HASELTON, P.J.
Defendant Oregon Medical Group, P.C. (OMG) appeals a general judgment entered on a jury verdict in favor of plaintiffs Bobbi and Kevin Klutschkowski and their son Braedon Klutschkowski in this medical negligence action arising from the circumstances of Braedon's birth and a supplemental judgment awarding plaintiffs their costs and disbursements.
A shoulder dystocia occurs when a baby's shoulder becomes stuck behind the mother's pubic bone. Generally, once a shoulder becomes stuck, doctors use obstetric maneuvers to attempt to facilitate the baby's delivery. Two such maneuvers are (1) the McRoberts maneuver, which involves flexing the mother's hips to change the angle of the pubic bone by bringing her legs back up against her chest, and (2) the Woods corkscrew maneuver, which involves the doctor placing his or her hands inside the mother's vagina on the baby's shoulders and turning or rotating the baby 180 degrees.
When a shoulder dystocia occurs, the baby is at risk of suffering a variety of injuries, including death. A brachial plexus injury is one of the most common and serious injuries that occurs with a shoulder dystocia.
Based on expert testimony at trial, a shoulder dystocia occurs approximately once in every 100 births. Of that group of children who experience a shoulder dystocia during delivery, 15 percent will suffer a brachial plexus injury, and, of that group, 10 to 15 percent will have a permanent injury. Significantly, for purposes of this case, once a shoulder dystocia occurs during a delivery, there is a significantly higher risk that a shoulder dystocia will occur in subsequent deliveries involving the same mother.
For those reasons, the standard of care in the medical profession requires that a doctor inform a mother who has had a previous shoulder dystocia of the increased risk of a subsequent shoulder dystocia and a brachial plexus injury to the baby occurring during a vaginal delivery and advise her to consider a cesarean section to reduce or avoid those risks. With that context in mind, we turn to the historic facts of this case.
On March 3, 1999, Bobbi, who was a patient of OMG, gave birth to her third child, Anna. Bobbi delivered Anna vaginally. Although Anna was unharmed, the delivery was complicated by a shoulder dystocia. Significantly, the doctor who delivered Anna specifically noted, in his report, that "[t]here was a shoulder dystocia managed by shoulder rotation maneuver with the patient's hips in a flexed position." However, the doctor did not tell Bobbi about the shoulder dystocia, and Bobbi was unaware that a complication had occurred during the delivery.
Several years later, in 2002, Bobbi and Kevin married. Thereafter, in the spring of 2003, Bobbi became pregnant, and she scheduled an appointment with OMG in June. Because the doctor who had previously delivered her other children had since moved, Bobbi was scheduled to see Dr. Amy McCarthy, an obstetrician and employee of OMG.
In preparation for that appointment, Laura Carpenter, a medical assistant, reviewed OMG's medical records. Significantly, based on the doctor's report concerning Anna's delivery, Carpenter noted on the current pregnancy record that Anna's delivery had been complicated by a shoulder dystocia.
Soon after Bobbi arrived for her appointment, however, an ultrasound confirmed that Bobbi had suffered a miscarriage. Accordingly, McCarthy did not address potential obstetrical complications with Bobbi. Nevertheless, following the appointment, McCarthy dictated a report, noting, as part of Bobbi's past medical history, the shoulder dystocia that had occurred during Anna's delivery.
Following that initial appointment in October, McCarthy managed Bobbi's pregnancy. On April 16, 2004, McCarthy determined that Braedon's size was large for his gestational age, and she ordered an ultrasound for further evaluation. Thereafter, on April 20, before the ultrasound was completed, OMG sent the current pregnancy record to the hospital at which Bobbi planned to deliver.
Three days later, on April 23, an ultrasound confirmed McCarthy's determination about Braedon's size. Specifically, the ultrasound indicated that his weight was approximately 3,964 grams, which was greater than the 97th percentile for babies of his gestational age.
