Lead Opinion
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.
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.,
In the early 1980s, plaintiff began experiencing shortness of breath. In 1986, he saw Dr. Patterson, a pulmon-ologist, 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 exрosure 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 plaintiffs 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.
In 1993, plaintiff visited the emergency room at Providence Medical Center because of abdominal pain. The chart notes from that visit indicate that, in discussing his medical history with the examining physician, plaintiff reported that he was being treated for asbestosis.
In 1994, plaintiff had surgery for an aortic aneurysm. In preparation for that surgery, he saw Patterson again for a preoperative evaluation. In that evaluation, Patterson stated that plaintiff had “[interstitial lung disease, etiology uncertain[.]” He reviewed plaintiffs asbestos-related work history, noting that plaintiff s job that involved cutting sheets of asbestos “represent [s] a significant asbestos exposure.” Patterson noted that plaintiff s 1986 bronchoscopy had shown no
Later in 1994, plaintiff submitted a “reconsideration disability report” in connection with his application for social security disability benefits. Plaintiff reported that his shortness of breath had worsened and that Kintz had advised him that, because of his “asbestos lungs” and. psychological problems related to his illness, he should not try to carry on his regular work duties.
In January 1995, plaintiff filed a claim for workers’ compensation benefits, asserting that he had “asbestos lung” from exposure to asbestos from manufacturing and installing exhaust systems. As part of the evaluation of that claim, SAIF referred plaintiff to Dr. Smith for examination. Smith reviewed plaintiffs medical records and chest x-rays spanning a 20-year period and performed a number of additional tests. He concluded that plaintiffs condition was not asbestos related:
“This patient has a very unusual history and has been followed at the Thoracic Clinic since 1974. Serial chest x-rays were reviewed and there has been no evidence of significant progressive interstitial disease or an asbestos-related condition. The patient had definite exposure to asbestos most likely in the form of chrysotile blankets. The exposure would be charаcterized as relatively light in lifetime exposure and at best, moderate. It is unlikely that the exposure would be heavy enough to cause asbestosis. The clinical findings are consistent with the occupational exposure history. There is no evidence of asbestos-related pleural disease or pleural thickening or pleural fibrosis. There is no evidence of asbestos-related interstitial disease or asbestosis. * * *
“I believe his case can be closed in that he has no asbestos related condition.”
SAIF asked both Patterson and Kintz to review Smith’s report, and each signed a statement indicating that he agreed -with all of the report.
In 2000, Dr. Schaumberg, a pulmonologist, reviewed CT scans of plaintiffs chest performed in August and November 1999, as well as the results of plaintiffs pulmonary function tests. In a letter to plaintiffs attorney, Schaumberg wrote that plaintiff “clearly has a[n] interstitial lung disease with a restrictive pulmonary defect. Given his history of asbestos exposure, the most likely etiology is because of asbestosis.”
Plaintiff filed his complaint in this case on October 23, 2000. Defendants moved for summary judgment, arguing that the action was barred by the applicable statute of limitations. As noted, the trial court granted the motions. We will affirm only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. ORCP 47 C. As we explain below, a genuine issue of material fact exists in this case with respect to when plaintiff knew or should have known that he had an asbestos-related disease, and we accordingly reverse the grant of summary judgment.
The applicable statute of limitations, ORS 30.907, provides that a product liability
This case requires us to construe ORS 30.907, and, consequently, we are guided by the interpretive principles set out in PGE v. Bureau of Labor and Industries,
“A product liability civil 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.”
ORS 30.907 has not been construed by the Supreme Court or by this court. However, the Supreme Court has construed wording in ORS 12.110(4), the statute of limitations for medical malpractice actions, that, except for being in the passive voice, is identical to wording in ORS 30.907. ORS 12.110(4) provides, in part:
“An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered.”
Both ORS 12.110(4) and ORS 30.907 define the beginning of the limitations period as when a plaintiff “first discovered or in the exercise of reasonable care should have discovered” the pertinent elements. It is that wording that indicates when the legislature intended that the periods of limitation begin to run. Because the wording that indicates when the periods of limitation begin to run is identical, cases construing the meaning of the phrase “first discovered or in the exercise of reasonable care should have discovered” in ORS 12.110(4) are helpful in determining the meaning of that phrase in ORS 30.907. See, e.g., Robinson v. Nabisco, Inc.,
The two statutes differ notably in one respect: ORS 12.110(4) pertains to when an “injury” is or should have been discovered, while ORS 30.907 pertains to when a disease and its cause is or should have been discovered. “Injury,” as used in ORS 12.110(4), means “legally cognizable harm” and is comprised of three elements: harm, causation, and tortious conduct. Gaston v. Parsons,
In light of that difference between the two statutes, the dissent takes us to task for relying on constructions of ORS 12.110(4) in determining the meaning of ORS 30.907.
In both statutes, the legislature has indicated that a plaintiff must have the same level of certainty of the required elements in order to trigger the limitations period. Specifically, the statute of hmitations begins to run for either type of claim when the plaintiff “first discovered or in the exercise of reasonable care should have discovered” the pertinent elements. ORS 30.907; ORS 12.110(4). It is such wording that has been construed as creating a “discovery rule” in statutes of limitation. See Gladhart v. Oregon Vineyard Supply Co.,
In its most recent case construing ORS 12.110(4), the Supreme Court observed:
“The period oflimitations in [ORS 12.110(4)] commеnces from the earlier of two possible events: (1) the date of the plaintiffs actual discovery of injury; or (2) the date when a person exercising reasonable care should have discovered the injury, including learning facts that an inquiry would have disclosed.”
