commonplace,” Nemeth said, “They usually use,
generally, certain brands. While they used many different
brands, they generally used certain brands, and these—
those are the brands I remember using.” He also testified
that “[t]hey would be on most every job. … [T]he reason I
remember these brands is because that’s what they mostly
used.”
Nemeth testified that he ran across Hoff a few times
on the different jobs he worked on for Gray. Although he
could not specify the names of the projects where he recalled
seeing Hoff, Nemeth recalled two commercial jobs—office
buildings—located in Tigard and Beaverton where he saw
Hoff on site. One particular time, at an office building in
Beaverton, Nemeth was at the site to do some drywall
patching, and he spoke with Hoff at length. Hoff had been
sweeping in a hallway at the time, as superintendents sometimes did toward the end of a job.
4
On direct examination, Nemeth estimated that he worked at Gray from
early or mid-1972 to early or mid-1973. During cross-examination, he was
reminded that at an earlier deposition he had testified that he worked there from
1973 to 1974; he acknowledged that he did not remember the exact dates. In
either case, his work at Gray was during the time when defendant’s joint compound contained asbestos.
134 Hoff v. Certainteed Corp.
Croft worked at Gray in the 1970s for approximately
seven years.5 He and two other employees had the primary
responsibility for installing the drywall and finishing it on
the various job sites. His duties involved sanding drywall
joint compound, and he explained that there was not any
way to sand without creating dust. Sanding was exhausting
and messy work, and sometimes he would have to sand for
four hours at a time. Similar to Nemeth’s testimony, Croft
explained that dust filled the atmosphere, and the people
in the room would get covered in dust. In addition, the dust
would be transported throughout the building by the HVAC
system, and it was not confined to the room where sanding
was taking place.
Some of the jobs Croft worked on were quite large—
three or four-story buildings with as much as 10,000 feet
per floor—and there would be a lot of trades working on the
buildings at the same time. Croft worked on different jobs
with Hoff as a peer and as his supervisor. He testified that
he recalls projects where he was on site doing his job when
Hoff was also present at the worksite. Croft named some
specific projects where he recalls having seen Hoff, and he
also stated that he “probably was in contact with [Hoff] on,
who knows, it could have been 20 or 30 jobs. It might even
be more, I don’t know; but we were—we were on a lot of common work sites.” He recalled working as the drywall finisher, which included sanding, at some of the same projects
that Hoff also identified as projects at which Hoff worked in
the 1973 to 1975 time period.
Croft named four major brands of joint compound
that Gray used while Croft worked for Gray, one of which
was defendant’s product. Croft could not place a particular
joint compound brand at a specific job site but stated that
they were used “very often” on Gray’s projects. He said that
they used “huge quantities” of those four products:
“[T]hey would deliver the products on a pallet, and there’d
be, oh, probably 20 or 30 boxes per pallet; and they’d deliver
several pallets, and sometimes we’d go through a few more
5
Croft was unsure of the exact years—he originally testified that he thought
it was 1970 to 1977, but later agreed that it could have been 1972 or 1973 to 1978
or 1979.
Cite as 316 Or App 129 (2021) 135
pallets. So we used hundreds of boxes and buckets of the
materials.
“…
“… [F]or [each] job, probably, depending on the size of the
job, from a little job, maybe 20 boxes or buckets; and for a
bigger job, it could be hundreds.”
When asked whether those four products were used on the
same projects where he worked with Hoff, he said “yes” and
explained that they “used those products on a regular basis;
[he] was on numerous jobs with David Hoff; and, to draw a
logical conclusion, those products were used by [him] on jobs
where [Hoff] was present … on a regular basis.” Croft also
explained that the other two drywallers that he worked with
used the same products; he knew this because they would
share the buckets of product while working on a project.