According to McCarthy, she had "forgotten about the documentation" in OMG's records—including her own notation in the June 2003 report—concerning a shoulder dystocia during Anna's delivery. Instead, McCarthy relied on the current pregnancy record and Bobbi's statements concerning her previous pregnancies, neither of which indicated that a prior shoulder dystocia had occurred. For that reason, in their discussions on April 29, McCarthy did not inform Bobbi that there was an increased risk of a repeat shoulder dystocia and brachial plexus injury occurring during a vaginal delivery and that, to avoid those risks, she should consider a cesarean section. Had Bobbi been informed of those risks and the alternative of a cesarean section, she would have chosen to have a cesarean section.
On May 2, the day before the scheduled induction, Bobbi went into labor. Dr. Zena Monji, an obstetrician and employee of OMG, was on call that day. Monji reviewed Bobbi's pregnancy record, but, as noted, it did not include any reference to a previous shoulder dystocia or the results of the ultrasound, which indicated that Braedon was large for his gestational age. Monji testified that had she known about the prior shoulder dystocia and the results of the ultrasound, consistently with the standard of care, she would have informed Bobbi that there was an increased risk of a repeat shoulder dystocia and a brachial plexus injury and would have advised her to consider a cesarean section.
Ultimately, Bobbi delivered Braedon vaginally. As had previously occurred when Bobbi delivered Anna, a shoulder dystocia occurred during Braedon's delivery. Although Monji's report referred to a "[n]ormal spontaneous vaginal birth" and did not expressly refer to a shoulder dystocia, she noted that the "[s]houlders and body were delivered with a modified McRoberts maneuver."
Ultimately, Braedon was diagnosed with a permanent, disabling brachial plexus injury that occurred during his vaginal delivery and that would have been avoided had a cesarean
Braedon's injury will adversely affect his ability to perform activities of daily living (e.g., reaching and removing something from a cupboard, placing his suitcase in the overhead compartment of an airplane, typing, walking on a slippery sidewalk due to his abnormal gait, and dressing). Further, Braedon's injury will affect his employability and earning capacity. Specifically, Judith Parker, a vocational rehabilitation specialist, testified that Braedon's "future wage earning capacity will likely be impaired by as much as 25% in consideration of the seriousness of his physical impairment."
In 2006, plaintiffs filed this action for damages against OMG, as well as a variety of other entities and individuals. See 245 Or. App. at 526 n. 1, 263 P.3d at 1132 n. 1. Thereafter, they amended their complaint several times. Ultimately, the third amended complaint alleged claims against OMG, McCarthy, and Monji.
As pertinent to the issues on appeal, the operative complaint alleged a claim for negligence in paragraph 5. Specifically, paragraph 5 alleged that "OMG was negligent in one or more of the following respects:"
Further, in a separate paragraph—paragraph 8—plaintiffs alleged that OMG "did not obtain Bobbi Klutschkowski's informed consent to deliver Braedon Klutschkowski vaginally rather than by cesarean section."
As framed by those allegations, the parties' competing theories of the case hinged, as a practical matter, on a single, factual question: Did a shoulder dystocia occur during Anna's delivery in 1999? In turn, each party's respective answer to that question ultimately dictated a different standard of care.
Plaintiffs' theory was straightforward. Essentially, they contended that, because a shoulder dystocia occurred when Anna was delivered, the standard of care required that OMG (1) inform Bobbi of the increased risk of a subsequent shoulder dystocia and a brachial plexus injury occurring during a vaginal delivery and (2) advise her to consider a cesarean section to reduce or avoid those risks.
Conversely, OMG presented expert testimony to support its contention that, although a shoulder dystocia had been documented in connection with Anna's delivery, that complication had actually not occurred—and, thus, there was no reason for Bobbi to have been informed of an increased risk of a repeat
The juxtaposition of those competing theories became acute toward the end of trial, when the court ruled on several reserved motions, including OMG's motion for a directed verdict, and finalized the jury instructions. The court's decisions as to those issues reflected its understanding of how the parties had, in presenting their evidence, framed the case for the jury's consideration.
