S056715, Opinion — Cler v. Providence Health System-Oregon

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Argued and submitted September 14, 2009, decision of Court of Appeals reversed;
judgment of circuit court reversed, and case remanded to circuit court for further
proceedings December 30, 2010

Alan CLER
and Debi Cler,
Petitioners on Review,
v.

PROVIDENCE HEALTH SYSTEM - OREGON,
dba Providence St. Vincent Medical,
Defendants,
and
OREGON HEMATOLOGY ONCOLOGY
ASSOCIATES, PC.,
Respondent on Review.
(CC 0401-00189; CA A130443; SC S056715)
245 P3d 642

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CJS, Appeal and Error § 825.

# En Banc

On review from the Court of Appeals .*

Stephen C. Hendricks, Hendricks Law Firm, P.C.,
Portland, argued the cause and filed the brief for petitioners
on review.

\* Appeal from Multnomah County Circuit Court, Marilyn E. Litzenberger,
Judge. 222 Or App 183, 192 P3d 838 (2008).

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Janet M. Schroer, Hoffman Hart & Wagner, LLP,
Portland, argued the cause and filed the brief for respondent
on review. With her on the brief was Marjorie A. Speirs.

DURHAM, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

Linder, J., dissented and filed an opinion in which
Balmer and Kistler, JJ., joined

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# DURHAM, J.

Plaintiff Alan Cler suffered severe injury to his arm
and hand after receiving intravenous chemotherapy
treatment from defendant Oregon Hematology Oncology
Associates, PC. Cler and his wife (plaintiffs) brought this
action against defendant, alleging that one of defendant's
nurses had caused Cler's injury by negligently administering
the chemotherapy treatment. During defendant's closing
argument, defense counsel made several factual statements
regarding a nurse expert who did not testify at trial; the
statements had no basis in this record. The trial court over-
ruled plaintiffs' counsel's objections to the statements. The
jury returned a verdict for defendant. On appeal, plaintiffs
argued that the trial court had abused its discretion in allow-
ing defense counsel, during closing argument, to present
facts to the jury regarding the anticipated testimony of an
expert witness that was not in the record. The Court of
Appeals affirmed the trial court's decision. Cler v. Providence
Health System-Oregon, 222 Or App 183, 192 P3d 838 (2008).1
We allowed plaintiffs' petition for review and, for the reasons
that follow, now reverse and remand for a new trial.

After Cler was diagnosed with Hodgkin's Lymphoma,
a form of cancer, he opted to undergo chemotherapy treat-
ment that included the intravenous injection of a drug called
Adriamycin. Adriamycin can cause tissue damage if it leaks
out of a patient's vein and into other tissues. During Cler's
first chemotherapy session, an oncology nurse employed by
defendant administered Adriamycin, which leaked from
Cler's vein and caused severe damage to Cler's arm and
hand. Plaintiffs filed this personal injury action, alleging that
defendant's nurse had not met the standard of care required
for an oncology nurse in her treatment of Cler. The case pro-
ceeded to jury trial.

At the beginning of trial, the parties offered opening
statements. During her opening statement, defense counsel
told the jury that she would be calling an oncology nurse, a

1 Providence Health System-Oregon was dismissed from the action and is not
a party to this appeal. All references to "defendant" are to Oregon Hematology
Oncology Associates, PC.

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nurse manager at Oregon Health Sciences University, to tes-
tify as an expert witness. Defense counsel offered a summary
of the nurse expert's expected testimony, namely, that defen-
dant's nurse had met the applicable standard of care for
oncology nurses in administering intravenous chemotherapy
treatment and that several other events and circumstances,
all consistent with good care, could have resulted in the
injury that plaintiff suffered.

On the fifth day of trial, plaintiffs were still present-
ing their case-in chief. Before plaintiffs called Cler as their
last witness, defense counsel stated to the court, "Judge, I do
have a doctor here, who I would like to be able to get on if I
can." Plaintiffs' counsel objected. After an off-the-record dis-
cussion in chambers, the judge and the lawyers returned to
the courtroom, and the judge addressed the jury: "Jurors,
we're going to give [defense counsel] an opportunity to talk
with a couple of her witnesses in the hallway and then we'll
be resuming testimony just shortly." After a short break,
plaintiffs' counsel called Cler to testify. The next day, defen-
dant's oncology doctor expert testified. Defense counsel did
not call a nurse expert to testify on defendant's behalf at
trial.2

During closing argument, plaintiffs' counsel drew
attention to defendant's failure to call a nurse expert:

"Can you imagine this institution, Oregon Hematology
Oncology, and they have not called an independent nurse
expert to justify the care in this case? * *

"But on a case where we're talking about nursing care,
and everyone agrees * * * when it comes to actually giving
the drugs nowadays, this is nursing duty. Nurses do this.
Doctors don't do this. They don't have an independent nurse
expert.

"I mean, can you imagine? Now, there's a reason. It is
probably because they couldn't get a nurse expert who

2 The parties dispute the details of what occurred during the in-chambers dis-
cussion with the judge, as well as the details of the scheduling issues. In our view,
the details surrounding the nurse's failure to testify are not pertinent to the ques-
tion before us on review. The pertinent fact is that defendant did not ultimately call
the oncology nurse expert to testify.

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would say that this was okay care. That's the conclusion
that's easy to draw on."