Hoff’s testimony was that, after his cancer diagnosis, he tried to figure out whether he had had exposure
to asbestos during his career.6 He determined that drywall
compounds were “probably the predominant ones.” He testified about his work history at Gray, including the projects
he had worked on, what his job duties as a carpenter had
been, and whether drywalling had taken place at a particular project. He identified five work projects where he worked
before 1976 that also involved drywall installation and finishing.7 One of those projects was a commercial complex that
included an office building and was approximately 30,000 to
35,000 square feet in size. Another project was a house that
was approximately 4,500 square feet. And another was a
commercial building that was 15,000 to 18,000 square feet.
Hoff explained that it was “very common” to be
doing his work as a carpenter at the same time that other
people were doing drywall application and finishing on the
same project. He said that he “would get [to a project] when
they would be doing more of the siding or the finish end of
6
Hoff’s testimony had been taken at an earlier deposition, which was then
presented to the jury at trial.
7
We note that, at oral argument, the parties agreed that the evidence at
trial demonstrated that there were three sites where Hoff worked and where
Gray’s own employees, rather than subcontractors, did the drywall work.
136 Hoff v. Certainteed Corp.
the projects where the drywall was going on” and that he
was “often present for the taping and the finishing … process.” They were not on top of each other but were in the
building at the same time; it was a way of managing the
project to do more than one phase at a time. He explained,
similarly to other witnesses, that drywall sanding is a dusty
process and that part of his job to help keep a project moving
along—even after he became a superintendent—was to use
a broom to clean up the dust that had settled on the floors.
Hoff also testified that defendant’s product was one of the
joint compounds that Gray used in the 1970s.
MOTION FOR DIRECTED VERDICT
At the close of all the evidence, defendant moved
for directed verdict under ORCP 60 on the issue of exposure to asbestos, contending that plaintiffs had failed to
provide evidence that Hoff had been exposed to defendant’s
asbestos-containing joint compound at the sites where he
had worked.8 In defendant’s view, there was no basis for
the jury to conclude without speculation that Hoff had been
exposed to its product. Plaintiffs argued that the evidence
was sufficient for the jury to make reasonable inferences to
find that defendant’s joint compound had been used on one
of the job sites where Hoff had worked with Croft or Nemeth
and that Hoff had therefore been exposed to it. The trial
court denied defendant’s motion.
In its first assignment of error, defendant contends
that the trial court erred in denying its motion for directed
verdict. The parties agree that it was plaintiffs’ burden
to show that it was more probable than not that Hoff was
exposed to defendant’s joint compound during the period
when it contained asbestos. Defendant reprises its contention that there was no evidence at trial from which a reasonable juror could find that Hoff had been exposed to defendant’s asbestos-containing joint compound. Defendant’s
contention is based on a two-part argument that plaintiffs
were required to provide evidence of exposure to defendant’s
product at a particular location and that plaintiffs did not
8
Defendant had informed the trial court of its intention to move for directed
verdict earlier in the case; as a matter of scheduling, the motion was argued to
the trial court while the jury was deliberating.
Cite as 316 Or App 129 (2021) 137
provide evidence that Gray had used defendant’s asbestos-containing product at any particular work site when Hoff
had been present.
Plaintiff responds that, construing the evidence and
all reasonable inferences in her favor, there was evidence in
the record from which a reasonable juror could have found
it more likely than not that defendant’s product had been
present on at least one of the sites where Hoff worked before
1976. See Trees v. Ordonez, 354 Or 197, 218-19,
311 P3d 848
(2013) (“[W]e review to determine whether there was any
evidence from which a reasonable jury could find that it was
more probable than not that defendant’s alleged negligence
… caused plaintiff’s injury.”). Plaintiff argues that, considering the number of job sites where Hoff had potential
exposure to defendant’s joint compound and the number of
brands of joint compounds that Gray commonly or regularly
used, it was permissible for the jury to infer exposure.
Defendant relies on Purcell v. Asbestos Corp., Ltd.,
153 Or App 415,
959 P2d 89, adh’d to as modified on recons,
155 Or App 1,
963 P2d 729 (1998), in support of its contention that plaintiffs were required to prove that Hoff had been
exposed to its product at a particular location. In Purcell, the
plaintiff was exposed to asbestos during his 35-year employment with several employers at numerous job sites. He had
worked as an electrician and had been exposed to airborne
asbestos fibers from several types of asbestos products from
multiple sources at more than 100 sites. He brought a lawsuit against 18 defendants. Id. at 418-19.
