FILED: July 17, 2002

M.M. KNEPPER
and J.J. KNEPPER,

Appellants,

v.

TIMOTHY BROWN, M.D.;
TIMOTHY M. BROWN, P.C.,
an Oregon professional corporation;
AMERICAN ACADEMY OF COSMETIC SURGERY
and AMERICAN SOCIETY OF LIPO-SUCTION SURGERY, INC.,
foreign corporations,

Defendants,

and

U.S. WEST DEX, INC.,
a foreign corporation,

Respondent.

Appeal from Circuit Court, Multnomah County.

Robert P. Jones, Judge.

Argued and submitted February 25, 2002.

Kathryn H. Clarke argued the cause for appellants. With her on the briefs was Gregory A. Smith.

Michael H. Simon argued the cause for respondent. With him on the brief were Stephen M. Feldman and Perkins Coie LLP.

Before Haselton, Presiding Judge, and Armstrong and Brewer, Judges.

HASELTON, P. J.

Judgment in favor of defendant US West Dex, Inc., against plaintiff M.M. Knepper's fraud and conspiracy to commit fraud claims reversed and remanded; otherwise affirmed.

HASELTON, P. J.

Plaintiff, M.M. Knepper, appeals from the trial court's entry of an ORCP 67 B judgment after the court granted defendant US West Dex's motion for summary judgment against plaintiff's claims of fraud and conspiracy to commit fraud. (1) The gravamen of those claims is that defendant culpably published a Yellow Pages advertisement that misrepresented a physician's qualifications to perform liposuction procedures; (2) that plaintiff relied on that misrepresentation in retaining that physician; and that plaintiff was injured when the physician negligently performed liposuction on her. As described below, we conclude that summary judgment was improper on any of the three alternative grounds defendant advanced before the trial court. Consequently, we reverse and remand.

Viewed in the light most favorable to plaintiff as the nonmoving party, ORCP 47 C, the record discloses the following material facts. Defendant US West Dex is the publisher of Yellow Pages telephone directories, which include listings and advertisements for professional services, including medical services. The "Practice Guide Section" lists and groups physicians according to specialities. For example, there are separate headings and groupings for dermatology and for surgery, and the surgery category is, in turn, divided into 18 subspecialities, including "Surgery, Plastic & Reconstructive." Every page of the Yellow Pages practice guide of doctors "Listed by Practice" includes the following notation:

"For your convenience, the following doctors have chosen to list by type of medical practice. For information concerning physicians and/or qualifications, call the proper state agency or your local medical or osteopathic association."

Dr. Timothy Brown was a licensed physician and was board certified in dermatology and dermatologic surgery, but not in plastic and reconstructive surgery. Brown received training through the American Academy of Cosmetic Surgery in performing liposuction. (3) Before November 1996, Brown had performed liposuction procedures and had advertised in the Yellow Pages under the "dermatology" subcategory of the "Physicians & Surgeons, MD & DO" listing.

In late 1996, Brown told one of defendant's sales representatives, Mueller, that he was performing liposuction procedures. Mueller responded that, to increase his clientele, Brown should not only continue his advertisement under the "dermatology" subcategory but should also advertise under the "Surgery, Plastic & Reconstructive" subcategory. Mueller told Brown that the latter was the "best heading," because that is where potential liposuction patients would be most likely to look.

Brown's advertisement under the "Surgery, Plastic & Reconstructive" heading included the unamplified notation, "Board Certified"--that is, the ad did not expressly identify the area of certification. (4) Brown and his assistant, Sara Newman, discussed including that notation with Mueller because they believed that it would enhance Brown's appeal. From that discussion, Mueller knew, before the ad's publication, that Brown was not board certified in plastic and reconstructive surgery. Ultimately, defendant published advertisements for Brown under the "Surgery, Plastic & Reconstructive" heading in both the 1996-97 and 1997-98 Yellow Pages.

Plaintiff's interest in liposuction began sometime in 1995, when she saw a television program describing the procedure and then started reading magazine articles on the subject. She subsequently consulted a physician whom she had seen on local television describing liposuction, but she decided not have him perform the surgery both because she wanted to research the subject more and to consult with other physicians and also because one of her friends was unhappy with the results of liposuction performed by that physician.