Defense counsel raised no objection to those statements.
Instead, in her closing argument, defense counsel stated:

"Now, one thing I just want to mention before I forget,
[plaintiffs' counsel] said that we didn't even call an oncology
nurse. And I hope you remember that when I started my
case, and I gave my opening statement, I told you that I had
[two doctors] and [an oncology nurse] who is the nurse man-
ager at OHSU and has 20 years' of experience in oncology. I
hope you remember that-"

Plaintiffs' counsel objected that defense counsel was "close to
testifying as opposed to addressing the evidence that was
before the court." The trial court responded: "I'm going to let
her continue * * * in the same vein that you addressed the
evidence." Defense counsel continued by stating that, at one
point during the trial, her nurse expert had been in the court-
room waiting to testify. After plaintiffs' counsel objected
twice more, the trial court asked counsel to discuss the mat-
ter in chambers. Following that discussion, defense counsel
continued her closing argument:

"[The oncology nurse expert] was here on [the fifth day
of trial,3] prepared to testify in the afternoon. She sat in the
courtroom all afternoon, and she didn't get on because
[plaintiffs' counsel] was calling Mr. Cler in the afternoon.
She had to leave on the following day. She got on a plane.
She was scheduled to go on vacation. That's why you didn't
hear from [her]. She was prepared to be here. She sat in the
courtroom all that afternoon, and again, she was prepared
to testify and would have testified in our case and sup-
ported our case."4

3 Although defense counsel actually referred to the sixth day of trial, her ref-
erence to Mr. Cler and the surrounding context make it clear that she meant the
fifth day of trial.

4 Although plaintiffs did not object again at this point, we determine that
plaintiffs' earlier objections adequately preserved plaintiffs' argument that defense
counsel was impermissibly arguing facts not in evidence. As the trial court later
observed in its order denying plaintiffs' motion for a new trial, "after the in-chambers
discussion between the [trial court] and counsel, plaintiffs' counsel may have felt it
would be futile to continue with his same objections."

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In his rebuttal argument, plaintiffs' counsel addressed
defense counsel's comments concerning the failure of the
nurse expert to testify:

"You heard me object to the thing about the nurse
expert. I feel pretty strongly about this. Look, anybody that
tries these cases knows that you better get your most
important and your best witness on.

"Now, you guys sat through the testimony and you know
that we accommodated [defense counsel] by taking two wit-
nesses out of turn. She had every, every opportunity to get a
nurse expert in to testify in this case. If she didn't want to
call that nurse at some particular time, there's another pro-
cedure that's available.

"You can take a witness outside the bounds of the court-
room and you can do a videotape deposition and set up a
camera and bring it in. You saw-I don't know if you saw
there's a television in the courtroom for a couple of days. So
you can play perpetuated testimony on a TV.

"She had every opportunity under the rules that we do
these cases to get this witness in here, and she did not. So I
think that you still have to conclude there's a reason that
she did not."

The trial court gave no special jury instructions regarding the
nurse expert, but did give the jury the standard instruction
that it must decide the case based on the evidence (testimony
and exhibits) presented at trial and that counsel's opening
statements and closing arguments are not evidence. The jury
returned a verdict for defendant.

Plaintiffs filed a motion for a new trial, arguing,
among other things, that the trial court had abused its discre-
tion by permitting defense counsel to present facts in her
closing statement that were not in evidence. The trial court
denied plaintiffs' motion, concluding that the court's failure
to sustain the objections that plaintiffs' counsel made during
defense counsel's closing argument "did not substantially
affect plaintiffs' rights" because the statements "were not
probative of the substantive factual issues in the case, nor did
they raise an issue with respect to the credibility of a wit-
ness." The court also noted that plaintiffs' counsel had been
able to rebut defense counsel's statements in rebuttal "by

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explaining ways in which defendant could have preserved
the expert's testimony for trial and by suggesting that
defense counsel made choices regarding the order in which
she called her experts."

Plaintiffs appealed, assigning error to the trial
court's ruling on plaintiffs' objections to the statements made
in defendant's closing argument. The Court of Appeals
agreed with plaintiffs that the trial court had abused its dis-
cretion in allowing improper argument by defense counsel
during closing statements. Cler, 220 Or App at 189. The court
concluded, however, that the error did not substantially
affect plaintiffs' rights for three reasons: (1) the trial court
instructed the jury that opening and closing statements are
not evidence; (2) the discussion of plaintiffs' nurse expert
"was not even a forkful of the entire evidentiary pie;" and
(3) the trial court, which was in the best position to evaluate
the effect of the improper argument, assessed any prejudice
to plaintiffs as minimal. Id. at 191-92. Accordingly, the Court
of Appeals affirmed the trial court judgment.

On review, the parties reprise the arguments that
they made to the Court of Appeals. Plaintiffs argue that a
trial court abuses its discretion by allowing counsel to
deliberately relate facts not in evidence to the jury during
argument, and that such action is per se prejudicial because it
violates the other party's "right to a fair trial within well-
established rules." In response, defendant argues that a trial
court does not abuse its discretion by allowing counsel to
introduce facts not in evidence during argument when those
facts are collateral and when the opposing counsel has
"opened the door" with his or her own improper argument.
Defendant further argues that, on this record, plaintiffs can-
not demonstrate that the statements at issue by defense
counsel were sufficiently prejudicial so as to warrant
reversal.

We review a trial court's decisions regarding control
of jury argument for an abuse of discretion. R.J. Frank
Realty, Inc. v. Heuvel, 284 Or 301, 306, 586 P2d 1123 (1978).
In general, in presenting closing arguments to the jury, coun-
sel have "a large degree of freedom" to comment on the evi-
dence submitted and urge the jury to draw any and all legit-
imate inferences from that evidence. Huber v. Miller, 41 Or

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103, 115, 68 P 400 (1902). However, that freedom is not with-
out limitations:5 One such limitation is that counsel may not
make "statements of facts outside the range of evidence." Id .;
see also John H. Wigmore, 6 Evidence in Trials at Common
Law § 1807 (Chadbourn rev 1979) ("[C]ounsel must not make
assertions as to facts of which evidence must have been intro-
duced but has not been or will not be introduced." (emphasis
omitted)); Trial, 88 CJS 353 § 309 (2008) (“Counsel must be
confined to the issues and the evidence, and will not be
allowed to comment on or state facts not in evidence or within
the issues.").

