second sentence instruction in Oregon

2023Cite as 371 Or 247 (2023) 261 methodology.

2023We begin by observing that this court has stated that a physician is not “a guarantor of good results.” Clemens v. Smith, 170 Or 400, 407 , 134 P2d 424 (1943) (stating that it is a “well-recognized principle of law in malpractice cases” that a physician is not “a guaran- tor of good results”); Hotelling v. Walther, 169 Or 559, 562 , 130 P2d 944 (1942) (“Dentists, like physicians and surgeons, are not guarantors of good results.”).

2023We begin by observing that this court has stated that a physician is not “a guarantor of good results.” Clemens v. Smith, 170 Or 400, 407 , 134 P2d 424 (1943) (stating that it is a “well-recognized principle of law in malpractice cases” that a physician is not “a guaran- tor of good results”); Hotelling v. Walther, 169 Or 559, 562 , 130 P2d 944 (1942) (“Dentists, like physicians and surgeons, are not guarantors of good results.”).

2021See McCathern, 332 Or at 79 (holding that jury is to be instructed on only the consumer-expectations theory of liability); Burns v. General Motors, 133 Or App 555, 561 , 891 P2d 1354 (1995) (explaining that, by adopting ORS 30.920, the legislature designated the consumer-expectations test as the sole test for a dangerously defective product). 258 Purdy v. Deere & Co./Norton The third sentence of the instruction’s second para- graph was also problematic.

2021See McCathern, 332 Or at 79 (holding that jury is to be instructed on only the consumer-expectations theory of liability); Burns v. General Motors, 133 Or App 555, 561 , 891 P2d 1354 (1995) (explaining that, by adopting ORS 30.920, the legislature designated the consumer-expectations test as the sole test for a dangerously defective product). 258 Purdy v. Deere & Co./Norton The third sentence of the instruction’s second para- graph was also problematic.

2017Consequently, OEC 404(4) supersedes the first *382 sentence of OEC 404(3), which provides that ‘[e]vidence of other crimes, wrongs or acts is inadmissible to prove the character of a person in order to show that the person acted in conformity therewith.’ (Emphasis added.) However, OEC 404(4) does not supersede the second sentence of OEC 404(3), which provides that other acts evidence ‘may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.’ If other acts evidence is not proffered to prove a d

2014I think that — and the courts I know in some cases say that that’s the law, but I believe that that should be objected to, and maybe the courts will reconsider that at some point.” Defendant did not assert, as he does now, that the instruction, in its entirety, deprived him of due process of law because it instructed “the jury to draw an inference against the defendant thereby shifting the burden of proof from the state to the defendant.” As noted above, the question of preservation does not entail “a cursory search for some common thread, however remote, between an issue on appeal and a posit

2004The majority reasons that the legislature intended notice and opportunity to be heard to be required whenever a judgment is to exceed the amount prayed for. 192 Or.App. at 416 , 86 P.3d at 84 .

2004The majority reasons that the legislature intended notice and opportunity to be heard to be required whenever a judgment is to exceed the amount prayed for. 192 Or.App. at 416 , 86 P.3d at 84 .

1976The instruction speaks of "a statutory right-of-way,” but the statute states only that "an overtaken vehicle shall give way to the right.” See Ray v. Anderson, 240 Or 619, 623 , 403 P2d 372 (1965).

1976The instruction speaks of "a statutory right-of-way,” but the statute states only that "an overtaken vehicle shall give way to the right.” See Ray v. Anderson, 240 Or 619, 623 , 403 P2d 372 (1965).