Opinion
Case No. 3:16-cv-01049-YY
09-28-2018
GIOVANNI LOWRY, Plaintiff, v. UNIVERSITY OF OREGON MEDICAL SCHOOL; OREGON HEALTH & SCIENCE UNIVERSITY; and EVERETT W. LOVRIEN, M.D., Defendants.
FINDINGS AND RECOMMENDATIONS :
Plaintiff Giovanni Lowry ("Lowry") alleges claims of medical negligence (Claim One), battery (Claim Two), intentional infliction of emotional distress (Claim Three), lack of informed consent (Claim Four), and breach of fiduciary duty (Claim Five), stemming from infusions of blood products and other medical interventions he received between 1966 and 1983. Defendants University of Oregon Medical School, Oregon Health & Science University ("OHSU"), and a medical doctor employed by OHSU, Everett W. Lovrien, M.D. ("Dr. Lovrien") (collectively "defendants") have moved for summary judgment on all five claims. For the reasons set forth below, the motion should be granted with respect to Claim Five and otherwise denied. /// ///
BACKGROUND
The underlying factual background in this case has been set forth in a prior opinion. See Lowry v. Univ. of Oregon Med. Sch., 3:16-CV-01049-YY, 2017 WL 2450283, at *2-*3 (D. Or. June 2, 2017) (ECF #27). Additional facts are incorporated into the analysis below.
STANDARDS
A party is entitled to summary judgment if the "movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FRCP 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party does so, the nonmoving party must "go beyond the pleadings" and "designate 'specific facts showing that there is a genuine issue for trial.'" Id. at 324 (citing FRCP 56(e)). "When judging the evidence at the summary judgment stage, the district court is not to make credibility determinations or weigh conflicting evidence, and is required to draw all inferences in a light most favorable to the nonmoving party." Musick v. Burke, 913 F.2d 1390, 1394 (9th Cir. 1990).
In determining what facts are material, the court considers the underlying substantive law regarding the claims. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Only disputes over facts that might affect the outcome of the suit preclude the entry of summary judgment. Id. A dispute about a material fact is genuine if there is sufficient evidence for a reasonable jury to return a verdict for the non-moving party. Id. at 248-49. A "scintilla of evidence" or "evidence that is merely colorable or not significantly probative" is insufficient to create a genuine issue of material fact. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). /// ///
FINDINGS
Defendants contend that all of Lowry's claims should be dismissed because he failed to provide timely tort claim notice and the two-year statute of limitations bars his claims. Defendants also contend that Claim Five fails because there is no private right of action for a violation of ORS 418.750 (1975) (repealed 1993).
I. Tort Claim Notice and the Statute of Limitations
A. Relevant Law
The Oregon Tort Claims Act ("OTCA") governs actions in which a plaintiff seeks relief for torts committed by officers, employees, or agents of a public body within the scope of their employment or duties. ORS 30.265(2). The OTCA provides that for claims other than wrongful death, a claimant must give defendants notice of claims "within 180 days after the alleged loss or injury." ORS 30.275(2)(b). The 180-day notice requirement may be satisfied by the commencement of an action within that period. ORS 30.275(3)(c). Notwithstanding the 180-day notice requirement, an OTCA action must "be commenced within two years after the alleged loss or injury." ORS 30.275(9).
The "discovery rule" applies to both the 180-day notice requirement and the two-year statute of limitations. Johnson v. Multnomah Cnty. Dep't of Cmty. Justice, 344 Or. 111, 118 (2008). "The discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim." Gaston v. Parsons, 318 Or. 247, 255 (1994). "The general policy behind the 'discovery rule' is to delay the running of the statute of limitations until an injured person knows or should know that [he] has a cause of action so that the law does not strip [him] of a remedy before [he] could know [he] has been wronged." Duncan v. Augter, 62 Or. App. 250, 258 (1983).
Under the discovery rule, the limitations period "begins to run when the plaintiff discovers or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility" the injury exists. Gaston, 318 Or. at 256. Otherwise stated, the limitations period does not begin to run until a "plaintiff has a reasonable opportunity to discover his injury and the identity of the party responsible for that injury." Adams v. Oregon State Police, 289 Or. 233, 239 (1980). Put yet another way, a statute of limitations does "not begin to run until a reasonably prudent plaintiff perceives both the injury and the role that the defendant has played in that injury." T.R. v. Boy Scouts of America, 344 Or. 282, 291-92 (2008).