On appeal, two of the defendants challenged the
trial court’s denial of their motions for directed verdict.
They argued, in part, that the plaintiff had “failed to offer
adequate proof of his exposure to their asbestos-containing
products, as distinct from products of other manufacturers,
to permit the inference that their products caused his disease” and that the “plaintiff failed to provide sufficient evidence to link their products to the work sites at which he
sought to show that he was exposed to airborne asbestos
fibers.” Id. at 420, 424. We explained that the plaintiff’s “evidence was directed at showing that one or both of the defendants’ products were located at various sites at the times
138 Hoff v. Certainteed Corp.
that plaintiff worked there.” Id. at 424 (emphasis added). We
concluded that,
“[a]lthough the parties make detailed site-by-site arguments about the proof of plaintiff’s exposures to defendants’
products, it is unnecessary for us to engage in similar detail
in our discussion, given the legal standard that we have
held applies to the question. Plaintiff’s evidence sufficed to
allow the jury to infer that [the plaintiff] was exposed to
asbestos-containing products of both defendants, singly or
in combination, at each of the work locations that the trial
court allowed the jury to consider.”
Id. We held that the trial court did not err in denying the
defendants’ motions for directed verdict. Id. at 426.
Defendant argues that Purcell stands for its proposition that plaintiffs were required to prove that Hoff was
exposed to its product at a particular job site. However, we do
not agree that the test is as stringent as defendant suggests.
In Purcell, the evidence happened to have been sufficient
for the jury to infer that the plaintiff had been exposed at
particular sites, but we did not hold that all plaintiffs must
prove their case in that way. We observed, “[O]ur review is
limited to whether the evidence was adequate to allow the
jury to find what it did.” Id. at 425. The key was not that the
evidence showed exposure at each work site but simply that
the evidence showed exposure to the defendants’ products.
In this case, plaintiffs were required to prove that
it was more likely than not that Hoff had been exposed to
defendant’s asbestos-containing product at one or more
work sites. Here, there was evidence that Croft, a drywall
worker, saw Hoff on 20 to 30 job sites. Prior to 1976—during
a two-year time period when defendant’s product contained
asbestos—Hoff identified five job sites at which he was
present and where drywall work was being done. Three
witnesses—Nemeth, Croft, and Hoff—testified that defendant’s product was used in the 1970s by drywallers on Gray’s
job sites. Nemeth and Croft testified that defendant’s product
was one of four joint compounds that was commonly used.9
9
They each named four brands, not all of which were the same ones named
by the other; considered together, there were six brands that were commonly
used.
Cite as 316 Or App 129 (2021) 139
Nemeth was employed by Gray only during the timeframe
when defendant’s product contained asbestos, and Nemeth
testified that defendant’s product, among others, was used
on Gray’s job sites. Croft explained that, depending on the
size of the job, hundreds of packages of joint compound could
be used at a worksite. Both witnesses who performed drywall work testified that they had encountered Hoff on a job
site more than once.
We repeat what our question is and what it is not.
As in Purcell, our question is whether the evidence permits
a reasonable inference that, more likely than not, Hoff was
exposed at some time to defendant’s asbestos-containing
product. Unlike Purcell, we are not asked to consider whether
there was sufficient evidence to support medical causation.
In regard to circumstantial evidence and reasonable inferences, we have stated:
“Whether particular circumstantial evidence is sufficient to support a particular inference … is a legal question for a court to decide. There is a difference between
inferences that may be drawn from circumstantial evidence and mere speculation. Reasonable inferences are
permissible; speculation and guesswork are not.”