Greene v. Legacy Emanuel Hospital,
In Gaston, the Supreme Court concluded that a plaintiff “first discovered or in the exercise of reasonable care should have discovered” the elements of a statute of limitations when the plaintiff had knowledge of “facts [that] would make a reasonable person aware of a substantial possibility that each of the * * * elements * * * exists.”
The exact contours of a “substantial possibility” are difficult to articulate in the abstract. As we explain below, determining whether that standard has been met in a particular case requires careful consideration of all the facts available to a plaintiff and аll the surrounding circumstances. Having considered the meaning of the phrase “substantial possibility” as used by the Supreme Court, the meaning of the statutory term “discover,” and the purpose behind the discovery rule, we conclude that a “substantial possibility” connotes something less than a preponderance, but still a fairly high level of certainty, and certainly more than a suspicion.
As noted, the court did not address in Gaston or in subsequent cases, nor have we, the meaning of the phrase “substantial possibility.” A “possibility” is “[something that is possible.” The American Heritage Dictionary of the English Language 1414 (3d ed 1996). “Possible,” in turn, means “[c]apable of* * * existing[ ] or being true without contradicting proven facts” or “[o]f uncertain likelihood.” Id. Standing alone, use of the
That view is consistent with the plain meaning of the statutory term “discover” that the court was construing when it adopted the “substantial possibility” test. “Discover” means, as relevant here, “to make known (something secret, hidden, unknown or previously unnoticed)” or “to come to know something not previously known.” Webster’s Third New Int’l Dictionary 647 (unabridged ed 2002). To “know” means “to apprehend with certitude as true, factual, sure, or valid.” Id. at 1252. The term “discover” used by the legislature thus carries a connotation of a high degree of certainty, indicating that the legislature intended that the period of limitations not begin to run until a plaintiff has a high degree of certainty about the facts that would support the elements of his or her claim identified in the statute of limitations.
That conclusion is bolstered by the court’s reiteration in Gaston of the familiar principle that “ [t]he discovery rule is designed to give plaintiffs a reasonable opportunity to become aware of their claim.”
“Ordinarily, the question of whether and when an employee knew or should have known that he had an occupational disease is one of fact for the jury.” McCoy v. Union Pacific Railroad Co.,
We agree with the dissent to the extent that it asserts that a plaintiff can be held to have discovered the pertinent elements of his or her claim if he or she had a reasonable opportunity to become aware of facts that would support them. Actual knowledgе is not required; a plaintiff may not avoid the bar of the statute of limitations by failing to make a further inquiry that would have revealed facts that would have supported the pertinent elements of his or her claim. That is why we impute to plaintiff knowledge of all facts reasonably available to him, which in this case includes all of the evidence in the summary judgment record. To the extent, however, that the dissent suggests that we should speculate about what else plaintiff might have learned had he inquired,
Based on the record in this case, we conclude 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 would have discovered that cause before 1998. We agree with plaintiff that the facts available to him simply do not establish, as a matter of law, that he discovered, or reasonably should have discovered, before 1998 that there was a considerable degree of certainty that his symptoms were caused by asbestos. On the contrary, his treating doctors consistently expressed uncertainty about the nature of his condition and identified several possible causes.
To review the evidence, in 1986, Patterson told-plaintiff that asbestos “might” be the cause of his symptoms, but he also told plaintiff that exhaust fumes were harmful and that he should stop smoking. In 1991, Kintz had a “suspicion” that plaintiff had mild pulmonary fibrosis, “possibly” related to his exposure to asbestos; Kintz also described plaintiffs symptoms as being related to asbestos or muffler fume exposure. In 1992, when Kintz stated that plaintiffhad pulmonary fibrosis, he did not indicate a cause. In 1994, Patterson stated that the “etiology [of plaintiffs condition was] uncertain.” In 1995, Smith concluded that plaintiffs condition was not related to asbestos, and both Patterson and Kintz concurred. Finally, in 2000, Schaumberg stated that the “most likely etiology” of plaintiffs condition was asbestosis.
Given that factual record, a factfinder could reason as follows: Before Schaumberg’s opinion in 2000, the record shows only that plaintiffs physicians were uncertain about the nature and cause of plaintiffs disease. Although they thought that plaintiffs symptoms might be related to asbestos, they also told him that the exhaust fumes that he had been exposed to were harmful and that he should quit smoking. Before he received Schaumberg’s opinion in 2000, plaintiff did not have available sufficiently certain information about the cause of his symptoms to conclude that he knew, or should have known, with a considerable level of certainty that his disease was caused by asbestos. Based on that view of the record, a factfinder could conclude that plaintiff had not discovered, nor should a reasonable person have discovered, the cause of plaintiffs disease before October 23,1998.
In addition, as the court noted in Gaston, whether a reasonable person would be aware of a substantial possibility of one of the elements of the statute of limitations depends on all the relevant circumstances.