In closing argument in this case, over plaintiffs'
counsel's objection, defense counsel made four statements of
fact that were not testified to by any witness or otherwise
admitted into evidence: (1) an oncology nurse manager with
20 years of experience had been prepared to testify on defen-
dant's behalf; (2) the nurse expert had been waiting in the
courtroom to testify on the afternoon of the fifth day of trial;
(3) the reason that the nurse expert did not testify was
because plaintiffs' counsel called a witness that afternoon
and the nurse expert had to go on vacation the following day;
and (4) if the nurse expert had testified, she would have "sup-
ported [defendant's] case." Defense counsel had no basis in
the record to offer those statements to the jury in her closing
argument.

Defendant submits that, in this case, the extra-
record statements were proper because, during closing argu-
ment, plaintiffs' counsel had commented on defendant's fail-
ure to call a nurse expert, asking the jury to draw the
inference that defendant could not find a nurse expert who
would have testified that the nurse who treated Mr. Cler had
acted within the applicable standard of care. According to
defendant, plaintiffs' counsel's comment was improper
because plaintiffs' counsel was aware that the nurse expert
had not testified because of scheduling issues. As a result,

See, e.g., R.J. Frank Realty, 284 Or at 306 (counsel should refrain from abu-
sive arguments); State Highway Comm'n v. Callahan, 242 Or 551, 558, 410 P2d 818
(1966) (arguments that are "highly inflammatory * * * and had no reasonable rel-
evance" to the issues in the case are improper); Bratt v. Smith, 180 Or 50, 60, 175
P2d 444 (1946) (arguments that directly appeal to "passion and prejudice" are
beyond the bounds of legitimate comment on the evidence).

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defendant concludes, plaintiffs' misleading statements
"provoked" or "invited" defense counsel's statements. We
disagree.

In calling attention to defendant's failure to call a
nurse expert, plaintiffs' counsel invoked the missing witness
inference. In general terms, that inference provides that,
"[w]hen it would be natural under the circumstances for a
party to call a particular witness * * * and the party fails to
do so, tradition has allowed the adversary to use this failure
as the basis for invoking an adverse inference." 2 McCormick
on Evidence § 264, at 220 (6th ed 2006). In Bohle v. Matson
Navigation Co., 243 Or 196, 198, 412 P2d 367 (1966), the
court approved generally the use of that inference, holding
that the plaintiff's counsel in a personal injury case should
have been allowed to comment in closing argument on the
failure of the defendant to call a doctor who had examined the
plaintiff at defendant's request because "it is a natural infer-
ence that he would have been called if his testimony would
help the defendant's case." Id. The invocation of the missing
witness inference by plaintiff's counsel was consistent with
the holding in Bohle. As the trial court acknowledged, plain-
tiff's counsel's comments "addressed the evidence" in the trial
record.

If a party believes that an opponent has invoked the
missing witness inference improperly, the party is not with-
out recourse. The party may timely object, and, if necessary,
move to strike or request a curative jury instruction. If evi-
dence in the record provides an alternative explanation for a
party's failure to call a witness, that party properly may com-
ment thereon. Trial, 88 CJS 360 § 313 ("It is proper for coun-
sel to account for the absence of a desired witness where such
absence would be a proper subject for comment by his or her
opponent, where the explanation is based on evidence in the
record, but not otherwise." (emphasis added; footnote omit-
ted)). But a party may not pursue the course of action that
defendant chose in this case: A party may not deprive the
court of the opportunity to rule on the propriety of an oppo-
nent's statement by remaining silent during the opponent's
closing argument, and then resorting to self-help by present-
ing argument based on facts not in evidence. Here, defense

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counsel failed to object to plaintiffs' counsel's use of the miss-
ing witness inference in closing argument. Defense counsel
never placed the propriety of plaintiffs' counsel's statements
at issue at trial and that issue is not properly assigned as
error on review.

The Court of Appeals, in assessing whether the trial
court abused its discretion, determined that jury argument
may refer to matters that are within the scope of the issues
and the evidence, but that evidence outside the record may
not be suggested by any means. 222 Or App 183. For that
proposition, the Court of Appeals cited ORS 40.025(3) (OEC
103(3)), which provides:

"In jury cases, proceedings shall be conducted, to the
extent practicable, so as to prevent inadmissible evidence
from being suggested to the jury by any means, such as
making statements or offers of proof or asking questions in
the hearing of the jury."

We agree with the Court of Appeals. Accordingly, we have no
trouble also agreeing with the Court of Appeals that the trial
court abused its discretion by overruling plaintiffs' objections
to defendant's improper argument.

Having concluded that the trial court abused its dis-
cretion in allowing defense counsel's statements, we turn to
the question of whether that error requires reversal. We will
reverse a trial court's judgment only if the trial court's error
substantially affected a party's rights. See ORS 19.415(2)
("No judgment shall be reversed or modified except for error
substantially affecting the rights of a party.").

In addressing plaintiffs' contention that defense
counsel's statements regarding facts not in evidence substan-
tially affected plaintiffs' rights, we focus first on the particu-
lar right at issue in this case: the right to require opposing
counsel to confine her closing argument to the jury to facts
admitted into evidence and permissible inferences from those
facts. Although not evidence themselves, closing arguments
"are an integral part of trial" that can alter the result of the
trial:

"They provide the attorneys with their final opportunity to
'persuade the jury to adopt a particular view of the facts.'

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Ireland v. Mitchell, 226 Or 286, 295, 359 P2d 894 (1961). It
is through closing arguments that the attorneys are able to
fully frame the issues and remind the jury of evidence that
they may have heard days earlier. Further, arguments give
the attorneys a chance to explain the evidence in narrative
form. That narrative function of arguments-the opportu-
nity to tell the story of the case-is essential to effective
advocacy, and the ability to do so can alter the jury's under-
standing of the evidence and ultimately change the out-
come of a given case."