State v. Bivins, 191 Or App 460, 467,
83 P3d 379 (2004) (citations and internal quotation marks omitted). We also stated
that we agreed with a description by federal courts that
“[t]he line between a reasonable inference that may permissibly be drawn by a jury from basic facts in evidence and an
impermissible speculation is not drawn by judicial idiosyncrasies. The line is drawn by the laws of logic. If there is an
experience of logical probability that an ultimate fact will
follow a stated narrative or historical fact, then the jury is
given the opportunity to draw a conclusion because there is
a reasonable probability that the conclusion flows from the
proven facts.”
Id. (internal quotation marks omitted).
Given our standard of review, we conclude that
the evidence was sufficient for the jury to infer that over
a two-year period, Hoff would have been exposed to defendant’s product that was commonly used on Gray work sites
140 Hoff v. Certainteed Corp.
for drywall work. Defendant’s product contained asbestos
during that time. Defendant’s product, among others, was
on Gray’s job sites. Hoff worked at Gray’s job sites. A reasonable juror could find that defendant’s product was used on
at least one of the work sites where drywall work occurred
in Hoff’s presence or where drywall dust was created that
Hoff had exposure to—such as during sweeping and cleaning up the dust. The common use of defendant’s joint compounds, their recurring opportunity for use at multiple job
sites, the volume of product that was used at larger jobs, and
the confirmation of the product’s use by multiple witnesses,
collectively, makes reasonable the inference that they were
used when Hoff worked. The record, viewed in the light most
favorable to plaintiff, provides sufficient evidence for a finding that Hoff was exposed to defendant’s product. Therefore,
we affirm the trial court’s denial of defendant’s motion for
directed verdict.
PLAINTIFFS’ MOTION TO AMEND
Defendant’s second and third assignments of error
involve uncertainty about the pleading of damages for loss
of consortium. An account of that uncertainty relates to
both assignments.
Plaintiffs’ initial complaint was filed in September
2015. The trial court permitted plaintiffs to amend their
complaint to add punitive damages with an amended complaint in March 2016. In the “damages” allegations in the
body of the amended complaint, plaintiffs allege noneconomic damages for Hoff himself “in the amount of no less
than $5,000,000”; medical expenses for Hoff “in the amount
of no less than 250,000”; and loss-of-consortium damages
“in the amount of $1,000,000” for Hoff’s wife, Patricia Hoff.
Following those allegations, the amended complaint contains a prayer for judgment against defendants that, in
part, repeats the damage amounts alleged in the body of
the complaint for Hoff, but seeks $2,000,000 for Patricia
Hoff’s loss-of-consortium claim. Defendant did not file a
motion to prompt plaintiffs to make more definite and certain which of the two sums was sought for her consortium
claim. See ORCP 21 D (“[T]he court may require the pleading to be made definite and certain by amendment when
Cite as 316 Or App 129 (2021) 141
the allegations of a pleading are so indefinite or uncertain
that the precise nature of the charge … is not apparent.”)
Instead, defendant simply answered. Defendant’s answer
generally denied that its products caused or contributed to
plaintiffs’ alleged damages.
At trial, defendant submitted a proposed jury instruction regarding the loss-of-consortium claim; it included a
sentence stating, “The amount of noneconomic damages for
loss of consortium may not exceed the sum of $1,000,000.”
Without objection, the trial court did not give that instruction to the jury. During colloquy with counsel to discuss the
instruction to be given for noneconomic damages regarding Hoff himself, counsel for one of the other codefendants
(still in the case at the time) and counsel for plaintiffs proposed that the last sentence of the uniform jury instruction—
which provides for a limit to the damage amount—be
removed. In response, the trial court stated, “All right. If
nobody else cares I don’t care.” The parties next discussed
the instruction to be given regarding loss of consortium. The
trial court stated, “I don’t have a preference one way or the
other whether you keep in the ‘may not exceed’; but you didn’t
on the other, so do you want that struck as well?” Plaintiffs’
counsel responded, “Just take it out and be consistent, Your
Honor.” Defendant did not object. As a consequence, the jury
was not instructed that there was any limit on the amount of
damages they were to decide on. Defendant has not assigned
error to the trial court’s failure to have given its instruction
limiting the consortium claim to $1,000,000.