The "specialized meaning of the word 'injury' . . . does not refer simply to ordinary physical harm, but means a 'legally cognizable harm' that 'consists of three elements: (1) harm; (2) causation; and (3) tortious conduct.'" Zabriskie v. Lowengart, 252 Or. App. 543, 548-49 (2012). An injury is discovered "when a plaintiff knows or should have known of the existence of" those three elements. Foster Grp., Inc. v. City of Elgin, 264 Or. App. 424, 431 (2014) (citing Johnson, 344 Or. at 118).
"Actual knowledge that each element is present is not required." Gaston, 318 Or. at 256. The plaintiff also need not know the full extent of the alleged injury for the claim to accrue. Raethke v. Oregon Health Sciences Univ., 115 Or. App. 195, 198 (1992); Doe v. Am. Red Cross, 322 Or. 502, 513 (1996); Dickson v. TriMet, 289 Or. App. 774, 779 (2018) ("[I]f a plaintiff knows that he or she has suffered some harm and knows that it is the result of tortious conduct, an argument that the plaintiff did not know the full extent of the harm or that those facts had legal significance will be of no avail.") (internal citation and quotations omitted). "On the other hand, a mere suspicion is insufficient to begin the statute of limitations to run." Gaston, 318 Or. at 256.
"For purposes of determining what facts a plaintiff should have known, '[t]he discovery rule applies an objective standard—how a reasonable person of ordinary prudence would have acted in the same or a similar situation.'" Riverview Condo. Ass'n v. Cypress Ventures, Inc., 266 Or. App. 574, 601 (2014) (quoting Kaseberg v. Davis Wright Tremaine, LLP, 351 Or. 270, 278 (2011)). "Ordinarily, the application of that standard presents a factual question for the jury. . . ." Id. Thus, "the question is susceptible to judgment as a matter of law if 'the only conclusion a reasonable jury could reach is that the plaintiff knew or should have known the critical facts at a specified time and did not file suit within the requisite time thereafter.'" Id. (quoting T.R., 344 Or. at 295). Moreover, this court cannot grant summary judgment "if a genuine issue of material fact exists as to when plaintiff discovered or in the exercise of reasonable care should have discovered his 'injury[.]'" Zabriskie, 252 Or. App. at 549.
B. Analysis
On June 15, 2015, Lowry gave notice of his claims pursuant to ORS 30.275(3)(a). ECF #42-12. He indicated a discovery date of April 27, 2015. In 2015, after Lowry obtained insurance through Kaiser Permanente, his new treating physician, Dr. Christine Barnett, informed him for the first time that he never had hemophilia and, on April 27, 2015, she sent him a confirmation letter to that effect. Lowry Decl. ¶ 12, ECF #43-2; ECF #43-4.
Thereafter, Lowry requested chart notes from OHSU, and discovered a progress note from October 29, 1975, in which Dr. Lovrien wrote that Lowry's mother had come to the Hemophilia Clinic asking for "more medicine for home infusions of her two children." ECF #43-3. Dr. Lovrien advised her that coagulation studies "ha[d] never been satisfactory and concluded[,] indicated that a severe bleeding problem was not present." Id. Lowry's mother became hysterical, cried for almost two hours, and complained that "the mental anxiety of withdrawing the medicine would make her life so complex because then she would care about her children." Id. In response, Dr. Lovrien wrote:
[W]e have decided to go ahead and continue home infusions despite the fact that on paper it doesn't look like there is any severe bleeding problem in the family. . . . Despite the fact that on paper there is no evidence of a severe bleeding problem at this time[,] I feel it is the best judgment to continue reasonable infusions and that the hazards of infusion, including hepatitis and other complications are less than the hazards of mental turmoil associated with withdrawing the home infusion program.Id.
The parties executed a tolling agreement on August 15, 2015, thereby tolling the statute of limitations from that date. As the OTCA notice requirement is more restrictive than the statute of limitations, the operative date for determining this motion for summary judgment is December 17, 2014, i.e., 180 days before the tort claim notice was filed.
1. Awareness of Substantial Possibility of Injury
Defendants rely on OHSU chart notes and Lowry's deposition testimony to argue that Lowry was aware of the facts giving rise to his claims before December 17, 2014. ECF #41, at 8-9. Because a reasonable jury could reach more than one conclusion about this evidence, summary judgment should be denied.