In this case, plaintiffs doctors consistently expressed uncertainty about the cause of his disease and gave him several alternative explanations for his symptoms. In that respect, this case is similar to those malpractice and products liability cases in which courts have held that statutes of limitation did not begin to run where plaintiffs received reassurances from defendants
Of course, in this case, the alternative explanations were not presented with the intent of hiding a tortfeasor’s wrongdoing or liability. That intent is not important, however; the effect of an awareness of the existence of alternative explanations on a reasonable person is. Where, as here, a plaintiff’s doctors consistently express uncertainty about the cause of disease and present him or her with a number of equally plausible factual explanations for his or her disease, that may preclude the conclusion that he or she knew, or should have known, as a matter of law, that one of those explanations was sufficiently correct to trigger the statute of limitations. See Lundy v. Union Carbide, 695 F2d 394, 397 (9th Cir 1982) (where the plaintiffs doctor indicated that the plaintiffs symptoms could have “numerous causes,” including exposure to asbestos, smoking, and exposure to formaldehyde fumes, grant of summary judgment on statute of limitations ground was improper); Hutchison v. Semler et al,
This is not a case of competing medical opinions. It is a case in which plaintiff’s treating physicians consistently expressed uncertainty about the cause of his symptoms. As late as 1994, one of those doctors indicated that the etiology of his symptoms was uncertain. Two other possible causes for his symptoms — exhaust fumes and smoking — were identified. When confronted in 1995 with a report that stated repeatedly that asbestos was not the cause of plaintiffs symptoms, his treating physicians concurred, which was consistent with their earlier and ongoing expressions of uncertainty about the cause of his disease. Given that record, we cannot say as a matter of law that plaintiff knew, or reasonably should have known, that there was a considerable likelihood that the cause of his disease was asbestos.
It appears that at some times plaintiff held a subjective belief that his symptoms were caused, at least in part, by asbestos. However, plaintiffs subjective belief is not determinative of the question of what a reasonable person should have known about the elements of a statute of limitations, because that issue is determined using an objective standard. Doe v. American Red Cross,
A plaintiffs 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,
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 symptоms 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,
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,
Accordingly, the dissent’s statement that “[t]he majority and I * * * appear to agree that the limitations period begins to rim * * * when the obligation to undertake reasonable efforts to discover a claim occurs” is not entirely accurate.
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 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 reаsonable 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.
Notes
Plaintiff Patricia Keller is Lawrence Keller’s wife and brings a claim for loss of consortium. References to “plaintiff” in this opinion are to Lawrence Keller.
Plaintiffs brought claims against other defendants, but those claims are not before us on appeal. The judgments from which plaintiffs appeal comply with the version of ORCP 67 B that was in effect when the judgments were entered. We understand that the provisions of House Bill 2646 (2003) do not affect our analysis. See Or Laws 2003, ch 576.
The record does not indicate what action was taken on plaintiffs claims for social security disability benefits or on his claims — mentioned in the text below— for workers’ compensation benefits. Defendants, during oral argument before the trial court in support of their motion for summary judgment, assumed that the claims had been denied.
Defendants argue that there is no evidence that plaintiff knew about Smith’s report or Patterson’s and Kintz’s concurring statements, and therefore plaintiff cannot rely on them to establish a genuine issue of material fact. We reject that argument because, even if it is not reasonable to infer that plaintiff knew about the report and the statements, the question presented here is not only what plaintiff knew, but also what he would have known had he inquired. The dissent observes that defendants argue that the fact that there is no evidence that plaintiff knew about the report and the statements should undercut plaintiffs ability to rely on them here.
The dissent points to ORS 30.905 to support its argument that the legislature could have used “injury” in ORS 30.907 if it had wanted to. ORS 30.905 is the statute of hmitations generally applicable to product liability claims. The dissent notes that, in ORS 30.905(2)(a), the legislature indicated that the statute begins to run when the plaintiff" ‘discovers, or reasonably should have discovered, the personal injury and its causal relationship to the defendant’s product.”
In Gladhart, the Supreme Court pointed to ORS 30.907 (then numbered ORS 30.905(3) (1983)) as a statute that expressly contains a discovery rule.
Some opinions construing ORS 12.110(4) discuss only the plaintiffs awareness of tortious conduct. See
Although we have not found a case in which we or the Supreme Court has expressly applied the “substantial possibility’ standard to an element of a statute of limitations other than tortious conduct, Berry v. Branner,
The Supreme Court has consistently indicated that a plaintiff must have the same level of certainty about each pertinent element to begin the period of limitations. E.g., Gaston,
The dissent would, in effect, limit the relevant circumstances that might affect the beginning of the limitations period to a single circumstance: the existence of a doctor-patient relationship between a potential defendant and the plaintiff.
It is also possible that plaintiff had other lung problems early on, but only later developed an asbestos-related disease. If that were the case, then plaintiff could not have discovered a disease that he did not have at the time. The parties do not frame their arguments in that manner, however, and, accordingly, we do not address that possibility.
We agree with the dissent that, had the period of limitations already begun to run before that report, the report would not have unrung the bell. See
In reaching that conclusion, the dissent relies on inferences that favor defendants, e.g., an inference that plaintiffs conduct in selling his muffler business, filing disability claims, and making certain statements to other medical providers establishes that he had actual knowledge of the cause of his disease and an inference that an attorney who represented plaintiff before 1998 could have advised him about the viability of a product liability claim.
Dissenting Opinion
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, plaintiffs 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 plain-tifPs 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 anactual cause for his disease. The evidence presented by defendants establishes that plaintifPs treating physicians were uncertain as to the cause of his disease, and that plaintifPs claims for disability compensation from the Social Security Administration had been twice denied for lack of evidence of disease. * * *
“In addition to the evidence provided by defendants, plaintiff provided evidence that his claim for Workers’ Compensation benefits was denied for lack of evidence of asbestos-related disease. * * * [P]laintiffs counsel has a qualified expert witness who is available and is willing to testify that plaintiff now has an asbestos-related disease.”
