A recent decision by the Oregon Supreme Court has clarified the requirements for an ORCP 47 E declaration to overcome a motion for summary judgment in the context of a negligence action. The case, Linda Two Two v. Fujitec America, Inc., 355 Or 319 (2014), arose from an action in negligence related to injuries caused by an elevator falling. The defendant moved for summary judgment, and the plaintiff resisted in part by providing an ORCP 47 E declaration stating that she had an expert that had rendered an opinion or provided facts that would be sufficient to defeat summary judgment regarding the allegation that the defendant “was negligent in [its] service and maintenance” of the elevator. The defendant argued that the language of the declaration failed to defeat the motion for summary judgment because it dealt only with the standard of care and failed to address the element of causation.
The Court first reiterated the longstanding principle that when a party chooses to enumerate the elements on which an expert will testify in a declaration, the enumeration must give notice of all elements on which the expert may testify. The Court then concluded that the declaration was sufficient to overcome summary judgment, despite the fact that it did not directly reference causation. The Court based its conclusion on the fact that the declaration referenced plaintiff’s negligence “claims” and reasoned that a reasonable person could understand that to mean that the expert would testify about the entire negligence claim. Moreover, the fact that the declaration stated that the expert had “rendered an opinion . . . [that is] a sufficient basis for denying the motion for summary judgment” could be understood to create a question of fact on all issues in the negligence claim for which expert testimony would be necessary. With that in mind, the Court observed that the declaration was ambiguous, but, in the context of summary judgment, it was required to view the declaration in the light most favorable to the non-moving party—the plaintiff.
Finally, the Court explained that even if plaintiff’s declaration had not addressed causation, a jury could nonetheless infer causation—which may be proved by circumstantial evidence, expert testimony, or common knowledge—from the evidence surrounding standard of care.