In January 1997, plaintiff consulted the Yellow Pages under the heading of "Surgery, Plastic & Reconstructive" and saw Brown's advertisement. Plaintiff did not, however, contact Brown at that time. Thereafter in 1997, plaintiff consulted with three other physicians or their staff about liposuction. In November or December 1997, plaintiff attended a women's health fair where Brown had a booth and spoke with either Brown or his staff. At that time, plaintiff received materials describing Brown's experience, training, competence, and qualifications to perform liposuction.

After the health fair, plaintiff scheduled a consultation with Brown. In doing so, plaintiff relied on the contents of the Yellow Pages advertisement and materials from the health fair. Plaintiff would not have met with Brown but for her belief that he was board certified in plastic and reconstructive surgery. During the ensuing consultation, Brown made representations that confirmed plaintiff's understanding that he was board certified in plastic surgery. Brown also told plaintiff that he had performed "hundreds" of procedures similar to the one that she was considering.

Plaintiff retained Brown. He negligently performed tumescent liposuction and follow-up procedures, causing plaintiff serious physical and psychological injuries.

In 1999, plaintiff brought this action. Plaintiff's operative third amended complaint alleged in pertinent part:

"Defendants [US West] and Brown conspired to mutually profit from Yellow Pages advertising by holding out defendant Brown as having education, training, experience, qualifications, and Board certification that they each knew, or defendant [US West] should have known, that defendant Brown did not have. Defendant Brown agreed to pay for, and defendant [US West] agreed to place the Yellow Page advertisement under physicians: 'plastic and reconstructive surgery' stating that defendant Brown was 'Board certified.' Such statement willfully and intentionally implied that defendant Brown was Board certified in plastic and reconstructive surgery. Defendant [US West], by virtue of its prior dealings with defendant Brown, knew or should have known that this representation was material, false, and misleading."

The gravamen of plaintiff's complaint against defendant is that its placement of Brown's advertisement in the "Plastic and Reconstructive" surgeons section of the Yellow Pages, along with the text in the advertisement indicating that Brown was "Board Certified," misled her to believe that Brown was board certified in plastic and reconstructive surgery. Because plaintiff was interested in undergoing liposuction only under the care of a plastic surgeon, her theory of causation was that, but for the misleading placement and text of Brown's advertisement, she never would have consulted him and, thus, would never have undergone the surgery that led to her injuries.

Defendant moved for summary judgment against plaintiff's fraud claims (5) on three alternative grounds: (1) Because defendant had included a "disclaimer" on each page of the Yellow Pages Professional Practice Guide, (6) plaintiff had no right to rely--at least not vis-à-vis defendant--on any representations in Brown's ad as to his professional qualifications, including board certification. (2) Plaintiff did not, in fact, rely on the Yellow Pages advertisement in concluding that Brown was a board certified plastic surgeon. In support of that argument, defendant presented deposition testimony from plaintiff that showed, in defendant's view, that plaintiff did not rely on the "Board Certified" text in the Yellow Pages advertisement. (3) There was not a sufficient causal link between the alleged misrepresentation and the alleged injury that resulted from Brown's performance of the liposuction procedures on plaintiff. In particular, defendant argued that its publication of the ad merely "facilitated" plaintiff's alleged injuries in a "but-for" sense, but that, under Buchler v. Oregon Corrections Div., 316 Or 499, 853 P2d 798 (1993), Brown's alleged intervening malpractice precluded any fraud-based liability for plaintiff's alleged injuries. (7)

In response, plaintiff disputed defendant's characterization of the significance and effect of the "disclaimer"--and asserted that the determination of whether she relied, or was entitled to rely, on the advertisement notwithstanding the "disclaimer" presented factual issues. In support of that contention, plaintiff proffered her own affidavit, which stated, in part: "I relied upon the yellow page ad in the Vancouver US West Dex yellow pages. I believed, based upon the location and content of Dr. Brown's ad, that Dr. Brown was a board certified plastic surgeon." Plaintiff further asserted that the sufficiency of the causal link between the alleged fraud and the alleged damage presented a question of fact.