The following factual chronology is uncontradicted in the summary judgment evidentiary record:
1. By the 1970s, plaintiff knew “without a doubt” that he had been exposed to asbestos in the 1960s during the course of his work.
2. By the mid-1980s, plaintiff was experiencing breathing problems. He was referred to Dr. Patterson, a pul-monologist. Plaintiff testified in his deposition that he knew that asbestos might be hazardous to his health. When asked when he first learned that asbestos might be hazardous to his health, plaintiff replied, “That probably was the first time was from Dr. Patterson.” He added, “Dr. Patterson told me I should get out of the exhaust business completely” because his exposure to asbestos could be causing his breathing problems. As a result of that advice and reading articles about the health risk of asbestos exposure, plaintiff sold his muffler repair business “probably a year” later, “just to get out of it, to get away from it.”
3. In May 1991, plaintiff was referred to Dr. Kintz, also a pulmonologist. Kintz reported that he was given a history that “sounds like [plaintiff] had interstitial lung disease that was not given any specific treatment.” He concluded at that time that “[my] suspicion is that [plaintiff! has mild pulmonary fibrosis, possibly related to asbestos exposure.” In December 1991, plaintiff filed a claim with the Social Security Administration relying on the opinions of Patterson and Kintz. In a report made pursuant to his social security claim, plaintiff stated, “I feel the prolonged exposure to exhaust fumes, dust [and] asbestos for so many years is to blame for my lung condition.” In March 1992, he filed a second social security disability claim because of “decreasing lung function.”
4. By November 1992, plaintiff was represented by an attorney, apparently with regard to his disability claim. Kintz advised plaintiffs attorney that plaintiff met the criteria for disability for patients with pulmonary fibrosis.
5. In December 1993, plaintiff reported to an emergency room physician at Providence Medical Center in Portland that he was currently “being treated for asbestosis.”
6. In November 1994, plaintiff asked for reconsideration of his social security disability claim in which he said that Kintz had informed him that his “asbestos lungs” would not permit him to “carry on [his] regular work duties [,]” and that “[m]y asbestos lungs only, get worse with time. * * * Dr. Kintz and Dr. Patterson have both informed me no treatment will stop my lungs. Will just get worse.”
7. In January 1995, plaintiff filed a workers’ compensation claim in which he describes his injury as “[e]xposure to asbestos from manufacturing [and] installation of exhaust systems.”
This is a case of first impression; no Oregon appellate сourt has previously construed the meaning of ORS 30.907. In construing the meaning of a statute, our task is to discern the intent of the legislature. We undertake that task by first examining the text and the context of the statute, taking into account the commonly understood meaning of the words used in the statute. The majority gives lip service to that principle but then detours off into an analysis of the case law decided under ORS 12.110(4). Because our respective approaches differ to such a great extent, it is helpful to initially summarize where the majority and I agree and disagree, before proceeding further in an analysis of the language of ORS 30.907.
2. The maj ority and I agree that we are aware of no other Oregon appellate case that has applied the “substantial possibility” test to any statute of limitations outside the confines of the word “injury” in ORS 12.110(4) and that the cases that have used that test have applied it to the element of “tortious conduct,” a component of an “injury” under ORS 12.110(4).
3. I also agree with the majority that, for purposes of ORS 12.110(4) and determining whether an “injury” has triggered the limitations period in that statute, the element of causation could be satisfied by a “substantial possibility” of causation.
4. I disagree, however, that the case law under ORS 12.110(4) informs the meaning of ORS 30.907 and with the majority’s assertion that the “substantial possibility test” under ORS 12.110(4) applies to ORS 30.907. Later in this opinion, I explore more fully the reasons for our disagreements.
5. But even if the “substantial possibility” test applies to the element of causation in ORS 30.907, that test is satisfied here as a matter of law. There are no genuine issues of material fact that preclude summary judgment under ORCP 47 C. That ultimate conclusion is based on the analysis that immediately follows.
The proper analysis of the legislature’s intent underlying ORS 30.907 begins and ends with a first-level examination of its text and context under rules of PGE v. Bureau of Labor and Industries,
Plaintiff’s arguments about the meaning of the words of ORS 30.907 are at odds with the above principles. He focuses on the “actual knowledge” component of the statute without meaningfully engaging in the alternative test under the statute of whether he had a reasonable opportunity to discover his claim. Thus, when properly framed, the issue in this case turns on whether plaintiffs failure before 1998 to make a further inquiry about the cause of his disease constitutes the lack of diligence expected of a reasonable person. With regard to that issue, plaintiff concedes that, beginning in the late 1980s, his treating physicians talked to him about the risks of exposure to asbestos in the products that he used at work and that they believed that his interstitial lung disease could be due to his lengthy asbestos exposure. It is difficult to conceive how the legislature could have contemplated any greater opportunity for plaintiff to discover the cause of his disease and to bring a claim pursuant to what he discovered than to consult with and receive advice from his own medical рroviders. But there is even more evidence that plaintiff had the opportunity to discover the cause of his disease based on his own conduct. After receiving Patterson’s advice in the 1980s, plaintiff sold his business within the next year, a business that continued to expose him to asbestos. Also, he read articles about the health risks arising from exposure to products at about the same time.