Charles v. Palomo, 347 Or 695, 705, 227 P3d 737 (2010) (hold-
ing that the trial court's error in denying the plaintiff rebut-
tal argument substantially affected the plaintiff's rights).
The integrity of closing arguments can only be ensured when
the court requires the parties to limit their arguments to the
facts in evidence and permissible inferences from those facts.
See Kuehl v. Hamilton, 136 Or 240, 249, 297 P 1043 (1931)
(noting that "[e]very litigant is entitled to a fair trial, and this
result cannot be achieved if counsel is permitted to make
statements to the jury of facts not testified to by any witness
nor admissible in evidence"). Thus, a party's introduction of
facts not in evidence during closing arguments can substan-
tially affect the opposing party's rights.

We determine that, in this case, defense counsel's
introduction during closing argument of facts not in evidence
substantially affected plaintiffs' rights. In his closing argu-
ment, plaintiffs' counsel framed his narrative of the case. One
aspect of that narrative involved asking the jury to draw an
inference from defendant's failure to call a nurse expert.6
Defense counsel then framed a different narrative of the case,
but in doing so, impermissibly interjected extra-record facts
into the case after the parties had rested. Defense counsel
introduced those facts over plaintiffs' counsel's repeated
objections and after an in-chambers discussion between the
court and counsel. In that context, from the jury's perspec-
tive, defendant's account of the absence of the nurse expert
would appear to have received the trial court's imprimatur.

" The dissent asserts that we have treated plaintiffs' jury argument as irrele-
vant to the analysis of prejudice. We disagree. We have considered the entire rec-
ord, including plaintiff's jury argument, to determine whether the trial court's
error "substantially affect[ed] the rights of a party." ORS 19.415(2).

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Thus, plaintiffs' counsel's ability to rebut defense counsel's
explanation of the nurse expert's absence was weakened
substantially.

Moreover, by making the assertion that the nurse
expert "would have supported" defendant's case, defense
counsel supplied, at least in general terms, the testimony of a
witness who was not subject to oath or cross-examination.7
See ORS 40.320(1) ("Before testifying, every witness shall be
required to declare that the witness will testify truthfully, by
oath or affirmation * * *. ); Wigmore, 6 Evidence in Trials at
Common Law § 1806 (when counsel argues facts not in evi-
dence, counsel becomes a witness without being subject to
cross-examination, in violation of the fundamental purpose of
the hearsay rule). The trial court's admonition to the jury
that the lawyers' arguments "are not evidence" does not over-
come that problem, in our view. That admonition operates on
the assumption, noted above, that the record evidence frames
the context within which lawyer argumentation permissibly
may occur. The court's admonition helps the jury understand
that it must not confuse a lawyer's advocacy about the record
with the actual witness testimony and other evidence that
the court has admitted into the record in accordance with the
rules of evidence. The comments of defense counsel to the
jury here, however, did not simply convey her view of the rec-
ord evidence. Rather, defense counsel characterized for the
jury the purported testimony of a witness who never took the

" The dissent has determined that plaintiffs' argument to the jury was not
proper and amounted to a misrepresentation. From that premise, the dissent
argues that defense counsel sought only to correct that misrepresentation by refer-
ring to facts that, according to the dissent, the jury likely already knew by, for
example, viewing people sitting in the courtroom during trial and speculating
about how they might testify if called. We decline to consider those assertions as
facts established in the record. Although the dissent cites several legal propositions
with which we have no disagreement, we read the factual record quite differently;
our different reading of the record supports our disposition here. For example, in
our view, plaintiffs' counsel's closing argument was not a misrepresentation and
was not improper. That is so because, according to the record, the defense had not
called a nurse expert witness, either in person or by introducing an expert's testi-
mony through a deposition. Nothing compelled plaintiffs' counsel to concur with
defense counsel's asserted reason for not calling the expert witness or the claim
that the witness would have supported defendant's case. The dissent apparently
believes that defense counsel conveyed nothing of the actual substance of the nurse
expert's testimony to the jury but, again, we read the record differently and reach
a different conclusion.

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witness stand. That conduct creates an unacceptable risk
that the jury would consider the statement as that of the
unsworn witness and not solely that of the lawyer. ORS
40.025(3) deters the suggestion of inadmissible evidence to
the jury by any means, including through counsel's state-
ments; it does not somehow authorize that sort of conduct so
long as the trial court admonishes the jury that the state-
ments are not evidence. For that reason, the court's admoni-
tion to the jury does not eliminate the prejudicial effect of the
trial court's error.

The assertion that a nurse expert would have sup-
ported defendant's position was material to the central issue
in the case: whether defendant's nurse complied with the
applicable standard of care for oncology nurses. Because
defense counsel's assertion that the nurse expert "would have
supported" defendant's case was not based on evidence in the
record, the court's ruling deprived plaintiffs' counsel of the
opportunity to cross-examine that factual assertion or other-
wise rebut defense counsel's factual claim. In light of those
circumstances, we conclude that the trial court's failure to
sustain plaintiffs' objections to defense counsel's comments
substantially affected plaintiffs' rights. ORS 19.415(2).

The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

LINDER, J., dissenting.

A common situation in jury trials, both civil and
criminal, is the problem of the so-called "invited response" or
"invited reply." It occurs when one party, in closing argu-
ment, resorts to an improper argument that, if left unad-
dressed, could mislead the jury or otherwise encourage the
jury to base its verdict on an impermissible consideration.
The other party fails to object and, to counter the provoking
argument, resorts to improper argument in response. If the
party who provoked the exchanges loses and appeals, it often
falls to the appellate court to determine in such a circum-
stance whether the "invited response" was error and, if so,
whether the error was prejudicial and warrants a new trial.

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In this classic "invited response" situation, the
majority holds that the fact that one party engages in
improper argument does not mean that the opposing party
may do the same in response. Thus, if the "invited response"
is improper in substance, and if there is a timely objection to
it, the trial court must sustain the objection. I agree with that
portion of the majority's holding, which is consistent with
this court's precedents and with the better rule endorsed in
other jurisdictions.

