Labor & Employment Law Daily Wrap Up, PROCEDURE–Or. Sup. Ct.: Employer in whistleblower case cannot avoid retrial of issues on which it prevailed, (Jun 26, 2025)

By Nadine E. Roddy, J.D.

After a reversal and remand, the trial court’s order of a retrial of all issues in the case, including the ones decided in the employer’s favor, was not immediately appealable under Oregon procedure.

A trial court order determining the scope of the issues to be retried after reversal and remand is not immediately appealable, the Oregon Supreme Court has ruled. Thus, an employer that prevailed on two of three issues at trial, and then obtained a reversal from the court of appeals, could not appeal an order granting retrial of all three issues (Crosbie v. Asante, No. S071051 (Or. Sup. Ct. June 24, 2025)).

Whistleblower suit. A discharged nurse brought suit against her former employer, a hospital, alleging that her termination was in retaliation for her complaints about safety issues, including safety violations committed by other nurses. She asserted three statutory claims under Oregon law: (1) whistleblower retaliation; (2) unlawful retaliation; and (3) unlawful employment practice. The crux of these claims was that protected safety complaints had been a “substantial factor” in her termination.

At trial, the employee requested a “cat’s paw” instruction that would allow the jury to impute her fellow nurses’ bias against her to the employer for purposes of determining whether her termination was unlawful. Over the employer’s objection, the court instructed the jury that it could impute the coworkers’ bias to the employer if it found that the coworkers “influenced, affected or [were] involved in the adverse employment decision” against the employee. The instruction applied to all three claims.

Split verdict. The jury returned a split verdict, finding for the employer on the first and second claims and for the employee on the third. The court entered a general judgment against the employer in the amount awarded by the jury on the third claim. The employer then appealed, assigning error to the court’s giving a “cat’s paw” instruction. The employer’s briefing did not specify whether its appeal concerned only that portion of the judgment that was adverse to it. The employee did not cross-appeal from the judgment with respect to the two claims on which the employer prevailed.

Reversal and remand. The court of appeals determined that the trial court’s inclusion of the word “affected” in the jury instruction, without further clarification, was improper, and this error likely affected the jury’s verdict. The court’s opinion concluded with “Reversed and remanded on appeal[.]” The court did not specifically limit its decision to the claim on which the employee prevailed. Neither party sought clarification about the scope of the ruling.

Scope of retrial order. Back in the trial court, following the vacation of the general judgment, a dispute arose as to which of the employee’s claims should be retried. After briefing, the court issued an order granting a retrial of all three claims, explaining that the erroneous instruction had been given on each of them. The employer appealed that order, but the Appellate Commissioner determined that the order was not appealable because there was no longer a general judgment from which to appeal. The Commissioner issued an order dismissing the appeal for lack of jurisdiction, and the court of appeals denied reconsideration.

No appellate jurisdiction. The Oregon Supreme Court granted review, limited to the issue of “whether a trial court order determining the scope of the issues to be retried on remand is an order that is immediately appealable under ORS 19.205(3).” That statute permits appeal from an order “’made in the action after a general judgment is entered and that affects a substantial right, including an order granting a new trial.’” The court believed that resolution of the issue depended on the meaning of the statutory terms “after a general judgment” and “substantial right.”

As the court explained, a “general judgment” is a judgment that decides all requests for relief, except for those decided in a limited judgment, or that may be decided in a supplemental judgment. No dispute existed that the general judgment issued by the trial court in this case decided all of the employee’s requests for relief. However, once the court of appeals reversed and remanded, a general judgment no longer existed. That was so because, after the court of appeals reversed as to even one of the claims, that claim remained unresolved. It follows that, by definition, after reversal there no longer is a judgment entered by a court that decides all requests for relief, and, therefore, at that point the trial court order is not an order made “after a general judgment” for purposes of ORS 19.205(3). For that reason, the trial court’s order in this case was not immediately appealable under ORS 19.205(3), and thus the court of appeals lacked jurisdiction to hear the employer’s appeal.

For these reasons, the court affirmed the orders of the court of appeals.

The case is No. S071051.

Judge: Masih, A.

Attorneys: Andrew R. Wilson (Black, Chapman, Petersen & Stevens) for Denese Crosbie and Denese Crosbie RNFA, LLC. Sasha A. Petrova (Tonkon Torp LLP) for Asante and Asante Ashland Community Hospital, LLC.

Companies: Denese Crosbie RNFA, LLC; Asante; Asante Ashland Community Hospital, LLC

Cases: Procedure Whistleblowers Retaliation Discharge Safety OregonNews