Moreover, plaintiff thereafter represented to medical treatment providers that his lung disease was caused by asbestos, and he filed disability claims making those representations. In December 1991 and again in March 1992, plaintiff filed social security claims in which he asserted that his lung disease was due to “prolonged exposure to exhaust fumes, dust [and] asbestos for so many years * * Plaintiff repeated his contention made in December 1991 as to causation in his workers’ compensation claim filed in January 1995. When asked to describe “fully” the circumstances giving rise to his claim for compensation, plaintiff wrote, “Exposure to asbestos from manufacturing [and] installation of exhaust systems.” Noteworthy is that he was represented at some point by an attorney with regard to his social security asbestos-related claim. Of course, representation by counsel on a related claim is always an objective factor used by courts in determining whether a discovery statute is triggered by a reasonable opportunity.
Plaintiff, nevertheless, relies in major part on Dr. Smith’s April 1995 evaluation, which occurred after he filed his workers’ compensation claim. Smith, examining plaintiff for an insurer, concluded that “[plaintiff] has no asbestos related condition.”
Regardless of the above circumstances, there is a more compelling conceptual problem with the consideration of Smith’s report as part of the analytical calculus, a problem that goes to the heart of plaintiffs position. Focusing on Smith’s report causes the analysis to take into account the accumulated information in the summary judgment record rather than to consider what plaintiff discovered or reasonably could have discovered before that time. For purposes of the issue of assessing when plaintiff had a reasonable opportunity to discover his claim, we must determine when the limitations period began, based on the information reasonably available during any particular point in time in the chronology rather than at the end of the chronology. That is because Smith’s April 1995 report could not have operated to toll the limitations period after it had expired. Moreover, Smith’s report cannot operate to create a genuine issue of material fact about when, in the exercise of reasonable care, plaintiff should have discovered the cause of his disease, if, in fact, a reasonable opportunity to discover the disease existed at an earlier time.
Finally, in deciding when plaintiff had a reasonable opportunity to discover the cause of his disease, it is useful to compare the content of Patterson’s and Kintz’s reports with regard to the findings of Dr. Schaumberg, the pulmonologist on whom plaintiff relies as the source of his purported “initial” discovery of the cause of his disease. That comparison informs the issue because it tells us what information plaintiff obtained from Schaumberg that was purportedly not available at an earlier time from his other medical providers. In May 1991, Kintz reported, based on pulmonary functions studies, that plaintiff had a restrictive lung disease. He wrote, “My suspicion is that [p]laintiff has mild pulmonary fibrosis, possibly related to asbestos exposure.” (Emphasis added.) In June 1991, Kintz wrote, “This is a 49[-year-old] man with ten year history of restrictive lung disease related to prior asbestos or muffler fume exposure.” (Emphasis added.) He concluded in that report that plaintiff suffered from “Restrictive lung disease, likely secondary to interstitial fibrosis.”
In 1994, Patterson prepared a preoperative evaluation for surgery that was to be performed on plaintiff for another condition. Pattеrson described plaintiff as having “known lung disease” and indicated that the etiology of that disease was “uncertain.” But in another portion of that report, he wrote,
“A bronchoscopy in 1986 showed mild interstitial fibrosis and anthracosis, but no asbestos bodies. In 1960 [plaintiff] began working in the muffler business, and for about five years worked at Portland Muffler where they wrapped the inside cores of the muffler with asbestos. The asbestos arrived in sheets, and was cut with a knife. He continued working in the muffler business, but the first five years represent a significant asbestos exposure.
“He has no other pertinent history as regards interstitial lung disease.”
(Emphasis added.)
In comparison to the above findings that occurred before 1998, Schaumberg reported in April 2000:
“[Plaintiff] has requested that I contact you regarding the diagnosis of his lung disease. [Plaintiff] is a 57 year old gentleman who presents with interstitial infiltrates consistent with pulmonary fibrosis on his computed tomography (CT) scan ofthe chest, both from August 1999 as well as November 1999. This is associated with a restrictive pulmonary defect on his pulmonary function tests [.] * * *
“[Plaintiff] worked extensively with asbestos for a period of five[] years, beginning in 1960, when he was working with mufflers, which were wrapped in asbestos on a daily, continuous basis. He had a much less intense exposure to asbestos for the subsequent 20 years where he was working with mufflers that did have asbestos associated with them but were not wrapped in asbestos.
“[Plaintiff] has no other diagnosis of diseases that have been associated with interstitial lung disease. He has no other significant occupational, medication, or environmental exposures that could account for his interstitial lung disease.
“[Plaintiff] clearly has a [sic] interstitial lung disease with a restrictive pulmonary defect. Given his history of asbestos exposure, the most likely etiology is because of asbestosis.”
(Emphasis added.)
What the above comparison demonstrates is that Kintz, Patterson, and Schaumberg took the same mеdical history from plaintiff and that they performed the same or similar medical tests. Those tests revealed interstitial fibrosis in plaintiffs lungs. As to the cause of plaintiffs lung disease, Kintz wrote in 1991 that plaintiffs lung disease was “possibly related to” his exposure to asbestos. In another report, he said that plaintiffs disease was “related to prior asbestos or muffler fume exposure.” Patterson reported in 1994 that plaintiff had no other “pertinent history” than his exposure to asbestos. Schaumberg opined, that, “[gfiven his history of asbestos exposure, the most likely etiology is because of asbestosis.” (Emphasis added.) When read together, the evidence is uncontroverted that plaintiffs asbestos exposure was the suspected cause of his lung disease as early as 1991. Significantly, this is not a case where the evidence shows that it was impossible to have discovered the cause of the disease before 2000 or that a significant change in plaintiffs condition resulted in the cause of the disease being discovered in 2000 for the first time. Viewing the entire summary judgment evidentiary record in the light most favorable to plaintiff, the most that can be said is that Schaumberg was the first doctor to report what was the “most likely” cause of the previously reported alternative causes of plaintiffs disease.