The court began by ruling on OMG's motion for a directed verdict as to what OMG referred to as plaintiffs' statutory informed consent "claim" under ORS 677.097
Stated differently, in moving for a directed verdict, OMG's position was that a physician need not obtain informed consent for any vaginal delivery because a vaginal delivery is not a "procedure or treatment" as contemplated by ORS 677.097. The court denied that motion without amplification.
Although OMG's motion for a directed verdict framed a purely legal issue, as previously described, 245 Or.App. at 532, 263 P.3d at 1132, the parties' competing theories concerned whether the facts of this case required OMG to inform Bobbi about risks of and alternatives to delivering Braedon vaginally. The court focused on those theories as it finalized the jury instructions. Of significance, the court understood that whether informed consent was required in this case was a jury question—an understanding with which OMG's counsel agreed.
(Emphasis added.)
Thereafter, the jury returned a general verdict, finding that OMG had been negligent. Specifically, the verdict form, as completed by the jury, provided:
"Economic Damages $ 557,881.11
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"Non-economic Damages $1,375,000.00"
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(Emphasis added.)
In response to the verdict, OMG filed a motion to reduce plaintiffs' award of noneconomic damages to $500,000, pursuant to ORS 31.710, the statutory cap on noneconomic damages.
Plaintiffs then sought to recover certain costs and disbursements. As pertinent to the issues raised on appeal, plaintiffs, relying on ORS 21.470(5), sought $5,184.75 for "[h]earing transcript and trial transcript fees" incurred during trial. OMG objected. According to OMG, "ORS 21.470 applies only to costs for preparing transcripts on appeal, not for transcripts obtained during trial." The court rejected OMG's argument and entered a supplemental judgment awarding plaintiffs costs, including the disputed transcript costs. OMG then filed an amended notice of appeal from the supplemental judgment.
On appeal, OMG raises six assignments of error. We reject without discussion OMG's third and fourth assignments of error concerning one aspect of the trial court's jury instructions and the court's failure "to direct a verdict on [OMG's] vicarious liability based on conduct by Dr. Monji." We address the remaining assignments of error in turn.
We begin with OMG's first and second assignments of error concerning, respectively, the trial court's denial of OMG's motion for a directed verdict and the jury instructions pertaining to OMG on plaintiffs' informed consent "claim." In those interrelated assignments, OMG contends that
As explained below, we need not resolve the merits of OMG's assignment of error concerning the denial of its motion for a directed verdict on plaintiffs' informed consent "claim" because, even if the trial court erred, OMG has not demonstrated that it was prejudiced by any error in that regard. Further, we reject as unreviewable OMG's challenge to the jury instructions concerning informed consent because OMG's present contention was unpreserved.
We turn first to the assignment of error concerning the trial court's denial of OMG's motion for a directed verdict. Pursuant to ORS 19.415(2), we may reverse or modify a judgment only if there is an error that "substantially affect[s] the rights of a party." In Shoup v. Wal-Mart Stores, Inc., 335 Or. 164, 173-74, 61 P.3d 928 (2003), the Supreme Court explained:
(Brackets in Shoup.) Accordingly, the Supreme Court reasoned that, "in a case involving a judgment on a general verdict based on multiple specifications [of negligence], one of which is invalid," the verdict will be sustained
Shoup is dispositive of OMG's first assignment of error. Here, in framing the case for the jury, the trial court and the parties treated the informed consent allegation in paragraph 8—that is, that OMG "did not obtain Bobbi Klutschkowski's informed consent to deliver Braedon Klutschkowski vaginally rather than by cesarean section"—as a specification of negligence. Our determination in that regard is predicated on two salient observations.
First, the court's jury instructions treated OMG's alleged failure to obtain informed consent as a specification of negligence. In particular, the court told the jury that "[a] failure to obtain [Bobbi's] informed consent may be considered by you in determining whether or not [OMG] was negligent" and that, "[i]n order to find [OMG] negligent in failing to provide informed consent, you must determine that [Bobbi] would not have consented to a vaginal delivery had all the risks and alternatives you find to be material been disclosed to her." (Emphasis added.)