Defendants first point to a nurse's chart note from December 5, 2011, that reads: "Patient states that Dr. Badidi doesn't believe he is [a] hemophiliac and is asking that 'he put aside his preconceived notion that he is [] a hemophiliac.'" ECF #42-4, at 2. Additionally, at his deposition, Lowry testified that around the same time, an unidentified OHSU clinic manager told him that he was not a hemophiliac. Lowry Depo. at 49, ECF #42-5, at 2. Defendants argue this evidence—that Lowry was told he was not a hemophiliac in 2011—shows Lowry should have been aware something was amiss about his original diagnosis at that time.
In his declaration, Lowry explains that the clinic manager made this comment in an "off-handed" way without explanation during a visit when he was never examined for hemophilia. Lowry Decl. ¶ 6, ECF #43-2.
However, defendants ignore evidence that Dr. Badidi and Dr. DeLoughery subsequently reaffirmed to Lowry that he had hemophilia. According to Lowry's deposition testimony, which must be credited on summary judgment, Lowry told Dr. Badidi to check his medical history, and the next time Lowry saw Dr. Badidi, he said, "[O]kay, yeah, you're a hemophiliac." Lowry Depo. at 50, ECF #42-5, at 2-3; see also Lowry Decl. ¶ 7, ECF #43-2 ("During the next visit with Dr. Badidi, I was told: "You're a hemophiliac."). Lowry also testified that Dr. DeLoughery confirmed to him that he was a hemophiliac:
[Dr. DeLoughery] told me -- I said, listen, these guys are telling me that tests are coming back negative for hemophilia, but I'm getting mixed messages, because I've been a hemophiliac my whole life. What's going on? And he said, no, you're a hemophiliac, it's just that your liver is damaged and you have Hep C, so it's giving a false negative with your blood work. That's pretty common. I'm like, oh, okay. So I am a hemophiliac? And he says yes.Lowry Depo. at 52-53, ECF #42-5 (emphasis added).
. . .
Because I was getting curious, and trying to figure out why they were giving me all these mixed messages. And he said -- I said, am I or am I not a hemophiliac? Straight up I asked him, and he said, you are, you just don't fit in this box. I said okay.
Defendants point to Lowry's testimony that he was "was getting mixed messages" and Dr. DeLoughery told him he "just [didn't] fit in this box." Mot. 9, ECF #41. Defendants take these statements out of context. According to Lowry, he asked Dr. DeLoughery "[s]traight up" if he was a hemophiliac, and Dr. DeLoughery told him "you are."
Defendants have offered excerpts of Dr. DeLoughery's deposition testimony. At one point, Dr. DeLoughery was asked, "Did you ever tell [Lowry] that he did not have hemophilia?" and he responded, "When I reviewed the labs, I would have said it would be not supportive, but given the history, I'd still be concerned with a bleeding diathesis." DeLoughery Depo. at 25, ECF #42-6, at 2 (emphasis added). Dr. DeLoughery's testimony is arguably less persuasive in that he testified about what he would have said, not what he actually did say. In any event, summary judgment cannot be granted because Lowry's testimony to the contrary establishes that there is a genuine issue of material fact.
Defendants also contend it is somehow significant that Lowry filed a formal complaint with OHSU because he was not being treated for hemophilia. In December 2011, Lowry presented to Dr. Badidi with a large, lingering bruise on his left elbow. Lowry Depo. at 50, ECF #42-5, at 3. Lowry testified that Dr. Badidi told him it was "not a bleed" and he should go home and ice it. Id. Lowry claims he then filed a complaint for "not treating my hemophilia." Id.
There is no evidence of any formal complaint in the record. In any event, even if Lowry had filed a formal complaint, it does not necessarily lead to the conclusion that Lowry was aware of the substantial possibility of the tortious conduct at issue in this case, i.e., the fabrication of a hemophilia diagnosis by Dr. Lovrien in 1975. Instead, when the evidence is viewed in the light most favorable to Lowry, a reasonable jury could find that Lowry believed he suffered from the hemophilia he was diagnosed with as a child and was not being treated for it.
Defendants further rely on chart notes in which Lowry expressed distrust with OHSU. Regarding a February 2013 phone call he had with Lowry, Dr. Badidi, wrote: "Patient says he can't trust me (OHSU). Says we told him he wasn't a hemophiliac but he is. Doesn't know if he wants to keep seeing me." ECF #42-7, at 1. Also, in February 2014, Lowry spoke by phone with a nurse practitioner who wrote: "[Lowry] expressed intense unhappiness and frustration with the 'way I have been treated'. 'How can you say I don't have hemophilia when you told me l did and gave me factor that gave me hepatitis C!!!'" ECF #42-8, at 1.