At the core of the majority’s position that summary judgment is precluded on this record is its assertion that the record does not demonstrate that there was available to plaintiff a definitive medical opinion before October 1998 regarding causation of plaintiffs disease because of the possibility of other causes of his disease. See, e.g.,
But even if the majority is correct that a trier of fact could reasonably find that plaintiff lacked the actual knowledge required for the limitations period to begin in the pertinent time period, and it is assumed
Significantly, plaintiff does not contend that there was any intervening circumstance between 1991 and 1994 that operated as an impediment to the making of such an inquiry. Moreover, plaintiff cannot rely properly on his failure to make a further inquiry regarding causation by asserting that there is no evidence in the summary judgment record that such an inquiry at that time would have established actual causation. Such a rule enables him to file a stale cause of action and to thereby postpone the beginning of a limitations period without undertaking the reasonable inquiry to ascertain whether defendants’ products caused his disease required by the statute. By ignoring the opportunity that would otherwise prompt a person exercising reasonable diligence to make further inquiry, plaintiff effectively frustrates the policy underlying ORS 30.907 to bar stale claims.
As applied to this case, the reasonable discovery doctrine placed on plaintiff the affirmative duty to inquire as to the cause of his disease during the time period between 1991 and 1994 because a reasonable person would have inquired further under the same circumstances. What this summary judgment record shows, based on uncontradicted facts, is that plaintiff believed that he was suffering from asbestosis based on his own knowledge of the consequences of his asbestos exposure and his doctors’ confirmation that asbestos could be a cause of his condition. What the uncontrаdicted evidence also
I now turn again to the majoritys analysis and, more particularly to the areas of our disagreement. As I understand the majority’s opinion, we agree that ORS 30.907 and ORS 12.110(4) address different theories of hability, negligence and strict liability, and that they contain different elements. The majority and I also appear to agree that the limitations period begins to run under both statutes when actual knowledge of a claim occurs or when the obligation to undertake reasonable efforts to discover a claim occurs. Where we differ is that the majority believes that “the legislature used identical wording in the two statutes to set the bar for when the limitations period begins to run,”
Contrary to the majoritys assertion, the legislature did not use “identical wording” in the statutes to trigger the beginning of the limitations period. The limitations period under ORS 12.110(4) does not begin to run until an “injury’ occurs, and the word “injury’ and its subparts appear only in ORS 12.110(4).
Although the statutes share a common policy to commence the limitation period when there is a reasonable opportunity to discover a claim, the paths that the statutes take to implement that policy are discrete. ORS 12.110(4) pertains to claims founded in negligence, and it focuses on the “injury” arising from medical or dental malpractice where the circumstances surrounding an adverse medical outcome may prohibit a reasonably careful person from discovering the malpractice of the treatment provider.
“[t]he significance of the physician’s statements is that they are circumstances to be considered in determining the reasonableness of the plaintiffs actions. Any statement made by the physician * * * is to be considered along with other circumstances(e.g., the nature of the harm, the nature of the surgery performed) in evaluating when a plaintiff reasonably should have discovered that he or she was suffered a legally cognizable harm.”
Id. at n 9. In fact, as the Gaston court observed, “[a] physician’s assurances may be particularly influential on a plaintiff because the physician-patient relationship is ‘a relationship of trust and confidence * * * in which continued treatment or other resort to the skills of the defendant is required.’ ” Id. at 257 (quoting Cavan v. General Motors,
Recall that the goal of the reasonable discovery doctrine is to avoid the circumstance in which the limitations period expires before a plaintiff has the opportunity to discover the existence of the claim. Frohs,
“Actual knowledge that each element [of an ‘injury] is present is not required. On the other hand, a mere suspicion [of medical malpractice] is insufficient to begin the statute of limitations to run. We believe that a quantum of awareness between the two extremes is contemplated by the statute. Therefore, the statute of limitations begins to run when the plaintiff knows or in the exercise of reasonable care should have known facts which would make a reasonable person aware of a substantial possibility that each of the three elements (harm, causation, and tortious conduct) exists.
“We emphasize that this is an objective test. In most cases, the inquiry will concern what a plaintiff should have known in the exercise of reasonablе care. In such cases, the relevant inquiry is how a reasonable person of ordinary prudence would have acted in the same or similar situation. * * * Relevant to this analysis will be a plaintiffs failure to make a further inquiry if a reasonable person would have done so”
Gaston,
Thus, the words “mere suspicion” and “substantial possibility’ are used by the Gaston court to describe the dividing point on a scale of awareness sufficient to trigger the beginning of the limitations period in ORS 12.110(4) for purposes of the particular circumstances that the statute addresses. The rule that a “mere suspicion” of an injury on the part of a putative plaintiff in a medical malpractice case will not trigger the beginning of the limitations period reflects the understanding that plaintiffs, as lay persons and patients, are not expected to know about medical matters within the exclusive knowledge of the plaintiffs adversary, the plaintiff’s medical provider. The majoritys assumption that a plaintiff must have the same level of certainty of the required elements under both ORS 12.110(4) and ORS 30.907 misses the understanding that the “substantial possibility” test under ORS 12.110(4) exists to identify the point on the continuum of awareness at which a patient will be deemed to have the reasonable opportunity to become aware of his medical provider’s negligence.