Second, in discussing the general verdict form, the trial court noted that "informed consent [was] part and parcel of the specifications of negligence as set out in the jury instructions" and was "not a separate question." Consistently with that understanding, the general verdict form presented a single question to the jury: "Was [OMG] negligent in one or more of the ways alleged by plaintiffs, and, if so, was such negligence a cause of damage to plaintiffs?" (Emphasis added.) Stated differently, by its express terms, the verdict form presented only one claim for the jury's consideration—viz., a claim for negligence.
With the function of paragraph 8 as a specification of negligence so understood, Shoup's application is patent. Here, apart from the allegation in paragraph 8, there were additional specifications of negligence alleged in paragraph 5. On appeal, OMG does not contend that those additional specifications were invalid or that there was insufficient evidence to support them. As noted, because the jury in this case returned a general verdict, we cannot determine the rationale for its ultimate determination of negligence. Accordingly, because the verdict might have been based on one or more specifications independent of the informed consent allegation in paragraph 8, OMG failed to demonstrate that it was prejudiced by the court's denial of its motion for a directed verdict and the subsequent submission of the specification in paragraph 8 to the jury. See Shoup, 335 Or. at 176, 61 P.3d 928. We thus reject the first assignment of error.
Having rejected OMG's contention concerning the trial court's denial of its motion for a directed verdict, we turn to OMG's related contention pertaining to the court's jury instructions concerning informed consent. OMG posits that, because a vaginal delivery is not a "procedure or treatment" for purposes of ORS 677.097, the court's instruction "permitted the jury to find [OMG] liable on an impermissible ground" and, as such, was legally erroneous. Again— albeit for very different reasons than pertained to the first assignment of error— OMG's present challenge to the informed consent instruction is unreviewable.
ORCP 59 H prescribes the requisites of preserving an appellate challenge to purported instructional error. Specifically, ORCP 59 H(1) provides that "[a] party may not obtain review on appeal of an asserted error by a trial court * * * in giving or refusing to give an instruction to a jury unless the party who seeks to appeal identified the asserted error to the trial court and made a notation of exception immediately after the court instructed the jury." Further, such exceptions shall be "state[d] with particularity." ORCP 59 H(2).
Specifically, in Deason,
Id. Under those circumstances—in which the exception referred to extensive arguments to the trial court concerning the instruction that was ultimately given—we concluded that the "[p]laintiff's exception to the instruction after the jury was charged, that referred the court to the extensive argument on the record, was clearly sufficient to satisfy the requirements of ORCP 59 H." Id.
With those principles in mind, we return to the circumstances of this case. In considering those circumstances, it is essential to reiterate and remember that OMG's present challenge to the informed consent instruction is that no instruction on informed consent should have been given because, as a matter of law, informed consent was inapposite. Here, the jury instructions generally—and the informed consent instruction specifically—evolved during the course of the trial, with the court preparing approximately 18 proposed drafts, none of which is in the record. Two days before the jury was actually instructed, the court indicated that the parties' arguments concerning the jury instructions had been sufficient to alert it to their concerns.
(Emphasis added.) OMG noted that that paragraph continued to contain "a reference to Mrs. Klutschkowski having consented to a vaginal delivery"—and suggested that the italicized phrase above should be replaced with the phrase "would have opted for a Cesarean section."
Thereafter, the court gave the informed consent instruction described above. See 245 Or.App. at 535-36, 263 P.3d at 1137 (quoting the entire informed consent instruction). Again, after the jury was instructed, the court, noting that the previously made exceptions were "taken as given," asked defense counsel whether he had any further exceptions. Defense counsel's only response concerned the definition of the term "explain," which counsel believed had been omitted from the instruction.
In sum, after the jury was instructed, OMG took exception to a single aspect of the informed consent instruction—that is, the purported omission of the definition of the term "explain." Further, to the extent that, under Deason, OMG could properly incorporate exceptions taken to the final version of the instruction before it was actually given, OMG's only expressed objection at that point was to the use of the phrase "would not have consented to a vaginal delivery" instead of "would have opted for a Cesarean section."