Again, when these statements are viewed in the light most favorable to Lowry, a reasonable jury could conclude that Lowry believed that the diagnosis he had lived with for 40 years was accurate, and was expressing his frustration that OHSU was refusing to treat him for it. As Lowry explained in his declaration, he "did not suspect a misdiagnosis at that time, although I was concerned about the way my care providers treated me and my condition." Lowry Decl. ¶ 11, ECF #43-2.
Defendants point to additional 2014 records showing that Lowry raised concerns about his hemophilia diagnosis. On March 4, 2014, Lowry contacted the Hemophilia Clinic and the OHSU patient relations office "with concerns about his care." ECF #42-9, at 1. A nurse reported that Lowry "is specifically concerned about not having a firm diagnosis after being told he likely doesn't have hemophilia. He is requesting an official diagnosis, a clear treatment plan and access to his archived medical records which have previously documented his hemophilia diagnosis." ECF #42-9, at 1.
These statements cannot be viewed in isolation. Rather, as discussed above, between 2011 and 2014, Lowry had received conflicting diagnoses from OHSU doctors: Dr. Badidi and an unnamed case manager told him that he did not have hemophilia, then Dr. Badidi and Dr. DeLoughery told him he did. Lowry's March 2014 statements suggest that someone again may have told him that he did not have hemophilia. From these facts, it cannot be said that "a reasonable person of ordinary prudence would be aware of a substantial possibility" that Dr. Lovrien fabricated a childhood diagnosis of hemophilia 40 years before. Rather, a reasonable jury could conclude that Lowry was merely demanding a "firm diagnosis" after his doctors had flip-flopped regarding his diagnosis. Lowry's request for his medical records was merely consistent with his demand for a "firm diagnosis" in light of recent events.
Lowry's threats to sue in 2014 are likewise insufficient to justify dismissal. On July 8 2014, in a follow-up to an emergency department visit for back pain, a clinical support staffer called Lowry and noted: "[Lowry] was not happy that I called to follow up with him and stated that he is not going to be seen here at OHSU and is currently trying to sue OHSU. Patient went on to saying how he was given Hep C due to the blood transfusion he received her back in the 80's and is lucky to be alive. . . ." ECF #42-10. When viewed in the light most favorable to Lowry, his threat to sue pertained to his Hepatitis C transfusion and not his diagnosis for hemophilia. Moreover, phrases like "I'm going to sue you" are frequently interjected to express frustration without any substantive basis. A reasonable juror could infer that his statement was an expression of frustration aimed at OHSU, independent of any suspicion of injury resulting from a multi-decades-old fabricated diagnosis.
Finally, defendants point to records from December 10, 2014, when Lowry met with his primary care physician, Dr. Amy Robinson, for a follow-up "of low back pain, foot pain, Hep C and hemophilia." ECF #42-11, at 1. The chart notes state that "[Lowry] is concerned about his hemophilia diagnosis—was told that he does not have hemophilia but a bleeding disorder and is very upset about this, feels like he has been lied to or made to feel like he is a lying about his previous diagnosis. Concerned that he has no plan for when he has a bleeding diathesis." Id. at 2. Defendants argue that "a reasonable person of ordinary prudence would be aware of a substantial possibility of tortious conduct" at that time.
A "bleeding diathesis" is an unspecified bleeding disorder. ECF #41, at 3 n.2.
Again, however, these statements cannot be viewed in isolation. As discussed above, the recent, conflicting diagnoses—including confirmation by two doctors that Lowry indeed had hemophilia—"would not necessarily have made a reasonable person aware, of a substantial possibility that he was the victim of defendant's tortious conduct" in 1975. Zabriskie, 252 Or. App. at 550. The equivocal diagnoses that Lowry recently received from OHSU could have reasonably assured him that there was some accuracy to the diagnosis he received as a child. In the absence of an unequivocal statement that Lowry was not a hemophiliac and that his childhood diagnosis was incorrect, Lowry understandably may not have suspected any relationship between the information he was receiving from OHSU and the possibility of tortious conduct.
Moreover, Lowry had lived almost his entire life with the diagnosis of hemophilia. For Lowry to accept that his hemophilia diagnosis was false would require him to disregard almost 40 years' worth of knowledge about himself and his medical history. The weight of events necessary to cause a reasonable person to disregard his life history would have to be substantial, especially considering Lowry's present condition is similar symptomatically. ECF #41, at 3 n.2.