The majority takes a serious misstep in further hold-
ing, however, that the provoking argument is irrelevant in
determining whether the error warrants reversal. To the con-
trary, the substance of the provoking argument is context for
accurately evaluating the likelihood that the jury's verdict
was influenced by an impermissible consideration. As I will
discuss, plaintiffs in this case invited the jury to draw an
unfavorable inference against the defense that the evidence
in the record did not support. In response, defendant, too,
improperly went beyond the evidence in the record. Consid-
ered in context, however, defendant's argument merely offset
the improper inference that plaintiffs had invited the jury to
draw. The only "prejudice" to plaintiffs was that they may
have been deprived of the benefit of their own improper argu-
ment. Consistent with our precedents, the considered rule
adopted by other courts, and our constitutional obligation to
affirm in the absence of prejudice, plaintiffs are not entitled
to a reversal and a new trial in this case. For that reason, I
dissent.

I begin by recapping the pertinent facts. In this med-
ical negligence case, the defense in opening statements to the
jury briefly summarized the expected testimony of three
experts it intended to call in support of its case, including
that of a nurse manager of the oncology unit at Oregon
Health and Science University. On the day that the nurse
expert was to testify, she was in the courtroom throughout
the afternoon. The defense did not call her that day due to
scheduling issues, however. Because the nurse expert was
leaving town the next day on a prescheduled vacation, the
defense did not call her on either of the two remaining days of
trial. By the time the parties presented closing arguments to
the jury, defense counsel had explained to plaintiffs' counsel

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(as well as to the trial court) why the nurse expert had not
testified. Despite his awareness of that explanation, plain-
tiffs' counsel during closing argument told the jury that
"there's a reason" why plaintiffs had not called a nurse wit-
ness, that it was probably because the defense could not find
one that would testify in its favor, and that the jury should so
conclude.

Defense counsel did not object. In her closing argu-
ment, after arguing in detail and at length about the signifi-
cance of the testimony of each side's experts, defense counsel
noted that she wanted to "mention" something in response to
plaintiffs' counsel's argument about defendant's failure to
call an oncology nurse. Defense counsel reminded the jury
that, in opening statements, she had indicated that she was
going to call a nurse expert with 20 years of experience.
Plaintiffs' counsel did not formally object at that point, but
did voice concern to the trial court about where counsel might
be headed with her argument. The trial court indicated that
it would let defense counsel continue "in the same vein" in
which plaintiffs' counsel had addressed the argument.
Defense counsel continued by explaining why the nurse
expert did not testify. Plaintiffs' counsel interrupted, object-
ing (more than once) that defense counsel was relying on
facts not in evidence. The trial court, after discussing the
matter in chambers with counsel, overruled the objection.
Defense counsel completed her explanation to the jury,
briefly reminding it that defendant's nurse expert had been
in the courtroom, describing the scheduling conflict that
caused defense counsel not to call the nurse expert, and stat-
ing that the nurse expert otherwise would have "testified in
our case and supported our case."

In plaintiff's rebuttal argument, plaintiffs' counsel
replied to defense counsel's response. Counsel asserted, with-
out objection, that the defense had "every opportunity" to put
that nurse expert on the stand and explained how the
defense could have deposed or otherwise perpetuated the
nurse expert's testimony. Plaintiffs' counsel concluded by
again urging the jury to draw an inference against the
defense from its failure to call a nurse witness. After deliber-
ating, the jury returned a verdict for the defense.

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As plaintiffs successfully argued to the Court of
Appeals, and argue again to this court, defense counsel, in
explaining why the nurse expert did not testify, impermissi-
bly referred to facts that were not in evidence. See generally
Huber v. Miller, 41 Or 103, 115, 68 P 400 (1902) (a party in
closing argument may not make "statements of facts outside
the range of evidence" or "assume a fact as though proven
when no such inference can be reasonably drawn from the
evidence"). In particular, defense counsel described the
scheduling problems that caused her not to call the nurse
expert who, in opening statements, she had said she would
call. She also told the jury that the nurse expert would have
testified in support of the defendant's case. No "evidence" in
the record established those "facts."" When the trial court
allowed defense counsel to argue over plaintiffs' timely objec-
tions on that ground, the trial court erred. See generally State
v. Blodgett, 50 Or 329, 342, 92 P 820 (1907) (if one party
argues facts not in evidence and not otherwise admissible,
trial court must sustain objection to that argument, rather
than leave the other side to refute the assertions in reply).

Plaintiffs' argument, however, was equally improper.
In closing argument, after expressing incredulity at defen-
dant's failure to call a nurse expert, counsel told the jury that
"there's a reason" why defendant did not do so, and it was
"probably because they couldn't get a nurse expert who would
say that this was okay care." After defense counsel explained
the scheduling issue that arose, plaintiffs' counsel in rebuttal
advised the jury of ways in which the defense could have per-
petuated the witness's testimony, and urged the jury again to
draw an unfavorable inference against the defense from its
failure to call a nurse expert. Plaintiffs' counsel advanced
those arguments knowing that the defense had a nurse

1 For present purposes, I am willing to presume that a description to the jury of
the scheduling problem that arose during the trial is a "fact not in evidence" within
the meaning of that familiar doctrine. It is less than clear to me, however, whether
that is correct. Juries are often apprised of scheduling issues and other procedural
events, if for no other reason than to explain why continuances, protracted reces-
ses, or other changes to the expected trial schedule have become necessary.
Explaining such circumstances to a jury is not the kind of information that ordi-
narily is delivered by sworn testimony. Cf. United States v. Long, 533 F2d 505, 509
(9th Cir 1976) (trial court properly advised jury that informant's failure to testify
was due to court's procedural ruling).