In reply, defendant asserted that plaintiff's affidavit in opposition to summary judgment could not create a genuine issue of material fact as to reliance because plaintiff's statements in that affidavit contradicted her earlier sworn statements and did so without offering any plausible justification or explanation for that contradiction. As support for that position, defendant relied on Henderson-Rubio v. The May Dept. Stores, 53 Or App 575, 632 P2d 1289 (1981), and Stoeger v. Burlington Northern Railroad Co., 323 Or 569, 919 P2d 39 (1996). With respect to causation, defendant acknowledged that causation issues are "usually for the jury," but reiterated its reliance on Buchler as the controlling exception to that proposition.

The trial court, without explanation, entered judgment in favor of defendant pursuant to ORCP 67 B. Plaintiff appeals, arguing that defendant was not entitled to summary judgment on any of the three alternative grounds it raised in the trial court. (8) Defendant responds that any of those three grounds is independently sufficient to sustain the trial court's ruling. (9)

As explained below, we conclude that none of defendant's three alternative bases supports summary judgment. Accordingly, we reverse and remand for further proceedings.

We turn first to plaintiff's argument concerning the "disclaimer," the text of which is set out above. The parties agree that, to establish fraud, a plaintiff must prove, inter alia, that the defendant intended to induce the plaintiff to act in reliance on the misrepresentation and that the plaintiff justifiably relied on the misrepresentation. See generally In re Brown, 326 Or 582, 595, 956 P2d 188 (1998) (summarizing elements). The gist of defendant's argument concerning the "disclaimer" is that, because every page of the Yellow Pages practice guide included that language, plaintiff had no right to rely on the "Board Certified" representation in Brown's advertisement, i.e., that any such reliance was not justifiable.

Plaintiff responds that the language of defendant's purported disclaimer does not, in fact, disclaim anything: "[I]t merely points out one source of further information." Rather, plaintiff asserts:

"The language of the disclaimer is so carefully hedged, so artfully crafted (so as not to offend the advertising doctors by questioning their veracity, nor to disturb the confidence of the trusting public), that it disclaims nothing * * *. [I]t mumbles its message in a whisper, hoping that no one will hear."

Finally, and in all events, plaintiff contends that the effect of the "disclaimer" is a factual question for the jury.

We agree with plaintiff that the mere existence of the disclaimer does not, as a matter of law, compel a conclusion that a person may not reasonably rely on a representation in a Yellow Pages advertisement. Rather, the effect of the "disclaimer" with reference to justifiable reliance is a jury question. McCathern v. Toyota Motor Corp., 160 Or App 201, 227-28, 985 P2d 804 (1999), aff'd 332 Or 59, 23 P3d 320 (2001), is analogous. In McCathern, we rejected an argument by a defendant in a products liability action that the existence of a warning on the visor of an automobile demonstrated that no jury question could exist as to whether an ordinary consumer could expect the vehicle not to roll over following abrupt steering and sharp turns. We stated:

"Toyota's marketing representations of the 1994 4Runner making sharp turns and maneuvers justified a reasonable expectation that the vehicle could perform such maneuvers. The question of whether, or to what extent, the visor warning--which, after all, was yet another representation by Toyota--effectively subverted or negated such an expectation in the mind of an ordinary consumer was a matter for the jury to decide." 160 Or App at 228 (emphasis added).

The same rationale applies here. As plaintiff notes, although the Yellow Pages included the "disclaimer" quoted above, they also contained statements that the Yellow Pages provided "the most complete information about all the businesses and stores in your area," and that the Yellow Pages "mak[e] it easy for you to select the one who can serve you the best." Such statements can certainly be viewed as promoting users' reliance on the contents of Yellow Pages advertisements. When allegedly "disclaiming" language is as indefinite as that at issue here, it must be viewed in the context of other representations made by defendant, and its meaning and effect are not susceptible to summary judgment. Cf. Mobley v. Mannhein Services Corp., 133 Or App 89, 92, 889 P2d 1342, rev den 321 Or 47 (1995) (in a breach of contract action, summary judgment for defendant was appropriate only because the disclaimer at issue was unambiguous). (10)

We proceed to defendant's second alternative argument--that the summary judgment record discloses that plaintiff did not, in fact, rely on the Yellow Pages ad's representations about Brown's credentials. Before directly addressing the merits of defendant's position, we must first set the procedural stage.