The jury considered a special verdict form when
only one defendant remained in the case after the conclusion of the evidence. Others had settled. The jury determined that defendant Kaiser Gypsum was strictly liable,
that its negligence was a substantial factor in causing Hoff’s
mesothelioma, and that defendant’s percentage of fault relative to other, settled, former parties was 35 percent. The
jury’s verdict found losses of $750,000 for medical expenses,
$4,000,000 for Hoff’s noneconomic damages, and $4,000,000
for Patricia Hoff’s noneconomic damages. Defendant did not
object to the amount of the verdict as exceeding the damages alleged in the pleadings or otherwise claim that there
142 Hoff v. Certainteed Corp.
was any other irregularity in the proceedings involving the
verdict.
Both parties filed post-trial motions. Plaintiffs filed
a post-trial motion for leave to amend the complaint under
ORCP 23 B to conform with the evidence adduced at trial.
Specifically, plaintiffs sought to
“change the claimed damages for economic loss from medical bills from not less than $250,000 to $750,000 …; the
claimed loss of consortium for Mrs. Hoff from damages
… ‘in the amount of $1,000,000’ to ‘in the amount of
$4,000,000;’ [and] the prayer for relief for Mrs. Hoff’s consortium claim from ‘$2,000,000’ to ‘$4,000,000.’ ”
Plaintiffs noted that the amended complaint had contained
a drafting error in that it had alleged $1,000,000 of noneconomic damages for Patricia Hoff but requested $2,000,000
in the prayer at the conclusion of the complaint.
Defendant filed a post-trial motion to reduce the verdict to conform to the pleadings and the evidence. Defendant
asked the trial court to reduce the medical expense award to
reflect the amount of medical expenses that was supported
by evidence plaintiffs had presented to the jury. Defendant
also asked the trial court to reduce the verdict for Patricia
Hoff’s noneconomic damages to $1,000,000—the amount
alleged in the main body of plaintiffs’ amended complaint.
Defendant did not file a motion, then or later, for relief from
judgment under ORCP 71.10
The net result of the trial court’s rulings on the
motions was that the trial court granted defendant’s motion
to limit economic damages, but not the consortium damages, while granting plaintiffs’ motion to amend as to the
consortium claim. Plaintiffs’ counsel noted that the new
complaint, yet to be filed, would become the operative complaint, and the court agreed. Plaintiffs, however, did not
actually file an amended complaint that reflected the permitted amendments.
The trial court subsequently entered a general
judgment and money award. That judgment reflects that, at
10
In its opening brief, defendant explains that ORCP 71 B did not apply
under the circumstances.
Cite as 316 Or App 129 (2021) 143
a post-trial hearing the trial court had reduced the medicalexpense award. The judgment states that defendant’s
fault of 35 percent, after the verdict, results in defendant’s
total liability for $2,919,473.50. That total is comprised of
$119,473.50 for medical expenses, $1,400,000 in noneconomic damages for Hoff, and $1,400,000 in noneconomic
damages for Patricia Hoff.
In its second assignment, defendant asserts that
the trial court erred in granting plaintiffs’ post-trial motion
to amend their complaint by increasing the amount of loss
of consortium damages. In response, plaintiff argues that,
if the trial court so erred, that error was harmless because
they never filed a second amended complaint, leaving the
first amended complaint in place as the operative complaint.
Defendant agrees that the first amended complaint is the
operative complaint, but argues that the trial court’s granting of the motion was not harmless because the court proceeded as though the second amended complaint had been
filed and permitted an award of $1,400,000 in loss of consortium damages (35 percent of $4,000,000). We agree with
plaintiff that any alleged error in granting the motion to
amend was or would be harmless. The second amended complaint was not filed. The first amended complaint remained
the operative complaint.
Nevertheless, defendant insists that it was harmed
because an award was entered against it in conformance
with the proposed amended pleading. However, that argument is misdirected. That claimed harm is not the result of
permission to file a second amended complaint, which was
never filed. Rather, that claimed harm is a question about
the consistency of the complaint and judgment. The challenge to that judgment is defendant’s third assignment of
error, to which we now turn.