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expert that it intended to call and aware of defense counsel's
reasons for not calling her.2

In making that argument, plaintiffs invoked a
so-called "missing witness" inference-e.g., "[w]hen it would
be natural under the circumstances for a party to call a par-
ticular witness, or to take the stand as a witness in a civil
case * * * and the party fails to do so, tradition has allowed
the adversary to use this failure as the basis for invoking an
adverse inference." 2 McCormick on Evidence § 264, 220 (6th
ed 2006). For present purposes, it is not necessary to explore
the intricacies of the inference and when it is properly
invoked.3 It suffices to observe that the inference does not
arise from "the bare fact that a particular person is not pro-
duced as a witness." John Henry Wigmore, 2 Evidence § 286,
199 (Chadbourn rev 1979); see also Tenny v. Mulvaney, 8 Or
513, 521-22 (1880) (mere fact that witness was not called was
not sufficient to support inference that witness's testimony
would have been unfavorable to defendants). Rather, it is
proper only when the particular circumstances of a case sup-
port it, such as when it would be natural for a party to call a
particular witness, and the party, without explanation, has
failed to do so. See generally Bohle v. Matson Navigation Co.,
243 Or 196, 198-99, 412 P2d 367 (1966) (stating general rule).
Among the limitations on the inference is the requirement
that the witness in fact be within the power of the party to
produce, both legally and practically. State v. Hatcher, 29 Or
309, 317-18, 44 P 584 (1896) (party cannot urge adverse
inference from failure to call a witness where record did not

2 Although the parties disputed certain facts pertaining to the scheduling
issues at trial, the only pertinent fact for purposes of the issue on review, which is
not disputed, is that plaintiffs' counsel had been informed, before closing argu-
ment, why defense counsel did not call its nurse expert. In all events, to whatever
extent there were factual disputes pertinent to the issue we must decide, they were
implicitly resolved against plaintiffs by the trial court.

3 The rules limiting the availability of the inference do so because it so readily
invites abuse by counsel. As one commentator has observed: "Too often the [miss-
ing witness] rule is treated as just another weapon available for the duel between
the lawyers. Counsel invoke the inference of adverse testimony without any con-
cern for the actual content of the evidence and sometimes even urge an inference
known to be false just to gain an advantage." Robert H. Stier, Jr., Revisiting the
Missing Witness Inference-Quieting the Loud Voice from the Empty Chair, 44 Md
L Rev 137, 155 (1985).

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show that witness was within the power of the party to pro-
duce); see generally Wigmore, 2 Evidence § 286 at 200-02
(stating limitation and citing representative cases). If, for
example, a person is disqualified as a witness or could not be
called due to illness or some other practical circumstance,
the inference is not permissible. Id. (citing representative
cases).4

In the circumstances of this case, plaintiffs' resort to
the missing witness inference was not proper argument.
Plaintiffs' counsel invited the jury to draw an inference that
he had no basis to believe was true (i.e., that no nurse expert
was prepared to testify in favor of defendant), and had ample
reason to believe was not true, given defense counsel's expla-
nation in advance of closing arguments that her nurse expert
did not testify due to scheduling issues. No authority
approves of the missing witness inference when the party
seeking the inference has been previously informed-as
plaintiffs' counsel had been here-that the defense had not
called the witness due to scheduling issues.5 Analogous cases,
instead, uniformly hold that the inference is not permissible
in such a circumstance. See, e.g., Bender v. Adelson, 187 NJ
411, 433-46, 901 A2d 907 (2006) (where plaintiff knew that
defendants had two independent expert witnesses who
were precluded from testifying for procedural reasons, per-
mitting missing witness inference was error because it

4 The missing witness inference is "always open to explanation" by the party
against whom the inference is invoked. Wigmore, 2 Evidence § 285 at 192. The fact
that the inference is usually advanced in closing argument therefore poses prob-
lems of fairness and judicial efficiency. As one authority cautions, "[t]he possibility
that the inference may be drawn invites waste of time in calling unnecessary wit-
nesses or in presenting evidence to explain why they were not called." 2 McCormick
on Evidence § 264 at 223. The inference also can entail "substantial possibilities of
surprise." Id. Because of those problems, some jurisdictions require the advance
permission of the trial court before arguing the inference. See, e.g., Thomas v.
United States, 447 A2d 52, 58 (DC 1982) (because of dangers of missing witness
argument, which essentially creates evidence from nonevidence, permission of
court must be obtained before inference can be suggested to jury; onus is not on the
party against whom an inference is made to object after the fact).

5 Neither do plaintiffs cite any authority to suggest that their argument under
these circumstances was proper. They rely principally on Bohle, which merely
states the baseline principle that a missing witness inference is proper when the
particular circumstances are such that the inference is a natural one to draw. 243
Or at 198-99. Beyond that, plaintiffs merely assert, without elaboration or evident
support, that their own closing argument to the jury was "reasonable and well
established under Oregon law."

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"implied an untruth" and played on jury's ignorance of actual
reason why witnesses did not appear; error required new
trial).6

By urging the missing witness inference when it was
not a permissible one, plaintiffs themselves invited the jury
to rely on a "fact"-i.e., the inferred fact that defense counsel
could not find any nurse expert to testify in its favor-that
was not established by evidence in the record. That is the
essential problem with a missing witness inference in cir-
cumstances that do not adequately support it. See generally
Hatcher, 29 Or at 315-16 (counsel's impermissible reliance on
missing witness inference resulted in arguing facts to jury
that were not in evidence); Tenny, 8 Or at 521 (same).

The significant question that this case presents,
therefore, is not whether a party may argue facts or infer-
ences that lack evidentiary support in the record. It is undis-
puted that, as a general proposition, a party may not. The sig-
nificant question is, instead, whether it is relevant to the
analysis that the party was provoked to do so to respond to an
improper argument made by the opposing side.

