Taylor v. Portland Adventist Medical Center

ORS 19.250(2) does not apply where a trial court judge determines to let a subsequent trial proceed following a mistrial in the same matter. The trial court judge is not making a judgment nor does the trial court's order “'effectively determine[] the action so as to prevent a judgment in the action.' It merely allows for another trial,” thus making a denial to a motion for dismissal unappealable.

Three mistrials have occurred wherein Taylor has pursued a suit of medical negligence against Portland Adventist Medical Center (PAMC). When Taylor requested that the trial court move forward and set a hearing date for a fourth hearing, PAMC moved for a judgment of dismissal which was then denied. PAMC appealed the denial of the motion for dismissal under ORS 19.250(2). Because no judgment has been entered, PAMC's appeal will only be able to come before the Court of Appeals under ORS 19.205(2) which states that “an order in an action that affects a substantial right, and that effectively determines the action so as to prevent a judgment in the action, may be appealed in the same manner as provided in this chapter for judgments.” This Court found that though the parties may have been unusually burdened by the process of three jury trials to date, there has not been a judgment made thus far and the trial court's order did not “effectively determine the action so as to prevent a judgment in the action.” Therefore, this Court determined that the matter was not appealable and that they did not have jurisdiction over this case and dismissed the appeal. APPEAL DISMISSED.