In contrast to ORS 12.110(4), ORS 30.907 does not address unique circumstances where discovery is inherently difficult because of physician/patient relationships. Rather, ORS 30.907 is an ordinary statute of limitations like other statutes of limitation that govern claims where there are not the kinds of impediments to the opportunity to discover the elements of a claim that exist under ORS 12.110(4). ORS 30.907 requires only that the plaintiff discover or, in the exercise of reasonable care, should have discovered “the disease and the cause thereof’ in connectiоn
In summary, although the policy objectives of ORS 12.110(4) and ORS 30.907 are the same, the difference in the circumstances that the statutes address operates to dispense with any need for the courts to superimpose a “mere suspicion/substantial possibility” sliding scale on the legislature’s language in ORS 30.907. In effect, such a requirement would be superfluous because the impediments to discovery due to physician/patient relationships that exist under ORS 12.110(4) do not arise under ORS 30.907. There is no danger of the limitations period expiring under ORS 30.907 before a plaintiff can discover a claim due to a medical provider concealing pertinent information from a putative plaintiff. Where the legislature’s language in a statute adequately expresses its intention, as occurs in ORS 30.907, this court has no authority, in the guise of interpretation, to add a gloss to the legislature’s words, as occurs thrоugh the majority’s insertion of ORS 12.110(4)’s “injury” requirements into ORS 30.907. See ORS 174.010 (“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein[.]”). It is for that reason that I believe that the majority errs when it borrows from ORS 12.110(4) for purposes of interpreting ORS 30.907.
Additionally, the majority relies heavily on two cases, Doe v. American Red Cross,
“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’; 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.”
Presumably, the majority derives the rule that it asserts in the above paragraph because summary judgment was reversed in Doe. However, the rulings in the cases relied on by the majority, when considered in the context of their facts, do not support the proposition that, before summary judgment is proper in this case, there must also be evidence that, had plaintiff inquired, he would have learned facts sufficient to support his claim against defendants. A comparison of the facts and rulings in each case with the facts in this case demonstrates the majority’s error.
In Doe, an action was brought in 1990 against a blood bank and its former medical director on behalf of a recipient of a blood transfusion. The blood used in the transfusion contained human immunodeficiency virus (HIV). The threshold issue was when
“From the record that the parties made with respect to summary judgment, we conclude that plaintiff’s knowledge in October 1978 of the harm caused to John Doe by HIV contaminated blood supplied by the Red Cross would have put plaintiff on inquiry notice of the existence of tortious conduct by defendants, as a matter of law. But the duty to inquire still left open the issue of what the Does would have learned had they inquired. That is, the existence of a duty to inquire does not foreclose the existence of a factual dispute concerning the question of what the Does would have learned. Application of the discovery rules “knew or should have known’ standard makes the issue of what the Does ‘should have known’ about the possibility of defendant’s ‘tortious conduct’ an issue of material fact.
“Because no evidence was offered in connection with the motion for summary judgment that addressed the issue of what the Does would have learned had they made reasonable inquiry, the record does not permit an award of summary judgment to defendants.”
Id.
In other words, the court in Doe held that, as a matter of law, the decedent was aware that he had been harmed by the infected blood that the defendants furnished to him. What remained as a factual issue was whether the defendants were negligent in furnishing him with infected blood in light of the state of the science of testing blood for HIV and AIDS at the time. Those holdings do not lead to the majority’s rule that, in every case, the obligation to undertake reasonable discovery efforts must be accompanied by evidence of what the plaintiff would have learned if inquiry had been made. Rather, the court’s holding in Doe that an issue of material fact existed was dependent on its particular facts— that is, whether the defendants were negligent depended on the state of the medical science in 1987 with regard to the testing of donated blood for HIV, and therefore a material issue of fact remained that precluded summary judgment.
Here, of course, the facts and the record are different than what existed in Doe. As the majority concedes, there is no “tortious conduct” element in this case.
The majority’s proposition finds no support in Greene either. In that case, the trial court granted summary judgment to the defendant physician in a medical malpractice claim deemed filed in November 14, 1997, and the Supreme Court affirmed. First, the court discouraged the use of the phrase “inquiry notice” with regard to the application of the limitations period in ORS 12.110(4). Greene,
“Doe thus recognizes that the circumstances surrounding an adverse medical outcome might permit a reasonably careful person to discover only the possibility of the defendant’s tortious conduct, rather than its existence and give rise to a duty to inquire. In that circumstance, according to Doe, factual questions about what the plaintiff should have discovered likely will persist until the facts learned as the result of an inquiry would cause a reasonable person to discover that tortious conduct occurred.”
“In contrast to Doe, this case involves no novel principle or procedure of medical science and no uncertainty regarding the state of law. The record contains no other factual assertion that would support a conclusion that a reasonably careful plaintiff might not have discovered Nesler’s [the plaintiffs doctor] tortious conduct from the injury that occurred during surgery. To paraphrase Berry [v. Branner,245 Or 307 ,421 P2d 996 (1966)], plaintiff is not a patient who had no way of immediately ascertaining her injury.”