On appeal, OMG does not reiterate either of its contemporaneous challenges to the informed consent instruction as actually given. Instead, as noted, it now raises a qualitatively different exception—viz., that informed consent was inapposite as a matter of law. We reject that challenge as unreviewable for any of three independently sufficient reasons.
First, even under Deason's benign incorporation-by-reference construction of ORCP 59 H(2)'s "with particularity" requirement, the referent is the preinstructional colloquy relating to the disputed instruction, in its final form, as it was actually given. As noted, OMG's present challenge was not expressed even in that referent colloquy.
Second, to the extent that OMG would have us, notwithstanding Deason, refer to any discussions antedating the ultimate colloquy, the record in that regard defies review. As noted, there were approximately 18 different iterations of the proposed instructions, none of which (except the last) is part of our record. Reading those transcribed discussions is akin to reading critical reviews of a book, without the book—or, even more, criticisms of a series of drafts without each draft. Further, because the instructions were a "moving target," objections that pertained to one version might not pertain to a subsequent version.
Third, as previously explained, the parties' competing theories concerned whether the particular facts of this case required OMG to inform Bobbi about risks of and alternatives to delivering Braedon vaginally. For that reason, the trial court understood that whether informed consent was required in this case was a jury question, and defense counsel agreed. Accordingly, OMG's contrary appellate contention—viz., that no instruction on informed consent should have been given because, as a matter of law, informed consent was inapposite—was unpreserved for our review. See Peitsch v. Keizer, 219 Or.App. 114, 116, 180 P.3d 1239
Having rejected OMG's liability-related challenges, we turn to its fifth assignment of error. In that assignment, OMG contends that the trial court erred in denying its motion to reduce plaintiffs' award of noneconomic damages to $500,000 pursuant to ORS 31.710(1), which provides:
Specifically, relying on our opinion in Christiansen v. Providence Health System, 210 Or.App. 290, 150 P.3d 50 (2006), aff'd on other grounds, 344 Or. 445, 184 P.3d 1121 (2008), OMG contends that
According to OMG, because plaintiffs sought to recover for Braedon's prenatal injuries, application of ORS 31.710 did not violate the remedy clause.
Relatedly, OMG contends that application of the statutory cap to plaintiffs' claim for prenatal injuries does not violate the jury trial provisions of Article I, section 17, or Article VII (Amended), section 3. That is so because, notwithstanding several appellate decisions that antedated the analytical methodology established in Smothers, more recent case law indicates that, in OMG's words, "where there is no protected right to a remedy, there can be no protected right to a jury trial."
Conversely, plaintiffs dispute the predicate of OMG's argument—that is, that plaintiffs' claim is a claim for prenatal injuries. Instead, they contend, plaintiffs' claim is properly, and simply, characterized as a negligence claim—and because a claim for negligence antedated 1857, the application of ORS 31.710 to limit plaintiffs' recovery would violate the remedy clause. Alternatively, they contend that, under the Supreme Court's decision in Lakin v. Senco Products, Inc., 329 Or. 62, 987 P.2d 463, on recons., 329 Or. 369, 987 P.2d 476 (1999), "even if [plaintiffs' claim] is for prenatal injuries, [it] is, at a minimum, of like nature to a negligence claim that existed in 1857," so that application of the statutory cap violates Article I, section 17. Finally, plaintiffs contend that Article VII (Amended), section 3, "applies to all common law tort claims, regardless of whether they existed in 1857," and, thus, the application of ORS 31.710 to plaintiffs' common-law negligence claim violates that constitutional provision.
For the reasons explained below, we agree with OMG that, under Christiansen, a claim for prenatal injuries in the circumstances presented here did not exist in 1857. Further, in light of several cases decided after Smothers, we conclude that, because
In Christiansen, the plaintiff, who was the mother and conservator of the estate of her minor child, brought an action against a hospital and an obstetrician, alleging that they "failed to recognize signs of fetal distress and maternal infection during [the] plaintiff's labor * * * and, as a result, negligently delayed performing a cesarean section delivery of the child," who suffered injuries. 210 Or.App. at 292, 150 P.3d 50. The issue in Christiansen was whether the statute of ultimate repose in ORS 12.110(4) violated the remedy clause of Article I, section 10, which provides, in part, that "every man shall have remedy by due course of law for injury done him in his person, property, or reputation."