Plaintiff's original complaint, filed in March 1999, named only Brown as a defendant. In her first amended complaint, filed in April 1999, plaintiff added as a defendant the American Academy of Cosmetic Surgery (AACS), alleging in pertinent part that AACS had falsely implied that its members had certain qualifications and skills, thus misleading patients into believing that its members were as qualified as plastic surgeons to perform cosmetic surgery.

In August 1999, plaintiff was deposed by Brown's counsel and, in that context, gave testimony in which she asserted that she had consulted the Yellow Pages looking for cosmetic surgeons. She did not recall whether all of the doctors she consulted were listed as cosmetic surgeons or as plastic and reconstructive surgeons. The following exchange took place:

"Q: And you can't recall what Dr. Brown was listed as, can you?

"A: I can recall that he was under the heading--

"Q: I'm not talking about the heading."

The parties then debated whether plaintiff should look at the advertisement to refresh her recollection, and did not return to the subject of headings. Plaintiff did not refresh her recollection by looking at the advertisement. When plaintiff was asked about the contents of Brown's advertisement, the following exchange took place:

"A: New Image Cosmetic Center or Surgery or--that was his ad.

"Q: That was his ad?

"A: I believe.

"Q: So what you remember from Dr. Brown's ad is something that says New Image Cosmetic Center?

"A: Yes.

"Q: Can you remember anything else that it said in Dr. Brown's ad?

"A: The phone number.

"Q: I mean, anything else describing his practice?

"A: I can't remember." (11)

In September 1999, plaintiff filed her second amended complaint. That complaint added defendant US West Dex as a defendant and also added new allegations against AACS--specifically that AACS had provided brochures to Brown for distribution to potential patients that contained false and misleading information as to the qualifications of AACS members.

In November 1999, AACS moved to dismiss for lack of personal jurisdiction on the ground that it did not have minimum contacts with the State of Oregon. In support of its motion, AACS provided deposition testimony from Brown that he had never obtained or made available to patients any brochures published by AACS. In response, in December 2000, plaintiff submitted an affidavit asserting that Brown had provided her with a brochure published by the AACS and further stating:

"In deciding to allow Dr. Brown to perform liposuction surgery on my person, I read and relied upon the contents of the brochures published by Dr. Brown and by the American Academy of Cosmetic Surgery, as well as by representations made by Dr. Brown and the American Academy of Cosmetic Surgery as to Dr. Brown's experience, training, competence, and qualifications in plastic surgery.

"In particular, and in part, I relied upon the representations contained within the above-referenced brochure, which included representations that Dr. Brown had undergone at least four years residency training in plastic and/or cosmetic surgical procedures, as well as a number of other representations and writings." (12)

In February 2000, defendant filed the motion for summary judgment that underlies this appeal. In support of that motion, defendant asserted that plaintiff's August 1999 deposition testimony and December 1999 affidavit demonstrated that plaintiff did not, in fact, rely on the "Board Certified" language in Brown's advertisement in the Yellow Pages. Defendant pointed particularly to plaintiff's statements about what she did rely on and her statements that she remembered the name of Brown's practice and his telephone number from the advertisement but nothing else describing his practice. Defendant also presented evidence that, when plaintiff first consulted Brown, she listed her referral source as a "Women's Show" rather than the Yellow Pages. In opposing summary judgment, plaintiff submitted an affidavit that stated,

"Dr. Brown's ad, placed under the heading of 'Physicians and Surgeons, Plastic and Reconstructive,' stated that Dr. Brown was board certified. Based upon the location and content of Dr. Brown's ad, I reasonably believed that Dr. Brown was a board certified plastic surgeon.

"* * * * *

"As a result of my reliance on the ad for Dr. Brown's liposuction practice, published by US West DEX, as well as my reliance on the brochures I had been provided by Dr. Brown, I scheduled an appointment to be evaluated by Dr. Brown. Had Dr. Brown's yellow page indicated the true nature of his board certification, i.e. dermatology, I would not have scheduled this initial consultation with Dr. Brown. But for the content and location of Dr. Brown's yellow page ad, Dr. Brown would not have been provided with further opportunity to mislead me as to his qualifications.