On that point, the numerous courts in other jurisdic-
tions that have wrestled with the "invited response" problem
uniformly consider the provoking improper argument rele-
vant. They differ only on the question: Relevant to what? One
line of authority holds that the provoking argument is rele-
vant to determine whether the "invited reply" is error at all
or, if error, whether the provoking party is estopped to raise
the error on appeal." The other line of authority rejects the

6 See also Calvin v. Jewish Hosp. of St. Louis, 746 SW2d 602, 605 (Mo App
1988) ("When a witness'[s] testimony is excluded on an attorney's motion, it is mis-
conduct constituting manifest injustice and thus reversible error if that attorney
requests the jury to draw an adverse inference from his opponent's failure to pro-
duce that witness even though the error is not preserved for appellate review.").

7 Cases so holding are far too numerous to cite. For representative civil and
criminal cases holding that an invited response is not error, see Richmond
Condominiums v. Skipworth Plumbing, 245 SW3d 646, 668 (Tex Ct App 2008)
(defense counsel's "invited" closing argument not improper when in response to
and confined to the provoking argument of opposing counsel); United States v.
Schwartz, 655 F2d 140, 142 (8th Cir 1981) (under "doctrine of fair reply," govern-
ment's reply to defense counsel's statements in closing "not improper" because
defense counsel "open[ed] the door" on the issue). For representative cases holding
that the provoking party is estopped to claim error on appeal, see Fredrick u.
Dreyer, 257 NW2d 835, 839 (SD 1977) (general rule is that party whose counsel

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proposition that a provoking improper argument justifies or
precludes appellate review of an improper argument in
response; those courts, however, consider the provoking
argument a highly relevant consideration in determining
whether a reversal is warranted. As the United States
Supreme Court has explained in the lead case taking that
approach, the invited response doctrine does not give a party
"license to make otherwise improper arguments" in response
to an improper argument; it does, however, inform whether
the " 'invited response,' taken in context, unfairly prejudiced"
the opposing side. United States v. Young, 470 US 1, 12, 105
S Ct 1038, 84 L Ed 2d 1 (1985). The provoking argument is
important context for that evaluation, because it informs
whether the response merely offset the misleading nature of
the provoking argument, thus producing "no net effect on the
jury's deliberations." United States v. Mazzone, 782 F2d 757,
763 (7th Cir), cert den, 479 US 838 (1986). In other words, to
assess whether the jury was "led astray," the substance of the
invited response must be evaluated in the context of the
"opening salvo." Young, 470 US at 12; see also Darden v.
Wainwright, 477 US 168, 182, 106 S Ct 2464, 91 L Ed 2d 144
(1986) (invited response doctrine does not "excuse improper
comments," but instead seeks to accurately assess "their
effect on the trial as a whole").

Although this court has not discussed or examined
the invited response situation in any depth, our precedents
are in general accord with that latter approach. The cases on
point hold that the fact that one party advances an improper
argument to the jury does not excuse or otherwise make it
proper for the opposing party to respond in kind. See, e.g.,
Walker v. Penner, 190 Or 542, 553, 227 P2d 316 (1951)
(" '[T]he mere fact that counsel for one party has injected
improper matter into the case does not license opposing coun-
sel to commit a similar wrong'[.]") (quoting Trial, 64 CJ § 300,
281); State v. Blodgett, 50 Or 329, 92 P 820 (1907) (same). But
this court also has been unwilling to reverse such an error,

<!-- PageFooter="pursues improper argument and invites reply is estopped to complain); State v. Hall, 982 SW2d 675, 683-84 (Mo 1998), cert den, 519 US 1083 (1997) (defendant may not provoke reply with own closing argument and then assert error on appeal to prosecution's comment in response)." -->
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even with timely objection, unless the objecting party was
prejudiced, which depends on "the issue involved and the
state of the evidence." Blodgett, 50 Or at 344; see also Kuehl v.
Hamilton, 136 Or 240, 248, 297 P 1043 (1931) (reversal not
warranted where closing argument that placed facts not in
evidence before jury did not materially prejudice the object-
ing party).

In assessing the likelihood that the jury's verdict
was influenced by an impermissible consideration, this court
has considered the substance of the provoking improper
argument, as well as that of the responding argument. See,
e.g., Mckay v. Pacific Bldg. Materials Co., 156 Or 578, 591-
92, 68 P2d 127 (1937) (not reversible error for plaintiff to
improperly refer to defendant's ability to obtain insurance
where argument was in response to misleading suggestion by
defense that it could not obtain insurance, when in fact defen-
dant could do so and had done so); Storla v. S. P. & S. Trans.
Co., 140 Or 365, 369-70, 12 P2d 1009 (1932) (where defense
in closing argument urged jury that verdict would cause
defendant "a lot of harm" and "hard days of toil" knowing that
defendant was indemnified by insurance, court declined to
reverse based on responsive argument that verdict would not
cost defendant "one cent").8 And this court has endorsed the
general observation that " 'improper language used in argu-
ment is not ground for reversal, where such language was
provoked by the remarks of counsel for the adverse party'"
unless " 'it appears quite plainly that the verdict was influ-
enced thereby.'" Walker, 190 Or at 553-54 (quoting Trial, 64
CJ § 300, 281). That observation is consistent with the usual
experience of courts reviewing invited responses for preju-
dice, which is that, when the response is not out of proportion
to the provocation, the two arguments will often counter one
another in a way that does not prejudicially influence the
jury's deliberations. See Young, 470 US at 12 (observing that

8 This court in Storla arguably followed an estoppel rationale. 140 Or at 370
(party who provoked improper argument could not "with good grace" complain
about argument made in response). But the court's examination of the substance of
the two arguments suggests that, in fact, the court reached the claim of error, but
deemed the responsive argument, in the context of the argument that provoked it,
not prejudicial.