ENTRY OF JUDGMENT
For its third assignment, defendant asserts that
the trial court erred in entering a judgment against it that
awarded noneconomic damages on the claim for loss of consortium in excess of the damages that, earlier in the body
of the complaint, plaintiffs alleged was suffered. In defendant’s view, that initial allegation asserted that Patricia
144 Hoff v. Certainteed Corp.
Hoff sustained damage “in the amount of $1,000,000” for
loss of consortium, and defendant relied on that allegation
as the maximum liability for her claim. The jury’s verdict
determined that Mrs. Hoff suffered $4,000,000 as noneconomic damages and, after attribution of defendant’s fault
of 35 percent, the judgment rendered defendant liable for
$1,400,000 in her noneconomic damages. Defendant contends that the judgment did not comply with ORCP 67 C
and the Fourteenth Amendment to the United States
Constitution. Defendant argues that entry of the judgment
was error because defendant was not given notice that it
could be exposed to such damages. Defendant asks that we
modify the judgment.
In response, plaintiff asserts that, because the complaint’s prayer requested noneconomic damages for Patricia
Hoff in the amount of $2,000,000, defendant had notice that
it could be exposed to damages up to that amount. Plaintiff
stresses that ORCP 67 C concerns “the amount prayed for.”
As a result, plaintiff concludes, the trial court did not err in
entering a judgment that contained an award for $1,400,000,
which was still less than “the amount prayed for.”
We are not persuaded by plaintiff’s arguments
that defendant invited error or that, because it failed to
preserve an objection to the verdict, defendant is precluded
from asserting its argument about entry of judgment. We
conclude, however, that the remaining basis for appeal is
narrow. That basis is only defendant’s challenge to the entry
of judgment founded on ORCP 67 C, and, ultimately, that
challenge cannot succeed.
We begin by observing what defendant has not
claimed as error. Defendant says in its reply brief that
“defendant’s appeal does not concern instructional error.”
Defendant continues, “[I]rrespective of whether the verdict
was contrary to the law, this appeal challenges the judgment
under Rule 67.” (Emphasis in original.) In effect, defendant
makes direct and indirect concessions that are appropriate.
Defendant did not object to, nor assign error to, the failure
to give its instruction limiting damages. See ORCP 59 H
(requirement for exception to jury instructions). Defendant
did not object to receipt of the verdict as employing a raw
Cite as 316 Or App 129 (2021) 145
number for Patricia Hoff’s noneconomic damages in excess
of her allegation in the body of the complaint. See Estate of
Maria Refugio Ibarra v. Lilly,
245 Or App 294, 295-96,
263
P3d 1053 (2011) (failure to object to the verdict before the jury
was discharged waived the objection later raised by motion)
(citing Building Structures, Inc. v. Young,
328 Or 100, 108,
968 P2d 1287 (1998))). Defendant did not file a motion under
ORCP 71 to set aside the judgment. Finally, defendant has
not explicitly or appropriately assigned error to the denial
of its post-trial motion to reduce the verdict regarding the
loss-of-consortium damages. See ORAP 5.45 (requirements
for an assignment of error). Therefore, we do not understand
defendant to argue that the trial court erred by not instructing the jury that it needed to limit the amount of damages
it awarded; we do not understand defendant to argue that
the court erred in accepting the jury’s verdict with a preliminary consortium loss (i.e., undivided among defendant and
settled parties) that was higher than the prayer itself, and
we do not understand defendant to challenge the denial of
any post-trial motion. Defendant challenges something else.
Defendant challenges the entry of the judgment. We
consider but reject that narrow challenge under the terms of
its own rationale. As its source of authority, defendant relies
on ORCP 67 C, which states:
“Every judgment shall grant the relief to which the
party in whose favor it is rendered is entitled. A judgment
for relief different in kind from or exceeding the amount
prayed for in the pleadings may not be rendered unless reasonable notice and opportunity to be heard are given to any
party against whom the judgment is to be entered.”
