Dortch v. AH Robins Co., Inc.

650 P.2d 1046, 59 Or. App. 310, 1982 Ore. App. LEXIS 3221

• Court: Court of Appeals of Oregon
• Decided: September 15, 1982
• Docket: A8009-05162, CA A21613
• Status: Published

Opinions

WARREN, J.

Plaintiff brought this product liability action seeking damages for personal injuries allegedly caused by a Daikon Shield intrauterine birth control device, manufactured and sold by defendant. Defendant moved for judgment on the pleadings under ORCP 2 IB, on the ground that ORS 30.905, the applicable statute of limitations, barred the claim. The trial court allowed the motion and entered judgment for defendant. Plaintiff appeals. We affirm.

The facts before us are those alleged in the complaint. On or about May 1, 1971, a Daikon Shield was inserted in plaintiff for the purpose of birth control. From 1972 through 1976, she suffered chronic intrauterine infections causing a build-up of scar tissue in her left fallopian tube. This condition resulted in a tubal pregnancy, requiring an ectopic tubal abortion December 1, 1977. On December 4, 1977, plaintiff underwent a tubal ligation to prevent further tubal pregnancies. As a consequence of this procedure, she can no longer bear children.

Plaintiff alleged that these injuries were caused by the Daikon Shield and that this device “was unreasonably dangerous as a product * * * due to its basic design * * She further alleged that she “did not learn, nor did she have reason to learn, of the relationship between the defective nature of the [product] and her [physical injury] * * * until * * * about May 1, 1980.” The complaint was filed September 11, 1980; i.e., the action was commenced approximately nine years and four months from the date the Daikon Shield was purchased and two years and nine months from the date of the tubal ligation.¹

The parties agree that the applicable statute of limitations is ORS 30.905, which provides as follows:

“(1) Notwithstanding ORS 12.115 or 12.140 and except as provided in subsection (2) of this section, a product liability civil action shall be commenced not later than eight years after the date on which the product was first purchased for use or consumption.

“(2) A product liability civil action shall be commenced not later than two years after the date on which the death, injury or damage complained of occurs.”

Plaintiff contends that this statute does not bar the action, relying on our holding in Baird v. Electro Mart, 47 Or App 565, 615 P2d 335 (1980), that a product liability action is not barred by ORS 30.905(1), although commenced more than eight years after the date of purchase, as in this case, so long as the following requirements are met: (1) the injuries were sustained within eight years of the product’s purchase; (2) the action was brought within ten years of the product’s purchase; and (3) the requirements of ORS 30.905(2) are met.

Plaintiff does not dispute that her action would be barred if the two-year limitation of ORS 30.905(2) began to run on December 4, 1977, the date of the tubal ligation, which was the last injury alleged to have been caused by the Daikon Shield. She contends, however, that ORS 30.905(2) does not bar the action, because the “discovery doctrine” recognized in Schiele v. Hobart Corporation, 284 Or 483, 587 P2d 1010 (1978), delays the accrual of a cause of action in a product liability case until the date on which the plaintiff discovered or should have discovered that defendant’s product had caused her injuries; and that “this extension is subject only to the ten-year period of ultimate repose” provided by ORS 30.905.

Defendant responds that the filing of this action complies with neither subsection (1) nor subsection (2) of ORS 30.905, because the action was filed more than eight years from the date of purchase and more than two years from the date of injury. Defendant argues that the language and the legislative history of ORS 30.905(2) preclude recognition of a discovery rule,² but that, even if a discovery rule were to be applied, this claim would still be barred, because the “injury” would not have occurred until plaintiff learned of its cause in May, 1980, nine years after the date of purchase. In other words, defendant contends that, if a discovery rule is applied, the date of the injury’s occurrence should be interpreted to mean the date of discovery, and that our holding in Baird v. Electro Mart, supra, requires that such discovery take place within eight years of the date of purchase, with the result that this action is barred.