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most intermediate courts, in reviewing an invited response in
the context of the argument that provoked it, find no preju-
dice justifying reversal as long as the responsive argument is
a reasonable reply to the provocation).9

In this case, the majority takes a very different
approach, one that no other jurisdiction or authority appears
to endorse. The majority treats plaintiffs' own improper pro-
voking argument as irrelevant to the prejudice analysis by
deeming it not in issue given defense counsel's failure to
object to it. 349 Or at 490. That, however, is an inadequate
answer. The failure to object to an improper argument does
not make the argument itself proper. See generally Kuehl,
136 Or at 249 (trial courts, consistently with their traditional
power to properly oversee the arguments of counsel, should
intervene to stop arguments based on facts not in the record,
despite the lack of objection); Zimmerle v. Childers, 67 Or
465, 474, 136 P 349 (1913) (same).10 The failure to object
means only that, if the verdict is against the nonobjecting
party, that party generally may not rely on the error as a
ground for reversal on appeal, unless the error qualifies as
"plain error." State v. Montez, 309 Or 564, 601-02, 789 P2d
1352 (1990) (declining to consider claim of error in closing
argument where defendant did not object and issue was not
plain error).

Here, plaintiffs, who made the initial provoking
argument, not defendant, ask this court to dislodge the jury's
verdict and remand this case for a new trial. In keeping with
our constitutional obligation, if plaintiffs are to have that
remedy, they must identify prejudice by demonstrating that
defendant's closing argument may have caused the jury to
base its verdict on an impermissible consideration, rather
than on the evidence. Or Const, Art VII (Amended), § 3 (the
court must affirm a judgment on appeal, "notwithstanding

9 See generally Trial, 75A Am Jur 2d 63-64 § 470 (2007) ("The law indulges a
liberal attitude toward comments which are a fair retort or response to the prior
argument of opposing counsel. Thus, arguments which are replies in kind or are
provoked by arguments of opposing counsel do not amount to reversible error.").

10 See also Young, 470 US at 8-10 (trial courts should promptly intervene and
deal with improper arguments by counsel "on both sides of the table," regardless of
lack of objection, to ensure fairness of the proceedings and adherence to profes-
sional standards of conduct).

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any error committed during the trial," if the judgment "was
such as should have been rendered in the case").

This record does not support such a conclusion. Even
considered in isolation, defense counsel's argument lacked
substance. Defense counsel explained that the defense had
been prepared to call an experienced nurse oncologist, that it
did not do so due to witness scheduling problems, and that
the nurse expert would have testified and "supported [defen-
dant's] case." The only fact among those that had not already
been stated during counsel's opening statements to the jury
was the fact that the nurse did not testify due to scheduling
reasons. And it required no leap of faith or logic for the jury to
have concluded, from the fact that the defense intended to
call a nurse expert, which the jury knew, and from the fact
that she was in the courtroom throughout the afternoon on
which she was scheduled to testify, which the jury likely
observed, that the testimony of that expert would support the
defense case in some way. Defense counsel's closing argu-
ment related nothing more. In particular, defense counsel
relayed nothing of the actual substance of the testimony that
the nurse expert had been expected to give.

But in all events, considered in context, the state-
ments did no more than correct the misrepresentation that
plaintiffs' counsel created. That is, defense counsel's state-
ments neutralized the misleading inference that plaintiffs'
counsel expressly invited the jury to draw-that the defense
could not find a nurse expert who "would say that this was
okay care." When defense counsel responded to that argu-
ment, she did not ask the jury to draw any affirmative conclu-
sion. Rather, defense counsel expressly referred to plaintiffs'
argument, and explained the circumstances. In context, the
only point of the argument-and no other point was made-
was to have the jury not indulge the inference that plaintiffs
had invited. As is often true of invited responses, the net
effect of that argument was merely to counter plaintiffs' own
argument and to encourage the jury not to base its verdict on
the missing witness inference.

When, as happened here, an improper invited
response principally served to deprive the provoking party of

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the benefit of its misleading argument to the jury, that is not,
under our constitution, a basis on which an appellate court
may disturb the jury's verdict and give the party a new trial.
Yet, that is the "prejudice" identified by the majority, which
finds reversible error in this case because plaintiffs' effort to
have the jury draw the missing witness inference was "weak-
ened substantially" by defendant's response. 349 Or at 492.
The inference was not a permissible one in this case, and the
fact that plaintiffs may have been deprived of the benefit of
their improper argument is not cognizable "prejudice" and
not ground for reversal.11

Finally, the relevant context properly must consider
the trial court's instructions to the jury. Here, the trial court
twice instructed the jury that the statements of counsel were
not evidence-once at the beginning of the trial and again
immediately before closing arguments. The majority is inap-
propriately dismissive of the value of those instructions.
349 Or at 492. This court generally presumes that a jury
adheres to a trial court's instructions, Wallach v. Allstate Ins.
Co., 344 Or 314, 326, 180 P3d 19 (2008), and does so in
"invited reply" situations. See, e.g., Walker, 190 Or at 554
(considering court's instructions as factor in whether
improper invited response was reversible error). Such an
instruction might not cure a highly prejudicial closing argu-
ment, in which counsel extensively argued inflammatory off-
the-record facts that under no circumstance would have been
admissible during the trial. See, e.g., Blodgett, 50 Or at 344
(reversal for improper argument warranted where argument
injected highly inflammatory and prejudicial material that
"no one" would "contend for a moment" would have been

11 Worth noting is that plaintiffs, in all events, got the final word and a last
chance to encourage the jury to do what it should not do-draw an unfavorable
inference against the defense from the fact that the defense did not have the nurse
witness. As already described, plaintiffs' counsel argued in rebuttal that the
defense could have called the nurse witness; he explained-by going beyond the
record -- ways in which the defense could have perpetuated the nurse witness's tes-
timony despite the scheduling problems, and he urged the jury a final time to con-
clude that "there was a reason" why the defense did not call the nurse witness.
Plaintiffs were not entitled to that inference, but they got a further chance to urge
it to the jury, without objection by the defense, and with the tacit approval of the
trial court.

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admissible during trial). But this is a far distance from that
circumstance.

For those reasons, I respectfully dissent.

Balmer and Kistler, JJ., join in this dissent.