"* * * * *

"In making the decision to initially contact Dr. Brown for the consultation, I relied upon the yellow page ad in the Vancouver US Dex yellow pages. I believed, based upon the location and content of Dr. Brown's ad, that Dr. Brown was a board certified plastic surgeon. In deciding to have Dr. Brown perform lipo-suction surgery on me, I relied upon the yellow page ad, the brochures handed to me by Dr. Brown and/or his agents, the video shown to me by Dr. Brown, the photo album shown to me by Dr. Brown, and Dr. Brown's own statements as to his experience in the number of procedures he had performed."

As noted above, in reply, defendant invoked Henderson-Rubio for the proposition that a plaintiff may not create a "genuine issue of material fact" for purposes of defeating summary judgment by contradicting her own previous statements. Plaintiff asserted that the statements in her later affidavit were not so clearly or blatantly inconsistent with her earlier statements as to fall within the rule of Henderson-Rubio. On appeal, the parties reprise those arguments. Thus, Henderson-Rubio is the key, and we begin with that case.

In Henderson-Rubio, the plaintiff sought to recover unpaid vacation and compensatory-time wages from his former employer. He stated in a deposition that he was never informed by his employer of any rules governing compensatory time and indicated repeatedly that the basis of his claim was his understanding of federal wage laws. 53 Or App at 578-79. On summary judgment, the employer provided evidence that the plaintiff was a salaried employee and argued that the plaintiff had no contractual basis for his claim for recovery of compensatory time wages. In response, the plaintiff filed an affidavit that stated that the employer's practice was to give compensatory time off for overtime worked during the period in question. Id. at 579. We framed the issue as follows:

"[P]laintiff admits in his deposition that the basis for his claim of overtime compensation is his own understanding of the law. Thus, plaintiff defeats his own claim with respect to compensatory time. He then contradicts this statement in his affidavit and contends that his claim is based on store policy. Defendant denies that such a policy exists; therefore, a factual dispute exists. It exists, however, only because plaintiff himself has created an issue by contradicting his earlier statement. Is a contradiction created by the opposing party sufficient to raise a genuine issue of material fact?" Id. at 385.

In deciding that issue, we considered authority from several federal courts. In particular, we contrasted Perma Research & Development Co. v. Singer Co., 410 F2d 572 (2nd Cir 1969), with Kennett-Murray Corp. v. Bone, 622 F2d 887 (5th Cir 1980). In Perma Research, the plaintiff was repeatedly asked during his deposition to specify the basis of his claim but "made no reference to a conversation between him and the defendant which supported his claim of fraud until he submitted an affidavit opposing defendant's motion for summary judgment." Henderson-Rubio, 53 Or App at 584, citing Perma Research & Development Co., 410 F2d at 578. In Kennett-Murray, on the other hand, an affidavit in opposition to summary judgment was not "inherently inconsistent" with earlier deposition testimony and did not purport to raise a new matter but, rather, explained aspects of defendant's earlier deposition testimony, indicating that he had been confused during the deposition, and explaining in the affidavit the source of his confusion. 53 Or App at 585-85, citing Kennett-Murray Corp., 662 F2d at 893.

Ultimately, we adopted the "general rule" as stated in Kennett-Murray Corp. 53 Or App at 585. However, we concluded that the plaintiff's affidavit in Henderson-Rubio did not raise a genuine issue of material fact because that affidavit did not attempt to explain or add to his deposition testimony or assert that the plaintiff was confused at the time of his deposition. Id. We thus concluded that, because there was a direct conflict between the deposition testimony and the affidavit and no attempt to explain the inconsistency, the affidavit did not raise any genuine issue of material fact. Id. In so holding, we cautioned that our decision was limited to those circumstances in which "the two statements are clearly inconsistent and no attempt is made to explain the inconsistency." Id. at 585 (emphasis added).

