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Gladhart v. Gladhart12/22/1999
"The statute at issue here, ORS 30.905(2), is outside of ORS chapter 12 and thus beyond the purview of ORS 12.010, the basis for prior discovery rules. And the language of ORS 30.905(2) is plain: the time to bring a product liability action ends two years 'after the date on which the death, injury or damages complained of occurs' -- not when it is discovered. That language, which is substantially similar to the language at issue in Eldridge [v. Eastmoreland General Hospital, 307 Or 500, 769 P2d 755 (1989),] and Moore [v. Mutual of Enumclaw, Ins. Co., 317 Or 235, 855 P2d 626 (1993)], 'is not amenable to a discovery rule as a matter of English.' Moore, 317 Or at 250. Dortch was wrong, then, to read a discovery rule into ORS 30.905(2), and it should be overruled ala Newell v. Weston, 156 Or App 371, 965 P2d 1039 (1998)[, rev den 329 Or 318 (1999)] (overruling prior erroneous interpretation of a statute)."
We do not agree with defendants' interpretation of ORS 30.905(2) or that Dortch, as modified by Border, was incorrectly decided. In Dortch, the plaintiff received a Dalkon Shield intrauterine device in May 1971. Between 1972 and 1976, she experienced chronic intrauterine infections. She also suffered from a build-up of scar tissue in a fallopian tube that, in 1977, resulted in an ectopic pregnancy and a tubal ligation. The plaintiff filed her products liability complaint in September 1980, more than eight years after she purchased the product. She alleged that she did not discover the relationship between the product's defect and her injuries until May 1980.
In reaching our conclusion that the plaintiff's claim was barred because the eight year period under ORS 30.905(1) had run, we reasoned that " he key to the resolution of this case * * * turn * * * upon our determination of when an injury occurs for the purposes of analyzing statutes of limitations." Dortch, 59 Or App at 316. We recognized that the phrase "the date on which the * * * injury * * * complained of occurs" from ORS 30.905(2) has a common and a legal meaning and that, "when used in construing a statute of limitations, * * * ' njury' in the legal sense means a physical injury which the plaintiff knows or as a reasonable person should know was caused by the defendant." Id. at 319. In sum, we injected a discovery component into ORS 30.905(1).
In Border, we held that the plaintiff's claim was timely. The plaintiff was injured by an exploding truck brake within the eight-year period provided in ORS 30.905(1). He brought a products liability action against the brake manufacturer within two years of the date of his injury . However, relying on our language in Dortch, the defendant argued that the plaintiff did not suffer a legal injury within the eight-year period in ORS 30.905(1) because his claim could not accrue until he discovered who manufactured the defective brake and that that had not occurred until after the eight-year period had run. We said:
" lthough the result in Dortch * * * was correct, because the eight-year period in ORS 30.905(1) had expired, our reasoning was wrong. We therefore overrule Dortch to the extent that it is based on that reasoning, because it would erroneously bar a claim for an injury that occurs within eight years after the date of first purchase by the user or consumer solely on the basis that the defendant's role in causing the injury is not known until after the eight years has passed, even if the plaintiff commences the action within two years after the actual injury.
"The flaw was our failure to give full effect to the fundamental distinction between a statute of ultimate repose and a statute of limitations. ORS 30.905(1) sets an absolute period within whi
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