(Emphases added.) Although defendant contends that the
Fourteenth Amendment to the United States Constitution
protects a defendant from being deprived of property without first being provided reasonable notice and an opportunity to be heard, it does not develop a separate constitutional
argument in that regard and relies on ORCP 67 as the basis
for its argument. We do not consider defendant’s undeveloped constitutional argument. See PGE v. Ebasco Services,
Inc., 353 Or 849,
306 P3d 628 (2013) (where the due process argument was developed and violation of ORCP 67 C
146 Hoff v. Certainteed Corp.
occurred, no constitutional violation occurred because the
defect in prayer was apparent on the face of the complaint
and defendant neglected multiple opportunities to challenge
the defect). Instead, we consider defendant’s procedural
challenge under ORCP 67.
ORCP 67 C provides that a judgment may not be
rendered for relief exceeding the amount “prayed for in the
pleadings” unless reasonable notice and opportunity to be
heard are given. Our cases show that statements in the
prayer suffice, even when the earlier text of the complaint
may seem lacking. We have repeatedly held that the prayer
in a complaint provides notice to the opposing party as to
the relief being requested. In Bruce v. Cascade Collections,
Inc., 199 Or App 59,
110 P3d 587, rev den,
339 Or 66 (2005),
we considered the issue of a trial court’s denial of an award
to the plaintiff of attorney fees based on its conclusion that
the plaintiff had failed to adequately plead an entitlement
to fees. The prayer of the plaintiff’s first amended complaint
sought judgment against the defendant for various damages
“together with her costs and expenses of this action and
reasonable attorney fees.” Id. at 61 (emphasis omitted). We
stated that “it makes no difference … whether the defendant was fairly alerted by the allegations of the first claim
for relief or by the content of the prayer describing the relief
sought for that claim,” and we remanded for the trial court to
reconsider the plaintiff’s request. Id. at 66, 68 (internal quotation marks omitted). See Little Whale Cove Homeowners
Assoc. v. Harmon,
162 Or App 332, 342,
986 P2d 616 (1999)
(statements in the defendant’s prayer were sufficient to put
plaintiff on notice that they intended to seek attorney fees);
cf. Lewis v. Dept. of Rev.,
294 Or 139, 143,
653 P2d 1265
(1982) (observing that, in other cases, the plaintiffs’ express
prayers for attorney fees had “put the defendant on notice
that should plaintiff prevail defendant might be liable for an
award of attorney fees”).
On the other hand, we do enforce ORCP 67 C, holding that a default judgment may not be entered to the extent
that it exceeds the amount sought in the prayer for relief. See
Montoya v. Housing Authority of Portland, 192 Or App 408,
416,
86 P3d 80 (2004) (determining a violation of ORCP 67 C
and due process where the amount of economic damages
Cite as
316 Or App 129 (2021) 147
exceeded the prayer); see also Kirresh v. Gill,
309 Or App
47, 66-67,
482 P3d 76 (2021) (determining violation of due
process warranting relief under ORCP 67 C where forfeiture
remedy had not been asserted in the operative complaint or
adequately raised during the proceedings leading up to the
judgment).
The decision in PGE, 353 Or 849, is instructive.
In the prayer of its breach of contract claim, PGE alleged
that its liability insurance carriers were “liable to reimburse [PGE] the settlement of the underlying lawsuit.”
Id. at 851. It did not allege the dollar amount of damages
that it sought. PGE obtained a default judgment against
one of its carriers, Lexington, in the amount of $800,000.
Lexington sought unsuccessfully to have that judgment set
aside under ORCP 71 C. The matter was ultimately decided
by the Supreme Court, which first considered ORCP 67 C,
holding that because PGE’s complaint did not “seek any
amount of damages,” the default judgment awarding damages violated ORC 67 C.
Id. at 858.
That did not mean, however, that the judgment
violated the notice requirement of due process. Id. at 860.