Taal v. Union Pacific Railroad, 106 Or App 488, 490, 809 P2d 104 (1991), is also instructive--particularly in contrast to Henderson-Rubio. There, the plaintiff initially gave the employer's claims agent a recorded statement stating that he had noticed the hearing problem that was the subject of the FELA action "in the middle of 1985." If that statement were correct, the plaintiff's action would have been time-barred. Thereafter, in a deposition, the plaintiff testified that his earlier recollection had been incorrect and that, after looking at his doctor's statement, he realized that he saw the doctor about the hearing problem in November of 1985, and recalled that he had seen the doctor several days after he had noticed the problem. 106 Or App at 490-92. The defendant moved for summary judgment on limitations grounds, arguing that the plaintiff could not create a genuine issue of material fact by using his deposition to contradict his earlier statement. The trial court agreed and granted summary judgment for the defendant.

On appeal, we reversed. We noted that the Henderson-Rubio rule was limited to cases "where the two statements are clearly inconsistent and no attempt is made to explain the inconsistency." Id. at 493, quoting Henderson-Rubio, 53 Or App at 585 n 6. In Taal, by comparison, the plaintiff did explain that his earlier recollection was wrong and that his memory was refreshed by seeing his doctor's chart notes. 106 Or App at 493. Thus, we concluded that there was a genuine issue of material fact that could not be resolved on summary judgment. Id. at 494-95.

Finally, the Supreme Court's analysis in Stoeger also bears on our analysis. In Stoeger, the plaintiff, a railroad worker, was allegedly injured when he attempted to throw a track switch. The plaintiff subsequently brought an action under the FELA, alleging that the switch was defective in that it stuck, or hung up, when he attempted to throw it. On the day of the alleged injury, the plaintiff filled out a report form concerning his injury and, in response to a question about "defects involved," checked a box marked "none." Stoeger, 323 Or at 573. Three weeks after the accident, the plaintiff participated in an unsworn interview with a railroad inspector in which he said, "I reached down to pull the handle they had some gravel there I guess. I must have slipped. I really honestly really don't know how exactly it did happen." Id. When asked if there was "any abnormal resistance to the switch," the plaintiff replied: "Honestly I don't remember. I didn't think there was." Id. at 574. During the interview, the plaintiff also stated that the switch in question "isn't the easiest switch to throw and it's not the hardest," and that he "had to put a little effort into it." Id.

The employer subsequently moved for summary judgment based, in part, on the plaintiff's statements that he did not believe that the switch was defective or abnormally resistant. The plaintiff opposed summary judgment by submitting an affidavit in which he stated, "I had lifted the handle part of that way up when it suddenly hung up and became stiff and hard to throw. I felt pain in my back when the switch handle hung up." Id. at 575. The trial court entered summary judgment for the defendant, and we affirmed without opinion. Stoeger v. Burlington Northern Railroad Co., 132 Or App 552, 889 P2d 391 (1995).

The Supreme Court reversed. On review, the parties framed the question presented in terms of the rule we announced in Henderson-Rubio:

"[W]here [on summary judgment] the nonmoving party makes a statement that absolves the other party of liability, a later inconsistent statement does not create a genuine issue of material fact unless the nonmoving party provides an explanation for the inconsistency or asserts confusion." Stoeger, 323 Or at 577.

The Supreme Court, however, was unable to resolve whether that formulation was correct because the six members of the court were evenly split on that question. Id. at 577. (13) Nevertheless, the court unanimously agreed that, regardless of whether Henderson-Rubio was a correct statement of the law, a genuine issue of material fact existed in that case. Id. In so holding, the court noted that the plaintiff's affidavit explained that he did not consider a switch that was abnormally resistant to be "defective" because he was, ultimately, able to throw the switch. Id. at 578. Thus, the court concluded, "even if plaintiff were required to provide some explanation of the inconsistency between his earlier statement and his affidavit, he provided it," giving rise to a genuine issue of material fact. Id. (14)

Henderson-Rubio continues to be the law of our court. Under the rule of that case, we must first determine if there was, in fact, a "clear inconsistency" between plaintiff's earlier statements--her August 1999 deposition testimony and her December 1999 affidavit--and her February 2000 affidavit in opposition to summary judgment. 53 Or App at 588 n 5. If, but only if, there was such an "inherent" inconsistency, Simons v. City of Portland, 132 Or App 74, 84 n 3, 887 P2d 824 (1994), would we then proceed to consider whether plaintiff's affidavit discloses the requisite justification or explanation.

