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Keller v. Armstrong World Industries2/9/2005
En Banc
Argued and submitted October 14, 2003
Resubmitted en banc October 27, 2004.
Reversed and remanded.
Plaintiffs appeal after the trial court granted summary judgment to defendants on plaintiffs' claims for injuries related to plaintiff Lawrence Keller's exposure to asbestos. The trial court held that the claims were barred by ORS 30.907, the applicable statute of limitations. We reverse.
Because we are reviewing summary judgment in defendants' favor, we state the facts in the light most favorable to plaintiff and draw all reasonable inferences in his favor. ORCP 47 C; Jones v. General Motors Corp., 325 Or 404, 420, 939 P2d 608 (1997). Plaintiff worked as a automobile mechanic beginning the early 1960s. He specialized in muffler and exhaust work; part of the time he owned a small muffler business. Defendants Borg-Warner Automotive, Inc., and Tenneco Automotive Operating Company, Inc., manufactured or supplied some of the mufflers on which plaintiff worked. During the time period when plaintiff worked on mufflers, it was common for mufflers to be wrapped in asbestos. As a result, plaintiff was exposed to asbestos when he replaced old, crumbling mufflers. He also worked for a company that made mufflers. Part of his job involved cutting sheets of asbestos and wrapping them around muffler cores, again exposing him to asbestos fibers. In addition, plaintiff was exposed to exhaust fumes on the job and was a smoker.
In the early 1980s, plaintiff began experiencing shortness of breath. In 1986, he saw Dr. Patterson, a pulmonologist, who diagnosed interstitial lung disease. Patterson asked plaintiff about his work environment and learned that he was exposed to asbestos, among other things. He performed a bronchoscopy that showed mild interstitial fibrosis and black lung but no asbestos bodies. Patterson told plaintiff that his exposure to asbestos and exhaust fumes was harmful and recommended that he sell his muffler business. He also suggested that plaintiff stop smoking, which plaintiff tried to do several times over the following years. Patterson did not tell plaintiff that asbestos exposure was the cause of his lung problems, but he did indicate that asbestos might be the cause. In 1987, plaintiff sold his muffler business. He thereafter purchased a building supplies store in Oakridge and moved there.
In 1991, plaintiff was referred to Dr. Kintz because of continuing lung problems. After conducting an examination and reviewing pulmonary function studies and a chest x-ray, Kintz had a "suspicion * * * that [plaintiff] has mild pulmonary fibrosis, possibly related to asbestos exposure. The records from Portland that I have certainly do not indicate any confirmed inflammatory interstitial disease." Kintz ordered a bronchoscopic biopsy; at the time of the biopsy, Kintz described plaintiff as having a "ten year history of restrictive lung disease related to prior asbestos or muffler fume exposure." At that time, Kintz noted that plaintiff's chest x-ray revealed "minor interstitial changes." No records related to this biopsy or Kintz's diagnosis after the biopsy are in the record.
In December 1991, plaintiff filed an application for social security disability benefits, stating that he had "lungs fibrous" and that the cause of his lung problems were exhaust fumes, dust, and asbestos. According to plaintiff, his lung capacity had been decreasing and an x-ray in 1992 showed "black spots" in his left lung. In November 1992, Kintz wrote a short statement supporting plaintiff's claim, stating that plaintiff's condition satisfied the criteria for disability for a patient with pulmonary fibrosis. Kintz did not, however, in
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