In sum, it cannot be said that the only conclusion a reasonable jury could reach from this evidence, which must be viewed in the light most favorable to Lowry, is that he "knew or should have known the critical facts at a specified time and did not file suit within the requisite time thereafter." Riverview Condo., 266 Or. App. at 601.
2. Reasonable Investigation
Defendants also contend that even if Lowry failed to know of his injury, he would have discovered it through a reasonable investigation. "Whether a plaintiff is subject to a duty to inquire about facts that might trigger a statute of limitations, however, is itself a question of fact." Cole v. Sunnyside Marketplace, LLC, 212 Or. App. 509, 521 (2007). "The duty arises only when there are facts that would prompt a reasonable person to make the inquiry." Id.
Defendants cite to Foster in support of their argument that, if Lowry had exercised reasonable care, he would have known of his injury before December 17, 2014. In Foster, the plaintiff was president of a mobile-home park that was built on a parcel of property subject to the defendant-city's right to build a road on its border. The plaintiff planned and developed the park based on his understanding that a cattle fence on the southern border of the property marked the center line of any future road. After building the park, the plaintiff commissioned a survey at the recommendation of a city official. The survey failed to reveal that the actual location of the property was 25 feet north of the line that plaintiff thought was its southern boundary. 264 Or. App. at 426-27.
Subsequently, the city began constructing the road and required the plaintiff to move several park structures away from the road to comply with set-back requirements. After the city blocked the park's access to the road, the plaintiff inquired about the legality of the city's actions and at that time discovered that the survey was erroneous. The plaintiff learned that the city knew of inaccuracy issues with its surveys and the existence of earlier surveys that contradicted the survey commissioned by the plaintiff, and filed tort claims against the city. On defendant's motion for summary judgment, the court ruled that the plaintiff had notice to investigate the survey results. Specifically, the court held that plaintiff failed to conduct a reasonable investigation, in part, because he neglected to look at earlier surveys dating back over a period of twenty years, which would have imputed knowledge to the plaintiff of his injury. The court further found that the issues relating to plaintiff's property line in total would have raised enough suspicion to prompt a reasonable person to question the survey results.
Foster is distinguishable from this case. Unlike the plaintiff in Foster, who was trained as an engineer and had sophisticated knowledge relating to land use, Lowry is untrained in any medical subject and lacks special knowledge relating to medical diagnoses. When the Foster plaintiff was confronted with survey results that referenced several other previous surveys, he "did not inquire whether any of those surveys confirmed what plaintiff had believed to be its property line for the previous 20 years." Id. at 434.
Moreover, Lowry indeed conducted a reasonable inquiry. After receiving the conflicting diagnoses, Lowry insisted upon a "firm diagnosis" and even requested his medical records on March 4, 2014, although it is unclear what became of that request. Drawing all reasonable inferences in Lowry's favor, a jury could find that a reasonable person of ordinary prudence would have acted the same way in the same or a similar situation. Riverview Condo., 266 Or. App. at 601. Accordingly, summary judgment should be denied on this ground.
II. Claim Five: Private Right of Action Under Former Mandatory Reporting Statute
Lowry contends this court should create a private right of action under ORS 418.750 (1975) (repealed 1993), the mandatory reporting statute in effect during the alleged misconduct. ECF #43, at 15-19.
Statutory liability "arises when a statute either expressly or impliedly creates a private right of action for the violation of a statutory duty." Deckard v. Bunch, 358 Or. 754, 759 (2016). "Whether a statute does so is a question of statutory interpretation." Doyle v. City of Medford, 356 Or. 336, 344 (2014) (internal citations omitted). Oregon courts first ask whether the text, context, or legislative history of the statute indicate that the legislature expressly or impliedly intended to create a private right of action to remedy a violation of the duty that the statute imposes. Doyle, 356 Or. at 368. If there is no such indication, courts then ask "whether creation of the common-law right of action that plaintiffs advance would be consistent with the legislative purpose, appropriate for promoting its policy, and needed to ensure its effectiveness." Id. (citing Bob Godfrey Pontiac, Inc. v. Roloff, 291 Or. 318, 330 (1981) and RESTATEMENT (SECOND) OF TORTS § 874A, comment h).