We first turn to the question of whether plaintiff's earlier affidavit and deposition and her affidavit in opposition to summary judgment are, in fact, "clearly inconsistent." We find no contradiction between plaintiff's later affidavit and her having cited her source of referral to Brown as a "Women's Show." Plaintiff's own complaint avers that, between the time that she consulted the Yellow Pages and her consultation with Brown, she received materials from Brown or his staff at a health fair. That plaintiff considered her "referral source" to be the latter rather than the former does not contradict her statement that the placement and content of the Yellow Pages advertisement led her to believe that Brown was a board certified plastic surgeon.

Defendant also argues that plaintiff's statement in her December 1999 affidavit that she relied on AACS's brochures as well as representations made by Brown in deciding to have liposuction surgery contradicts her later affidavit. We disagree, for several reasons. First, plaintiff's December 1999 affidavit must be viewed in the context in which it was made, viz., in opposition to AACS's motion to dismiss. The only legal issue raised by that motion was whether the Oregon courts had jurisdiction over AACS, and any statements by plaintiff concerning her reliance on the Yellow Pages would be entirely irrelevant to that legal issue. Given the legal issue, plaintiff would have had no reason to mention the Yellow Pages advertisement in that affidavit. Further, that affidavit asserted only that, "in part, I relied upon the representations contained within the above-referenced brochure[.]" (Emphasis added.) That statement left open the possibility that plaintiff had relied on things other than that brochure in deciding to have Brown perform liposuction surgery. Thus, there was no clear inconsistency between plaintiff's December 1999 affidavit and her statements in her affidavit in opposition to summary judgment.

Defendant also argues that plaintiff's February 2000 affidavit contradicts her August 1999 deposition testimony. In particular, defendant asserts that, while plaintiff testified in her deposition that she recalled only the name of Brown's practice and telephone number as being included in his Yellow Pages advertisement, her later affidavit states that she relied on additional information in the ad--including, as especially pertinent to her fraud claims, the location (under the "Surgery, Plastic & Reconstructive" listing) and contents ("Board Certified") of that ad--in concluding that Brown was a board-certified plastic surgeon. Thus, defendant contends, there is a clear and self-serving inconsistency between plaintiff's prior general, even vague, recollection of the Yellow Pages ad, and her far more precise recounting of the ad and her contemporaneous reliance, which she expressed for the first time in opposing summary judgment.

We first reject defendant's contention that there is a direct conflict between plaintiff's deposition testimony and her affidavit averments as to the ad's location. As noted above, ____ Or App at ___(slip op at 11), during her deposition plaintiff attempted to state under what heading Brown was listed in the Yellow Pages--but Brown's counsel, who was conducting the examination, cut off her response, saying, "I'm not talking about the heading."

Nor do we find any clear inconsistency between plaintiff's failure to recall and mention the ad's "Board Certified" notation during her deposition and her subsequent recounting of her contemporaneous reliance on that statement. Again, the context and content of the deposition colloquy is illuminating. In particular, defendant's claim of a clear contradiction ultimately rests on an "I can't remember" response to an open-ended inquiry:

"A: New Image Cosmetic Center or Surgery or--that was his ad.

"Q: That was his ad?

"A: I believe.

"Q: So what you remember from Dr. Brown's ad is something that says New Image Cosmetic Center?

"A: Yes.

"Q: Can you remember anything else that it said in Dr. Brown's ad?

"A: The phone number.

"Q: I mean, anything else describing his practice?

"A: I can't remember."

Two aspects of that colloquy are especially striking. First, plaintiff was never asked specifically about her recollection of the "Board Certified" representation in the ad--indeed, there was no reference at all to that representation. Rather, the question was general and open-ended. Second, in a related sense, plaintiff did not deny noticing and relying on the "Board Certified" representation. Rather, when asked whether, at the time of the deposition, she could recall "anything else regarding his practice," she replied, "I can't remember."