Applying the analytic construct established in Smothers, we explained that the dispositive issue was whether the plaintiff had alleged an injury to a right that Article I, section 10, protected. In other words, the question became "whether a claim for prenatal injuries caused by medical negligence was recognized by the common law of Oregon, or any other jurisdiction, around the time the Oregon Constitution was adopted." Christiansen, 210 Or.App. at 297, 150 P.3d 50. Ultimately, we concluded that, "[i]n the years immediately surrounding the adoption of the Oregon Constitution, no Oregon case addressed whether an infant injured during birth could maintain an action for medical negligence against the delivering physician." Id. at 297-98, 150 P.3d 50 (emphasis added). Accordingly, we held that application of ORS 12.110(4) did not violate the remedy clause.
Consistently with the reasoning expressed in our opinion in Christiansen, we conclude that a claim for prenatal injuries—including those that occur during birth—did not exist at the time that the Oregon Constitution was adopted. Accordingly, in the circumstances of this case, the remedy clause does not preclude application of the statutory cap on noneconomic damages. Further, as we will explain, our determination in that regard also necessarily forecloses plaintiffs' contention that the jury trial provisions of Article I, section 17, and Article VII (Amended), section 3, preclude the application of ORS 31.710.
We begin with Article I, section 17, which provides that "[i]n all civil cases the right of Trial by Jury shall remain inviolate." That constitutional provision "is not a source of law that creates or retains a substantive claim or a theory of recovery in favor of any party." Jensen v. Whitlow, 334 Or. 412, 422, 51 P.3d 599 (2002). Instead, as the Supreme Court explained in Lakin, "Article I, section 17, guarantees a jury trial in civil actions for which the common law provided a jury trial when the Oregon Constitution was adopted in 1857 and in cases of like nature." 329 Or. at 82, 987 P.2d 463 (emphasis added). A few years later, the Supreme Court decided Hughes v. PeaceHealth, 344 Or. 142, 154-55, 178 P.3d 225 (2008), a case in which the plaintiff contended that "the jury trial right that Article I, section 17, guarantees is not confined to the class of cases in which it was customary in 1857, but also applies to cases of like nature." (Internal quotation marks omitted.) In that case, the plaintiff posited that, in light of the principle that the court had expressed in Lakin, as well as other cases, she had a right to a jury determination of damages in her wrongful death claim because it was akin to a personal injury action. The court rejected the plaintiff's "expansive" view of her claim because it clearly conflicted with the principle that Article I, section 17, is not a source of law that creates or retains a substantive claim or theory of recovery. Given Hughes, and in light of our holding in Christiansen, we necessarily reject plaintiffs' contention that, "even if [plaintiffs' claim] is
We turn then to the final constitutional provision invoked in this case—viz., Article VII (Amended), section 3. That provision states, in part, that, "[i]n actions at law, where the value in controversy shall exceed $750, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of this state, unless the court can affirmatively say there is no evidence to support the verdict."
In Voth v. State of Oregon, 190 Or.App. 154, 161, 78 P.3d 565 (2003), rev. den., 336 Or. 377, 84 P.3d 1081 (2004), the plaintiff contended that Article I, section 17, and Article VII (Amended), section 3, "guarantee[d] him the right to a trial by jury on his claims for noneconomic damages." Noting that Article I, section 17, was not a "source of law that creates or retains a substantive claim or a theory of recovery in favor of any party," Jensen, 334 Or. at 422, 51 P.3d 599, we held that Article I, section 17, "d[id] not assist [the] plaintiff" because "the common law did not provide a jury trial for negligence and intentional infliction of emotional distress actions against the state in 1857[,]" Voth, 190 Or.App. at 161, 78 P.3d 565. Similarly, we held that the plaintiff's contention concerning Article VII (Amended), section 3, failed for the same reason. Id. at 161-62, 78 P.3d 565. Specifically we explained:
Voth, 190 Or.App. at 162, 78 P.3d 565 (brackets in Voth; emphasis added).