Based on those facts, the court reasoned:
“But, on the present record, the medical opinion that plaintiff received in March 1997 served only to confirm the discovery of tortious conduct that plaintiff reasonably should have made when she learned, soon after surgery, that the perforations had occurred. In other words, the facts that plaintiff knew regarding her injury did not induce mеre suspicion that might have given rise to a duty to make an inquiry to confirm whether tortious conduct had occurred.”
Id. at 128-29. Quoting from Schiele v. Hobart Corporation,
Finally, even if the “substantial possibility’’ test applies to ORS 30.907, I disagree with the assertion that plaintiff had only a “mere suspicion” that defendants’ products caused his lung disease. First, the majority improperly elevates the “substantial possibility” test under ORS 12.110(4) into the kind of standard that requires a particular degree of persuasive weight. The majority says that “a ‘substantial possibility’’ connotes something less than a preponderance, but still a fairly high level of certainty[.]”
“This is not a case of competing medical opinions. It is a case in which plaintiffstreating physicians consistently expressed uncertainty about the cause of his symptoms. As late as 1994, one of those doctors indicated that the etiology of his symptoms was uncertain. Two other possible causes for his symptoms — exhaust fumes and smoking — were identified. When confronted in 1995 with a report that stated repeatedly that asbestos was not the cause of plaintiffs symptoms, his treating physicians concurred, which was consistent with their earlier and ongoing expressions of uncertainty about the cause ofhis disease. Given that record, we cannot say as a matter of law that plaintiff knew, or reasonably should have known, that there was a considerable likelihood that the cause ofhis disease was asbestos.”
First, the word “likelihood” connotes that an assertion of fact is “more likely than not.” Webster’s defines a ‘likelihood” as a “probability” or as the “appearance of probable success,” id. at 1310. Moreover, the Gaston court could have used the word “likelihood” in lieu of the word “possibility” to describe the test that it was creating, but it obviously chose not to. Rather, it contrasted the phrase “mere suspicion” with the phrase “substantial possibility’ to describe the difference between when the limitations period under ORS 12.110(4) begins and when it does not commence. A “mere suspicion” expresses the possibility that an asserted fact exists but a mere suspicion is just that; there is a lack of evidence to support it. Such a possibility or suspicion becomes “substantial” when the possibility acquires “substance”; that is, when it is supported by evidence and constitutes more than mere conjecture.
Second, no reasonable trier of fact could find based on the ordinary meaning of the phrase that plaintiff had only a “mere suspicion” that defendants’ products caused his disease, given plaintiffs consistent assertions to medical providers as to the cause ofhis disease, the evidence ofhis own physicians’ opinions, and the allegations contained in thе disability claims that he filed. Even the majority implicitly acknowledges that fact when it concedes that plaintiffs doctors presented him “with a number of equally plausible factual explanations” for his disease.
For the above reasons, I dissent.
It makes no difference to the issue of imputed discovery whether plaintiff was unaware of the contents of the medical reports of his physicians. Because the reports were prepared by his own treating doctors, it is reasonable to impute their contents to him to assess whether he had a reasonable opportunity to discover them.
Smith also said regarding plaintiffs decreased lung capacity, “I have no explanation for this reduction other than to say there is no evidence that this is due to asbestosis.” Smith thought it “unlikely” that plaintiffs “exposure wouldbe heavy enough to cause asbestosis.” Rather, according to Smith, plaintiffs history of restrictive lung disease with decreased lung function over many years duration was “most likely simply related to inconsistent, inadequate efforts” on the part of the patient.
I do not wish to appear to be unsympathetic to plaintiffs plight and his disease but we sire charged with the enforcement of statutes of limitation by the legislature who enacted them. It is unlikely that the legislature would have intended that the bar of a limitations period could be avoided by the use of evidence that a plaintiff must controvert to establish liability.
In his deposition, plaintiff was asked whether his doctors told him that his difficulty in breathing was related to asbestos exposure. Plaintiff responded, “No. I mean that he never came out and gave me a diagnosis, no.” Even if plaintiff is correct that his doctors did not expressly tell him that his lung disease was related to asbestos exposure, he admits that he discussed his exposure to asbestos with both Patterson and Kintz and that Patterson told him that he “should get out of the exhaust business.”
Under the majority’s view of the reasonable discovery rule in ORS 30.907, the record must show that, had plaintiff inquired, he would have learned facts sufficient to support his claim to “a high degree of certainty,” or “a considerable degree of likelihood.” See
For purposes of ORS 12.110(4), an “injury” that triggers the commencement of the limitations period consists of “harm,” “causation,” and “tortious conduct.” Gaston,
ORS 12.110(4) provides, in pertinent part, that:
“An action to recover damages for injuries to the person arising from any medical, surgical or dental treatment, omission or operation shall be commenced within two years from the date when the injury is first discovered or in the exercise of reasonable care should have been discovered.”
By way of analogy to ORS 12.110(4), the “tortious conduct” element of ORS 30.907 is found in ORS 30.900 and ORS 30.920. But unlike in medical malpractice claims, a plaintiff need not prove negligence or tortious conduct under those statutes. In fact, the legislature expressly reserved to parties injured by negligence the right to bring a claim based on common-law negligence in ORS 30.920(4), thereby expressing its intention that claims based on negligence and product liability satisfy different requirements.
The court observed, “This, however is not an ordinary case, because of the nascent state of the law and science with respect to HIV and AIDS at the pertinent time.” Doe,
Webster’s defines “substantial” as “something having substance or actual existence.” Id. at 2280.