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Walters v. Hobbs8/22/2001
he allegations in the amended complaint and, by extension, the substantially indistinguishable allegations in the third amended complaint concerning physical harm and emotional distress to Sherri are time-barred and, thus, are not actionable. See generally ORS 12.110(4) (providing two-year statute of limitations for medical malpractice).
ORCP 23 C provides, in relevant part:
"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."
Sherri asserts that the claims involving physical harm to her arose out of the same conduct, transaction, or occurrence set forth in the original complaint. Sherri argues that the prenatal care and the cesarean section delivery of Cheyenne were the "occurrences" set forth in the original complaint and that the physical harm to Sherri arose out of those occurrences. Conversely, Hobbs argues that the new allegations relate to tortious conduct that was not at issue in the original complaint giving rise to damages not alleged in the original complaint, and, thus that the new allegations could not relate back to the original complaint.
The Oregon Supreme Court has, on two occasions, discussed this aspect of ORCP 23 C. In Welch v. Bancorp Management Services, 296 Or 208, 675 P2d 172 (1983), the court first considered the recently-adopted ORCP 23 C. The court noted that, although the rule was based on a similar federal rule of procedure, federal case law would not be particularly helpful in interpreting the Oregon rule because Oregon's rules "specifically reject the federal approach of notice pleading in favor of retention of fact pleading." Id. at 221. Notwithstanding that difference, however, the court noted that the legislature chose the inclusive federal language which encompassed not only "conduct" (which earlier Oregon cases had endorsed in the relation-back context) but also "transaction" and "occurrence." In applying the rule, the court identified several facts as pertinent to the analysis:
"The original complaint * * * contained allegations of defendants' misrepresentations to the Trust. [The amended complaint] for the first time made additional allegations as to defendants' misrepresentations to plaintiff during approximately the same period. Plaintiff did not allege any new damages arising out of the second alleged misrepresentation." Id. at 220 (emphasis in original).
The court rejected the defendants' arguments that, because different misrepresentations were involved, the amended complaint could not relate back. The court concluded that the misrepresentation alleged in the amended complaint, given that it involved "interfering with the same contract substantially at the same time," would "unite[ ] with the originally pleaded misrepresentation to the Trust to cause the single injury alleged in the original complaint." Id. at 222.
Subsequently, in Caplener v. U. S. National Bank, 317 Or 506, 857 P2d 830 (1993), the court held that an amended complaint that alleged a number of new tort claims did not relate back to the original complaint for breach of a loan agreement by the defendant bank. The court noted that, for the most part, the new claims were based on factual allegations concerning events that occurred after the loan at issue in the original complaint was denied. One of the tort claims, however, was based on allegations that the defendant was negligent in allowing its agents to make oral commitments to lend the money in question, and in over-promoting defendant's willingness to make the loan. Id. at 523
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