We conclude that, although Schiele u. Hobart Corporation, supra, was decided under another statute of limitations, a discovery rule does apply to product liability actions. We conclude, however, the discovery rule does not operate to extend the eight-year statute as will be discussed below.

We agree with plaintiff that, notwithstanding the provisions of ORS 30.905(1), a product liability action filed more than eight years after the date of purchase is not necessarily barred by ORS 30.905. On its face, ORS 30.905 appears to require that product liability actions be commenced, i.e. filed, no later than eight years after the date of purchase and within that period, no more than two years after the occurrence of the injury. Under such construction, a plaintiff injured by a product on the last day of the sixth year would have two years to file a complaint. A plaintiff injured after that time, but still within eight years, would have less time, but in no event more than eight years after the purchase in which to file a complaint. That construction was rejected in Baird v. Electro Mart, supra.

In Baird, we decided that, despite the legislative language, it was clear that the drafters of ORS 30.905 intended a result consistent with a policy to limit a manufacturer’s liability exposure to a ten-year period and to afford all plaintiffs injured within that period a two-year period of time in which to commence an action. In Baird we stated:

“* * * The committee determined, as. a policy matter, that it wished to limit the manufacturer’s exposure to a ten-year period. After extensive discussion the committee adopted the following motion:

‘“THE QUESTION WAS CALLED ON REP. RUTHERFORD’S MOTION TO REDUCE THE PERIOD OF ULTIMATE REPOSE TO 8 YEARS FROM THE DATE OF FIRST PURCHASE FOR USE OR CONSUMPTION AND TO PROVIDE A 2 YEAR LIMITATION FOR OCCURRENCE OR LIABILITY THAT OCCURRED IN THE 8 YEAR PERIOD.’ Minutes, House Committee on Judiciary, May 16, 1977.

“It is clear that the committee intended that if an injury occurred within the eight-year period the injured party would have two years from the date of the injury to commence the action. * * *

a* * * * *

“It is clear from the discussions of House Bill 3039, which became ORS 30.905, what the legislative objective was. The legislature wanted to enact a ten-year period of ultimate repose for product liability actions comparable to the period set out in ORS 12.115. The committee discussions indicate this objective was to be accomplished by providing that if an injury occurred within eight years of the date the product was first purchased, the injured party had an additional two-year period following the injury to bring the action. That two-year period was characterized as a ‘grace period’ by the committee. * * * Accordingly, we hold that ORS 30.905 allows commencement of an action for injury based on product liability within two years of the injury complained of if the injury occurred within eight years of the first purchase of the product for use or consumption. * * *” 47 Or App at 570, 572.

In Baird, the injury and the plaintiffs discovery of the defendant’s causal connection with the injury were simultaneous. We therefore had no occasion to define or construe the term “injury” or to discuss the significance of that term in the context of a case in which a physical injury occurs within eight years of the date of purchase, but defendant’s causal involvement is not discovered until after that period. In the context of Baird, the “injury” referred to was an actionable injury, i.e., its causal connection with the defendant was known. The key to the resolution of this case does not turn, as plaintiff claims, upon whether a discovery rule applies to product liability actions. It turns instead upon our determination of when an injury occurs for the purposes of analyzing statutes of limitation.

In determining when the injury occurred, we start with the proposition that ordinarily the terms of a statute are construed in accordance with their plain or common meaning. See Satterfield v. Satterfield, 292 Or 780, 643 P2d 336 (1982); Perez v. State Farm Mutual Ins. Co., 289 Or 295, 299, 613 P2d 32 (1980). However, if the terms of the statute have a well-defined legal meaning, the court should give the terms that meaning. State v. Dumond, 270 Or 854, 858, 530 P2d 32 (1974). The “date on which the * * * injury * * * complained of occurs” would appear to have a “common meaning”; however, as recent decisions by the Supreme Court and this court demonstrate, such language in statutes of limitation has also been held to have a “legal meaning.”