The court observed that the pleading defect involving the
amount of damages was apparent on the face of the complaint when Lexington was served with the complaint.
Id. at 864. Although Lexington had been defaulted, the
court observed that Lexington’s challenge to the pleading
defect was something that Lexington could have sought to
remedy in multiple ways before judgment, such as a motion
to make more definite and certain under ORCP 21 D or a
motion to dismiss for failure to state a claim under ORCP
21 A(8).
Id. at 864-65. The court concluded that Lexington’s
challenge came “too late.”
Id. at 865. The court did not set
aside the judgment for $800,000.11
In the case at hand, plaintiffs’ pleading defect is different than that in the PGE decision, but defendant’s failure
11
The Supreme Court remanded the case to the Court of Appeals to determine whether the amended complaint, which sought additional relief in the form
of attorney fees but which was not served on Lexington, could be set aside and
whether the trial court erred in denying the motion on the ground of excusable
neglect. Id. at 865-66.
148 Hoff v. Certainteed Corp.
here is similar to Lexington’s failure there. Accordingly, the
PGE decision provides a contrast and a parallel. The contrast is that, here, plaintiffs pleaded a sum certain in their
prayer for noneconomic loss of consortium damages. Thus,
the pleading problem is an inconsistency between an earlier
alleged sum and a later prayer for sum, not a failure to pray
for an amount of damages.
Even so, defendant argues that the prayer of
$2,000,000 did not give it notice of exposure to a judgment
of $2,000,000—or even $1,400,000—when an earlier allegation in the complaint was $1,000,000. We recognize that, as
a matter of notice, the difference between the two numbers
in the amended complaint might have been puzzling or confusing. For that reason, the Supreme Court’s observation,
when considering notice for purpose of due process, provides
a useful parallel for our consideration of notice for purpose
of ORCP 67 C.
Defendant litigated the case from beginning to end,
and defendant had several opportunities to verify or clarify its potential exposure.12 Most obviously, defendant, could
have filed a motion under ORCP 21 D to request that the
complaint be made more definite and certain in regard to
damages, but defendant did not file such a motion. Before
the jury deliberated, defendant could have pursued a limit
on consortium damages in instructions to the jury; but,
during the trial court’s discussion with counsel, defendant did not object to the removal of language that would
have limited consortium damages. Finally, when the jury
returned its verdict, defendant could have objected to
the verdict, if defendant believed that the raw figure of
$4,000,000 for consortium damages was impermissible or
that the net result of the verdict exceeded the sum sought in
judgment.13 However, defendant did not object to the verdict.
12
We also recognize that a defendant might calculate its litigation risk
with a hope that damages may be divided with other defendants. Yet, defendant
knew at the outset that other defendants might settle, leaving defendant the lone
defendant at the time the jury was to begin deliberations, as happened here.
There was no assurance of how fault might be divided, if at all, when the operative complaint sought a judgment of $2,000,000 in consortium damages against
defendant.
13
We are not asked to and we do not opine on the result of such objections.
Cite as 316 Or App 129 (2021) 149
In other words, the figures on consortium damages were an
obvious inconsistency that defendant could readily see and
had many chances to remedy but did not.
That inconsistency does not mean that, in these circumstances, the operative complaint did not provide notice
as required by ORCP 67 C for entry of a judgment. To borrow the terms of the rule, the amount that plaintiffs “prayed
for” as a judgment against the lone defendant was greater
than the amount that the judgment actually awarded. After
defendant’s repeated failures to clarify or limit the consortium damages, the prayer afforded defendant notice that
its net exposure for damages on the consortium claim was
$2,000,000. The judgment’s entry with a consortium award
for $1,400,000 does not violate ORCP 67 C.
CONCLUSION
In sum, the trial court did not err, on this record,
by denying defendant’s motion for directed verdict. Because
plaintiffs did not file a second amended complaint, the trial
court’s ruling to allow plaintiffs’ post-trial motion to amend
is harmless, even if assumed to be error. And, the trial court
did not err by entering judgment on the consortium claim in
the net sum awarded.
Affirmed.
