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Keller v. Armstrong World Industries2/9/2005
with that conclusion. That evidence supports an inference that, had plaintiff asked Patterson and Kintz directly in 1995 whether his condition was caused by asbestos, they would have said, "No."
A plaintiff's subjective belief that asbestos caused his symptoms must be supported by some objective evidence, and that evidence must be sufficiently certain to satisfy the "substantial possibility" standard. Although a positive diagnosis is not always required, Schiele, 284 Or at 490, neither can a plaintiff's unsupported belief that one of several causes of a disease identified by his physicians is the cause be sufficient. To hold otherwise would be to conclude, as a matter of law, that the period of limitations begins to run on an asbestos-related disease claim when a plaintiff's doctors are uncertain about the cause of his or her disease and indicate to the plaintiff that there are several possible causes of his or her disease, only one of which is asbestos, and the plaintiff subjectively believes that asbestos is the cause.
Finally, we note that defendants have not argued that plaintiff could have received, before October 23, 1998, a different medical opinion that would have established more definitively that his symptoms were caused by asbestos. Presumably defendants did not raise that argument because there is no evidence in the summary judgment record to support it. See Doe, 322 Or at 514-15 (because no evidence was submitted that addressed what the plaintiffs would have learned had they inquired, record did not permit summary judgment for defendants).
Moreover, we observe that, to the extent that it could be argued that plaintiff had discovered facts that triggered a "duty to inquire" further about the cause of his symptoms, a "duty to inquire" standing alone is not sufficient to cause the period of limitations to begin to run; a factual question will persist until the facts learned as a result of the inquiry would cause a reasonable person to discover that his or her symptoms are asbestos related. See Greene, 335 Or at 123. The dissent's assertion that "the issue in this case turns on whether plaintiff's failure before 1998 to make a further inquiry about the cause of his disease constitutes the lack of diligence expected of a reasonable person," ___ Or App at ___ (Edmonds, J., dissenting) (emphasis in original) (slip op at 7), is accordingly misleading. As the court made clear in Doe and Greene, the existence of a duty to inquire and failure to do so are not, standing alone, sufficient to support a conclusion that the period of limitations began to run as a matter of law. There must also be evidence that, had a plaintiff inquired, he or she would have learned facts sufficient to support the pertinent elements of his or her claim. We have imputed to plaintiff knowledge of all facts in the summary judgment record. Defendants introduced no evidence on summary judgment about what plaintiff would have learned, had he inquired further.
Accordingly, the dissent's statement that " he majority and I * * * appear to agree that the limitations period begins to run * * * when the obligation to undertake discovery efforts to discover a claim occurs" is not entirely accurate. ___ Or App at ___ (Edmonds, J., dissenting) (slip op at 16). We agree that actual knowledge is not required, but we dispute that the obligation to undertake reasonable discovery efforts, standing alone, triggers the statute of limitations as a matter of law. As the court made clear in Doe and Greene, that obligation must be accompanied by evidence of what the plaintiff would have learned had he or she undertaken the discovery efforts. Such evidence is necessary to establish what a plaintiff "should have known"
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