With plaintiff's deposition testimony so placed in proper perspective, we emphasize the narrow scope of the question before us: This is not a case of a party originally swearing that "the light was green" and then later testifying that "the light was red." Nor is it even a case of a party who, when originally asked under oath "What color was the light?" responds, "I can't recall"--and who then later testifies, "the light was red." Rather, it is a case of a party who, when asked, "Can you remember anything else about the accident?" responds, "I can't recall"--and who then later testifies, "The light was red."

We conclude that an "I can't recall" response to an open-ended, "Is there anything else you remember?" question cannot be the predicate of a "clear inconsistency" under Henderson-Rubio. The requirement that the original and subsequent statement be "clearly inconsistent" necessarily presumes that both statements are "clear." An indefinite response to a catchall question is hardly clear.

We note, moreover, that none of our precedents has so extended Henderson-Rubio. Rather, Henderson-Rubio, Taal, and Stoeger all involved explicit contradictions of the "x" versus "not x" sort. See also Gibson v. Pacific Summa Capital, Inc., 163 Or App 321, 326, 987 P2d 1240 (1999), rev den 329 Or 589 (2000) (describing clear contradiction between the plaintiff's deposition testimony that he filed claim on behalf of all shareholders of a corporation and the plaintiff's affidavit in opposition to summary judgment stating that he had filed the claim on his own behalf). We decline defendant's invitation to dramatically expand Henderson-Rubio's sweep. Consequently, we conclude that plaintiff's February 2000 affidavit raised triable issues of material fact as to her reliance on the "Board Certified" representation and her consequent belief that Brown was board certified in plastic and reconstructive surgery.

We turn finally to the third alternative basis for summary judgment: Defendant argues that summary judgment is proper because plaintiff, as a matter of law, cannot establish the requisite causation. The parties agree that, in order to prevail on a claim of fraudulent misrepresentation, a party must demonstrate that the misrepresentation is a "substantial factor" in producing the harm. See generally Criqui, 41 Or App 511. The parties, however, take differing positions about how "substantial factor" causation is to be assessed in this context. Defendant posits that, as a matter of law, plaintiff cannot show "substantial factor" causation because plaintiff had no evidence that the "Board Certified" language in the Yellow Pages ad caused Brown to commit medical malpractice. Plaintiff asserts that defendant--and the Criqui case on which defendant relies--blur the distinction between causation and foreseeability.

Before turning to the specifics of the parties' arguments on causation, we clarify the meaning of "substantial factor" in the causation context. We agree with plaintiff that Criqui cannot be read expansively to require proof that the misrepresentation in the ad caused Brown to commit medical malpractice. In Criqui, the plaintiff purchased a distributorship based on a misrepresentation that the marketing program for the product was legal. 41 Or App at 513-14. He operated the business at a loss for several months, then sold it and sued the defendants for fraud. While some of the plaintiff's losses were recoverable, we held that the plaintiff's net operating losses were not:

"There was no evidence that the misrepresented matters on which plaintiff relied in any way caused the income of the business to be less or its expenses to be greater during the period plaintiff operated it. There may have been evidence from which the jury could have inferred that plaintiff would not have purchased the business had it not been for the representations, and he testified that he did rely on the representations. Such 'but for' causation, however, is not sufficient by itself to establish the link between the wrong and the damage claimed. See Simpson v. Sisters of Charity of Providence, 284 Or 547, 588 P2d 4 (1978). If it were, a person who had been induced to enter into any business by a fraudulent misrepresentation could recover for any loss he might thereafter suffer in the business, regardless of whether there was any other relationship between the loss and the misrepresentation. For example, a person who bought a restaurant (real property, equipment and goodwill) which was falsely represented to be free from termites could experience a net operating loss because he served bad food and still recover that loss in a fraud action based on the misrepresentation. While there is no sympathy for one who commits fraud, such attenuated causation is not a sufficient basis for holding one responsible to make up every loss that would not have occurred had there been no fraud." 41 Or App at 517 (footnote omitted).

We went on to quote a further example of attenuated "but for" causation insufficient to establish damages for fraud, quoting from William L. Prosser, Law of Torts,