As observed in Shaughnessy v. Spray, 55 Or App 42, 48-49, 637 P2d 182 (1981), rev den 292 Or 589 (1982):

“The tendency of the Supreme Court and this court in recent years has been to interpret statutes of limitations as commencing to run at the time of the plaintiffs reasonable discovery of the defendant’s causal involvement. * * *” (Citing Dowers Farms v. Lake County, 288 Or 669, 607 P2d 1361 (1980) (Tort Claims Act); Repp v. Hahn, 45 Or App 671, 609 P2d 398, rev den 289 Or 373 (1980) (Wrongful Death Act); White v. Gurnsey, 48 Or App 931, 618 P2d 975 (1980) (defamation); Schiele v. Hobart Corporation, supra, (product liability and negligence)).

The decision in Berry v. Branner, 245 Or 307, 421 P2d 996 (1966), provided the foundation for that trend. In Berry, the plaintiff alleged that a physician had left a surgical needle in her abdomen. The surgery was performed in 1956, but the needle was not discovered until 1965. The applicable statute, ORS 12.110(1), provided that actions “for any injury to the person * * * shall be commenced within two years,” and ORS 12.010 provided that the two-year period began to run when the “cause of action * * * accrued.” (Emphasis added.) The court held that the cause of action had accrued at the time the plaintiff discovered or reasonably should have discovered the injury and the object that caused it. The Berry majority was critical of the opinion in Vaughn v. Langmack, 236 Or 542, 390 P2d 142 (1964), where the court had held the discovery principle to be inapplicable in such a case, for placing “too much emphasis” on “legislative intent as deduced from the statutory history” and not enough emphasis “upon legislative intent as determined from the ordinary legal meaning of the word ‘accrued.’ ” (Emphasis added.) 245 Or at 310. Following an examination of that term’s “ordinary legal meaning,” the court concluded as follows:

“* * * To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one. * * *” 245 Or at 312.

In U.S. Nat’l Bank v. Davies, 274 Or 663, 548 P2d 966 (1976), the Supreme Court decided that a cause of action for legal malpractice did not “accrue” under ORS 12.110 “until the occurrence of the harm,” (emphasis added) 274 Or at 668, and that damage occurred when the plaintiff was aware, or should have been aware, that the harm was caused by the defendant.

In Schiele v. Hobart Corporation, supra, the plaintiff brought an action based upon theories of product liability and negligence against the manufacturer of a meat-wrapping machine and others, seeking damages for injuries allegedly caused by polyvinyl chloride fumes produced by the machine. She filed her complaint more than three years after she first associated her health problems with breathing the fumes, but less than two years after being informed by a physician of the nature of her disease and its possible cause. As in Berry v. Branner, supra, and U.S. Nat’l Bank v. Davies, supra, the court in Schiele had to determine “when the two-year statute of limitations contained in ORS 12.110(1) begins to run (i.e., the cause of action accrues) on [plaintiffs claim].” 284 Or at 487. The court did not rely upon the analysis in those decisions but turned instead to the decisions in Urie v. Thompson, 337 US 163, 69 S Ct 1018, 93 L Ed 2d 1282 (1949); Hutchison v. Semler et al, 227 Or 437, 438, 361 P2d 803, 362 P2d 704 (1961); and Associated Indem. Corp. v. Industrial Accident Commission, 124 Cal App 378, 12 P2d 1075 (1932), all involving claims by plaintiffs who, like the plaintiff in Schiele, sought recovery for “an occupational disease.” The court concluded that:

“These cases stand for the proposition that the statute of limitations on claims involving negligent infliction of an occupational disease does not begin to run until the plaintiff knows, or as a reasonably prudent person should know, that he has the condition for which his action'is brought and that defendant has caused it. * * *” 284 Or at 489.

Accordingly, the court held as follows:

“The statute of limitations begins to run when a reasonably prudent person associates his symptoms with a serious or permanent condition and at the same time perceives the role which the defendant has played in inducing that condition. * * *” (Emphasis added.) 284 Or at 490.