Here, as we have previously explained, plaintiffs had no protected right to a remedy because, consistently with our opinion in Christiansen, a claim for prenatal injuries did not exist at the time that the Oregon Constitution was adopted. Accordingly, consistently with the principles expressed in Voth, Article VII (Amended), section 3, does not assist plaintiffs.
In sum, neither the remedy clause of Article I, section 10, nor the jury trial provisions of Article I, section 17, and Article VII (Amended), section 3, preclude application of ORS 31.710 under the circumstances of this case. For that reason, the trial court erred in denying OMG's motion to reduce plaintiffs' award of noneconomic damages to $500,000 pursuant to ORS 31.710(1).
Finally, we address OMG's sixth assignment of error. In that assignment, OMG contends that the trial court erred in awarding plaintiffs, as the prevailing party, the costs of preparing daily transcripts during trial because, OMG asserts, those costs are not recoverable under ORS 21.470(5). The parties essentially renew their arguments to the trial court concerning the proper construction of that statute.
In resolving that issue, we are guided by the principles of interpretation described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), as amplified in State v. Gaines, 346 Or. 160, 206 P.3d 1042 (2009). In general terms, "we attempt to determine the meaning of the statute most likely intended by the legislature, examining the text in context along with any legislative history offered by the parties and, if necessary, relevant canons of construction." Friends of Yamhill County v. Yamhill County, 229 Or.App. 188, 192, 211 P.3d 297 (2009). Changes in the text of a statute over time are context for interpreting the version at issue in a given case. See Krieger v. Just, 319 Or. 328, 336, 876 P.2d 754 (1994) ("In a serially amended statute * * *, the wording changes adopted from
ORCP 68 A governs the allowance of costs and disbursements in the trial court. Although ORCP 68 A(2) does not include the costs of daily trial transcripts in its nonexclusive list of recoverable "costs and disbursements," the rule's definition of "costs and disbursements" encompasses "any other expense specifically allowed by agreement, by these rules, or by other rule or statute." (Emphasis added.) As support for the award in this case, as being "allowed by * * * statute," plaintiffs rely on a single sentence from ORS 21.470(5), which provides, in part:
In isolation that sentence would appear to confirm plaintiffs' contention that they are entitled to daily transcript fees. However, when the sentence is viewed in the context of ORS 21.470 as a whole, plaintiffs' position is unavailing. That statute provides:
(Emphasis added.)
Viewed in context, it appears that subsection (5), like every other subsection in this statute, concerns transcripts on appeal. Alternatively, to the extent that each of the subsections other than subsection (5) either specifies transcripts "on appeal" or cross-references another subsection that does so, it might be argued that subsection (5), because it fails to specify "on appeal," applies to any transcript. The latter view, however, is foreclosed by the evolution of the statute over the last 30 years. In 1981, the legislature amended the then-extant version of ORS 21.470—which pertained exclusively to appellate transcripts—by adding the sentence on which plaintiffs rely here. Or. Laws 1981, ch. 3, § 86 (Special Session). A "before-and-after" comparison of the text of ORS 21.470 shows that nothing in the amendment altered the statute's exclusively appellate application.
Thus, the trial court erred in awarding plaintiffs the cost of preparing daily trial transcripts. Accordingly, we reverse the award of those costs in the supplemental judgment.
General judgment reversed and remanded with instructions to enter judgment reducing plaintiffs' award of noneconomic damages to $500,000; otherwise affirmed. Supplemental judgment reversed and remanded.
Further, as indicated above, plaintiffs are Bobbi and Kevin Klutschkowski and their son, Braedon. Bobbi and Kevin appear personally and as guardians ad litem for Braedon. For clarity and convenience, throughout this opinion, we refer to Bobbi, Kevin, and Braedon Klutschkowski collectively as "plaintiffs" and individually by their respective first names.