Lowry relies on Nearing v. Weaver, 295 Or. 702 (1983), and Scovill ex rel. Hubbard v. City of Astoria, 324 Or. 159 (1996), and argues the two factors articulated in those cases are present here: that (1) the statute refers to civil liability in some way, and (2) the plaintiff will be left with no remedy unless the legislature impliedly created one or the court itself provided one. See Resp. at 16, ECF #43 (citing Nearing, 295 Or. at 707-09)). However, these cases pre-date "the adoption of [the] current statutory interpretation methodology." Deckard, 358 Or. at 760. The Oregon Supreme Court has more recently held that these "factors are neither exclusive nor talismanic" and "may not advance the analysis very far." Id. The court held that "the proper methodology for determining whether the legislature (either expressly or by implication) intended to create a right of action for enforcement of a statutory duty is the familiar holistic framework of the statutory text, context, and legislative history." Deckard, 358 Or. at 760.
With that framework, this court analyzes the former mandatory-reporting statute, which reads in pertinent part:
Any public or private official having reasonable cause to believe that any child with whom he comes in contact in his official capacity has suffered abuse, or that any adult with whom he comes in contact in his official capacity has abused a child shall report or cause a report to be made [orally to the Children's Services Division]. Nothing contained in [the doctor-patient privilege statute] shall affect the duty to report imposed by this section, except that a psychiatrist, psychologist, clergyman or attorney shall not be required to report information communicated to him by an adult. . . .ORS 418.750 (1975) (repealed 1993).
The text of the statute does not expressly create a private right of action; no portion of the statute refers to civil liability. Moreover, Lowry has not identified any related statutes that contain references to civil liability, and legislative history does not support his position. Rather, as the Oregon Supreme Court has recognized, the "dual purpose" of the mandatory reporting scheme is "aiding in apprehending and prosecuting lawbreakers, and involving social agencies in problem situations so as to protect the child and counsel the parents." State v. Suttles, 287 Or. 15, 28 (1979).
Indeed, the legislature took steps to encourage compliance with ORS 418.750 (1975) (repealed 1993) by making violators subject to fines. See State v. Payzant, 32 Or. App. 371, 373 (1978). Under Oregon's current mandatory reporting statute, violators are subject to prosecution for a Class A misdemeanor. See ORS 419B.010(5) (2017). --------
Lowry argues that the legislature's use of mandatory instead of permissive language in the statute, i.e., "shall" instead of "may," implicitly shows the legislature intended to create a civil remedy to enforce the mandate. Resp. at 18, ECF #43. However, this argument was foreclosed by the Oregon Supreme Court in Doyle: "[M]any statutory obligations are enacted without any legislative intent to confer a private right of action on a person who is harmed by a violation of the statute. . . The mere existence of a statutory duty alone does not furnish a shortcut through the [statutory-construction] analysis." 356 Or. at 367.
In short, neither the text, context, nor legislative history of ORS 418.750 (1975) (repealed 1993) indicates that the legislature expressly or impliedly intended to create a private right of action to remedy a violation of the duty that the statute imposes. Moreover, Lowry has proffered no evidence that creating a private right of action under ORS 418.750 would be "consistent with the legislative purpose, appropriate for promoting its policy, and needed to ensure its effectiveness." Doyle, 356 Or. at 368.
"If there is any chance that invasion into the field by the court's establishment of a civil cause of action might interfere with the total legislative scheme, courts should err on the side of non-intrusion because it is always possible for the legislature to establish such a civil cause of action if it desires." Id. at 347. "Courts should exercise restraint in fields in which the legislature has attempted fairly comprehensive social regulation." Id. The Oregon legislature has implemented comprehensive social regulations regarding child welfare. See, e.g., ORS Chapter 417 (2017); ORS Chapter 418 (2017); ORS Chapter 419B (2017). As such, the court should err on the side of non-intrusion and decline the invitation to create a private right of action under ORS 418.750 (1975) (repealed 1993).
RECOMMENDATIONS
For the reasons set forth above, defendants' motion for summary judgment (ECF #41) should be GRANTED with respect to Claim Five and otherwise DENIED.
SCHEDULING ORDER
These Findings and Recommendations will be referred to a district judge. Objections, if any, are due Friday, October 12, 2018. If no objections are filed, then the Findings and Recommendations will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendations will go under advisement. /// /// /// ///
NOTICE
These Findings and Recommendations are not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any Notice of Appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of a judgment.
DATED September 28, 2018.
/s/ Youlee Yim You
Youlee Yim You
United States Magistrate Judge