It is thus clear that the term “injury” has both a common and a legal meaning and that our cases and those of the Supreme Court have essentially settled the issue that, when used in construing a statute of limitations, the term “injury” is to be given its legal meaning. “Injury” in the legal sense means a physical injury which the plaintiff knows or as a reasonable person should know was caused by the defendant. That is when the legal injury occurs. U.S. Nat’l Bank v. Davies, supra; Repp v. Hahn, 45 Or App 671, 609 P2d 398, rev den 289 Or 373 (1980); that is when the tort is committed, Dowers Farms v. Lake County, 288 Or 669, 607 P2d 1361 (1980); that is when the'cause of action accrues and when the statute of limitations commences to run. Berry v. Branner, 245 Or 307, 421 P2d 996 (1966); Shaughnessy v. Spray, 55 Or App 42, 48-49, 637 P2d 182 (1981), rev den 289 Or 589 (1982).

In Baird we held that the injury must occur within eight years of the date the product was first purchased. Plaintiff would have us hold that the injury which must occur within eight years is only the physical injury, and that the legal injury (i.e., a physical injury concerning which the plaintiff has or should have identified defendant’s causal involvement) causing the commencement of the running of the two-year statute of limitations need only occur within ten years.

In Baird we construed ORS 30.905 to permit

“* * * commencement of an action for injury based on product liability within two years of the injury complained of if the injury occurred within eight years of the first purchase of the product for use or consumption.” (Emphasis added.) 47 Or App at 572.

In other words, we said that there must be an injury within eight years and the action must be commenced within two years of the injury. There is no sound reason for saying that the two-year statute of limitations does not commence to run unless there is an actionable, i.e., legal injury, but to say that the injury which must occur within eight years need not be one upon which an action could then be brought. The difficulty with plaintiffs argument is that she asks us to construe the term “injury” to mean two different things in the context of the same statute. The difficulty is avoided if the “injury” which we said in Baird must occur within eight years and the injury triggering the running of the two-year statute of limitations in ORS 30.905(2) are construed consistently to mean “legal injury.”

The statute of limitations cannot start to run until a claim is actionable. Under the cases referred to above, a cause of action is not actionable until a physical injury occurs and until the defendant is recognized as the source of the harm. In this case, that did not occur within eight years. It is plain from ORS 30.905(1) that the date of purchase triggers the commencement of the running of the eight-year limitation period. If no cause of action accrues within eight years, the undiscovered claim is lost. In DeLay v. Marathon LeTourneau Sales, 291 Or 310, 315, 630 P2d 836 (1981), the Supreme Court said:

“* * * the intent of the legislature in enacting the statutes of ultimate repose was to supplement the applicable statute of limitations. Such a statute provides a time within which an action has to be brought and cannot be extended regardless of unfairness to the plaintiff. Failure to discover the defective work or practice until after the statute of ultimate repose had run would not toll the statute.”

We held in Baird v. Electro Mart, supra, that, in order to effectuate the legislative intent, when an injury occurred within eight years, the plaintiff was afforded an additional period of two years in which to commence an action, even though part or all of that “grace period” was beyond eight years. In the context of Baird, the injury was actionable when it occurred. Although we did not have occasion to say so there, an actionable injury within eight years is the sine qua non of the grace period.³

Under the construction urged by plaintiff, a plaintiff who discovers a physical injury on the date of purchase would have until the last day of the tenth year to discover a defendant’s causal connection with the injury but would be required to file her claim on the same day.

Our construction is in accord with what we determined to be the legislative intent in Baird. It limits the manufacturer’s liability to ten years and it gives each plaintiff a full two years to commence an action after the cause of action accrues. If a physical injury occurs on the date of purchase but defendant’s causal involvement is not discovered until the last day of the eighth year, plaintiff has two years under Baird to bring her action, unless the evidence provides a basis for finding that her delayed discovery was unreasonable. If plaintiff does not discover the defendant’s causal connection until after the eighth year, no cause of action accrues within eight years and the claim is barred. DeLay v. Marathon LeTourneau Sales, supra. That is the case here.

Affirmed.

