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Keller v. Armstrong World Industries2/9/2005
; we cannot create such evidence if it is not in the record. In this case, defendants put no evidence into the record about what plaintiff would have learned had he inquired further. As explained above, ___ Or App at ___ (slip op at 15), we impute to plaintiff all the evidence in the record. In our view, the crux of our disagreement with the dissent is whether that evidence is sufficient to establish as a matter of law that plaintiff knew or should have known by 1998 that his disease was related to asbestos. We hold that it is not.
The dissent takes issue with our conclusion that there is a genuine issue of material fact as to whether plaintiff knew, or should have known, that his disease was asbestos related before 1998. Under the dissent's analysis, there is only one conclusion that a reasonable juror could reach on that issue. We do not disagree that a reasonable juror could conclude that plaintiff had access to sufficiently certain facts to make him aware of a substantial possibility that his disease was caused by asbestos. However, for the reasons explained above, we do not agree that a reasonable juror would be compelled to reach that conclusion. Given the state of the record in this case, and drawing reasonable inferences in plaintiff's favor, the question of whether the information available to plaintiff was sufficient to trigger the statute of limitations in this case should go to a jury.
We hold that, in the light of the conflicting evidence, there is a genuine issue of material fact as to when plaintiff knew or should have known, in the exercise of reasonable care, that he had an asbestos-related disease. Because there is a genuine issue of material fact, the trial court erred in granting summary judgment in favor of defendants.
Reversed and remanded.
EDMONDS, J., dissenting.
The majority holds that a factual dispute exists about whether plaintiff actually discovered the cause of his disease before 1998 and about whether a person exercising reasonable care should have discovered the cause of his disease before 1998. It concludes therefore that summary judgment for defendants under ORS 30.907, the applicable statute of limitations, is precluded. For the reasons that follow, I disagree.
ORS 30.907 provides:
"A product liability action for damages resulting from asbestos-related disease 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."
Plaintiff filed his complaint against defendants on October 23, 2000. It follows that, if the statute was triggered before October 1998, plaintiff's action is untimely.
Plaintiff alleges that his "asbestos-related disease was clinically diagnosed no earlier than April, 2000." Specifically, he argues:
"The evidence presented by defendants does not show that plaintiffs first knew or should have discovered plaintiff's asbestos-related disease and the cause thereof more than two years prior initiating the action. The evidence shows that plaintiff knew he suffered from interstitial fibrosis. The evidence also shows that plaintiff knew he was exposed to asbestos, and that he had been told by his doctor that asbestos could cause disease. The record is also clear, however, that plaintiff was repeatedly told that his doctors could not establish an actual cause for his disease. The evidence presented by defendants establishes that plaintiff's treating physicians were uncertain as to the cause of his disease, and that plaintiff's claims for disability compensation from the Social Security Administration had be
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