Fox v. Collins
238 Or. App. 240
Or. Ct. App.2010Background
- Plaintiff Fox revived product liability claims against Genzyme and Valleylab under Oregon's 2003 revival statute, ORS 30.905, after earlier untimely dismissals.
- Trial court dismissed revived claims as time-barred or not properly revived; appellate remanded for consideration of revival arguments on their merits.
- The 2003 amendments positioned the revival statute as the equivalent of a statute of limitations for revived claims; the amendments' effective date was January 1, 2004.
- Plaintiff refiled October 14, 2003, within the stipulated dismissal window but before HB 2080 took effect; defendants argued revival requirements were not met.
- On remand, the trial court granted summary judgment, concluding the revived claims were barred by the statute of limitations or not properly revived; affirmance was urged on appeal.
- The appeals court rejected plaintiff’s law-of-the-case and waiver theories, affirming the trial court's summary judgment consistent with the revival statute and its procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is the revival statute law of the case on waiver? | Fox relies on law-of-the-case to bar new challenges to waiver. | Law-of-the-case does not control and waiver was not resolved previously. | No; law-of-the-case does not preclude reconsideration of waiver. |
| Did defendants waive statute-of-limitations defenses under ORCP 21 G(2)? | Defendants failed to raise the defense in pleadings and thus waived it. | Waiver does not apply because the defense was not properly raised and record supports dismissal. | Waiver did not bar the defense; the defense could be raised and supported dismissal on remand. |
| Are the revived claims properly revived under ORS 30.905(2003) and the 2003 amendments? | Revival allows re-litigation of previously timely-dismissed claims if statutory conditions are met. | Claims were not properly revived and are time-barred under the statute. | Defendants' summary judgment based on revival requirements was proper. |
Key Cases Cited
- State v. Pratt, 316 Or. 561 (1993) (law-of-the-case binding in subsequent proceedings)
- Poet v. Thompson, 208 Or.App. 442 (2006) (law-of-the-case scope; precludes reconsideration of decided issues)
- Hayes Oyster Co. v. Dulcich, 199 Or.App. 43 (2005) (limits of law-of-the-case applicability in appellate review)
- Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or. 634 (2001) (criteria for affirming on alternate basis)
- Francke v. Gable, 121 Or.App. 17 (1993) (waiver principles in statute defenses)
- Palmer v. State of Oregon, 121 Or.App. 377 (1993) (waiver of statute defenses under ORCP 21)
- Waddill v. Anchor Hocking, Inc., 330 Or. 376 (2000) (waiver mechanics for defenses not raised timely)
- Gladhart v. Oregon Vineyard Supply Co., 332 Or. 226 (2001) (timing of discovery under product liability statute pre-amendment)
- McFadden v. Dryvit Systems, Inc., 338 Or. 528 (2005) (2003 revival statute constitutional against separation-of-powers concerns)