1 See diagram at n 1 of dissent, infra at 326.

2 A review of the legislative history affords no help in determining what the legislature may have intended with respect to a discovery rule. Defendant points out that “[i]n 1981 the legislature considered and refused to adopt SB 800, which would have amended ORS 30.905 to provide a discovery rule for product claims.” SB 800 would have amended ORS 30.905, insofar as is relevant to discovery, as follows:

“(3) A product liability civil action for damages resulting from disease having an identifiable latency period and which resulted from a material, substance or emission entering the body of the plaintiff shall be commenced not later than two years after the date on which the plaintiff first discovered, or in the exercise of reasonable care, should have discovered the disease and the cause thereof.”

We note, in addition, that in its original form, ORS 30.905 expressly provided for the application of a time-of-discovery rule. Section 7 of HB 3039 provided as follows:

“(1) Notwithstanding ORS 12.115, a product liability civil action shall be commenced within_years from the date when the injury occurs, is discovered or in the exercise of reasonable care should have been discovered. However, every product liability civil action shall be commenced within the shorter of the following periods:

“(a)_years from the date the product is first purchased for use or consumption; or

“(b) A period of time equal to the anticipated life of the product and commencing on the date the product is first purchased for use or consumption.

“(2) This section does not apply to a product liability civil action based upon a breach of an express warranty.”

We are unable to find in the records of the Judiciary Committee or the Senate Committee on Trade and Economic Development, which also considered the bill, any indication that the language of Section 7 concerning discovery of the injury was discussed or referred to by members of the committee or witnesses, or that there were discussions of the problems of discovery of injuries from defective products generally. See Minutes, House Committee of Judiciary, April 18, and May 5, 11, 16 and 27, 1977; Minutes Senate Committee on Trade and Economic Development, June 21, 1977.

We decline to draw any inference from the legislature’s refusal to pass SB 800 in 1981 or HB 3039. We would be choosing among quite different interpretations, with no expressions of intent to guide us. The legislature may have omitted the language for any number of reasons: (1) the legislature did not want ORS 30.905 to be construed as incorporating a time-of-discovery rule; (2) the legislature wished to follow the course it had established with respect to judicial construction of the then applicable statute of limitations, ORS 12.110, by not expressly providing a discovery rule but leaving to the courts the option to so construe ORS 30.905 and relying on the ultimate repose provisions of that statute to establish an ultimate cut-off date for commencing product liability actions, regardless of when the damage resulted or when the act or omission was discovered; (3) it may well be that the legislature did not consider the problem of discovery at all. Our reluctance to rely on the legislative history in this case is consistent with our holding in OSEA v. Workers’ Compensation Dept., 51 Or App 55, 59, 624 P2d 1078, rev den 291 Or 9 (1981), in which we stated that:

“* * * [Petitioner's reasoning is not persuasive. An amendment to a statute may be defeated for many reasons. The failure of the legislature to pass a particular proposal is of dubious value in interpreting the legislation which was passed. Springfield Ed. Assn v. Sch. Dist., 24 Or App 751, 547 P2d 647 (1976), modified 25 Or App 407, 549 P2d 1141 (1976).”

To the same effect, see Berry v. Branner, 245 Or 307, 310-11, 421 P2d 996 (1966) (discovery under ORS 12.110).

3 This is consistent with ORS 30.905(1) which provides an action must be commenced within eight years of purchase “except as provided in subsection (2).” If an injury becomes actionable on the last day of the eighth year, the “exception” to the eight-year ultimate repose statute applies and the grace period operates to afford the plaintiff two years in which to commence the action.

This is also consistent with the House Committee on Judiciary’s motion (infra, p 5) to provide an eight-year period of ultimate repose and to provide a two-year limitation for occurrence or liability that occurred in the eight-year period. (Harm occurs in legal contemplation and liability results when plaintiff was or reasonably should have been aware that harm was caused by defendant. U.S. Nat’l Bank v. Davies, 274 Or 663, 668, 679, 548 P2d 966 (1976)).