Opinion
CV-04-420-ST.
August 26, 2004
OPINION AND ORDER
INTRODUCTION
Plaintiff, Colton Burkhart, a minor, alleges that he was injured on June 15, 2003, by swallowing a toy pendant from a vending machine containing high levels of lead. He seeks to recover damages from defendant L.M. Becker Company Corporation, the manufacturer, and defendant J Kappers Enterprises, Inc., the seller, based on negligence, products liability, and violations of the Consumer Product Safety Act, 15 USC § 2068(a)(2). This case was initially filed in the Circuit Court of the State of Oregon for the County of Deschutes and timely removed to this court on March 23, 2004.
Plaintiff now seeks leave of court to file an Amended Complaint (docket #22) to add specifications of negligence and products liability, increase the amount of damages, and add punitive damages on his negligence and products liability claims. For the reasons set forth below, that motion is granted, with one minor exception.
STANDARDS
Amendment of the complaint is governed by Federal Rule of Civil Procedure ("FRCP") 15(a), which provides that after a responsive pleading has been filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." In general, whether to grant or deny a motion to amend the pleadings is a matter of the court's discretion. Sweaney v. Ada County, 119 F3d 1385, 1392 (9th Cir 1997).
Federal policy strongly favors determination of cases on their merits. Howey v. United States, 481 F2d 1187, 1190 (9th Cir 1973) (citations omitted). Therefore, the role of pleadings is limited, and leave to amend is "freely given." Foman v. Davis, 371 US 178, 182 (1962). "Liberality in granting a plaintiff leave to amend is subject to the qualification that the amendment not cause undue prejudice to the defendant, is not sought in bad faith, and is not futile." Bowles v. Reade, 198 F3d 752, 757 (9th Cir 1999) (citation omitted); see also Bonin v. Calderon, 59 F3d 815, 845 (9th Cir 1995), cert denied, 516 US 1051 (1996) (factors considered in determining whether to grant a motion to amend under FRCP 15 include undue delay, bad faith, prejudice to the opposing party, whether the party has previously amended his pleadings, and futility of amendment).
DISCUSSION
Of the new allegations in the proposed Amended Complaint, defendants object only to paragraphs 10B, 27-30, 41, and plaintiff's prayer for punitive damages for two primary reasons: (1) no causal relationship exists between plaintiff's injury and these proposed allegations; and (2) adding punitive damages would be futile due to the lack of admissible evidence.
I. ¶ 10B
Paragraph 10B of the proposed Amended Complaint alleges that defendants were negligent "[i]n failing to seek the assurance of the manufacturer that the children's toy Defendant intended to import did not contain lead or other dangerous metals." Defendant object to inclusion of the phrase "or other dangerous metals" because plaintiff does not allege that any dangerous metals other than lead caused him injury.
Plaintiff responds that it will present evidence at trial that the other dangerous substances in the pendant were antimony and arsenic, the ingestion of which contributed to plaintiff's injury. However, nothing in the proposed Amended Complaint connects these "other dangerous metals" to plaintiff's injury. Instead, paragraphs 11 and 36 specifically allege that plaintiff's injuries were caused by lead poisoning. Unless plaintiff amends his other allegations to relate these "other dangerous metals" to plaintiff's injury, defendants' objection is well-taken.
II. ¶¶ 27-30
Defendants object to paragraphs 27, 28, and 29 of the proposed Amended Complaint alleging that defendant L.M. Becker misrepresented to the Consumer Product Safety Commission that it caused the product to be tested and complied with ASTM standards, failed to warn consumers that the product contained dangerous levels of lead, and failed to identify the kind of pendant ingested by plaintiff as one of the products to be recalled. Because this alleged conduct occurred after plaintiff was injured, defendants deem it irrelevant and insufficient to support the request for punitive damages in paragraph 30.
However, under Oregon law, a jury can consider post-injury acts or omissions when deciding whether to award punitive damages. The criteria for determining and awarding punitive damages include the "duration of the misconduct and any concealment of it" and the "attitude and conduct of the defendant upon discovery of the misconduct." ORS 30.925(2)(c) (d). The allegations in paragraphs 27-29 of the proposed Amended Complaint relate to these two specific criteria. Therefore, the allegations are causally connected to the request for punitive damages in paragraph 30 and are not futile.
III. Punitive Damages
Defendants contend that plaintiff's punitive damages claim in paragraphs 30, 41, and the prayer violates ORS 31.725. That statute forbids a party from pleading punitive damages in the initial complaint and then requires the party to request leave to amend the complaint to add punitive damages with supporting "affidavits and documentation." The affidavit by plaintiff's attorney supporting the motion for leave to amend merely restates some of plaintiff's new allegations and contains no admissible evidence and attaches no documents.
Although ORS 31.725 may have applied to this case when it was initially filed in state court, it does not apply now that the case is removed to this court. Instead, in federal diversity cases such as this one, the Federal Rules of Civil Procedure govern. The federal rules permit a plaintiff to pray for punitive damages in the complaint and then seek discovery on defendant's conduct and ability to pay. Pruett v. Erickson Air-Crane Co., 183 FRD 248, 250-51 (D Or 1998), citing FRCP 8, 9, and 26. Here, plaintiff has set forth sufficient allegations under FRCP 8(a)(2) to support a claim of punitive damages. He is not required to submit admissible evidence in support of his amendment to allege punitive damages.
ORDER
For the reasons set forth above, plaintiff's Motion for Leave of Court to File Amended Complaint (docket # 22) is DENIED as to the phrase "other dangerous metals" in paragraph 10B and otherwise GRANTED. Plaintiff shall file his Amended Complaint within 10 days of this Order.