Plaintiff brought this action for battery against a medical response business and its parent company, as well as a paramedic employed by the business, asserting that the paramedic had committed a battery upon her by touching her sexually during an ambulance transport. Defendants moved for summary judgment, and the trial court granted their motion on two independent grounds: (1) that plaintiffs claim was barred by the applicable statute of limitations; and (2) that plaintiff had failed to raise a genuine issue of material fact as to occurrence of the battery, which she could not remember. Plaintiff appeals, and we reverse and remand.
Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. ORCP 47 C. There is no genuine issue of material fact if, based upon the record, “no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment;” Id. In determining whether a genuine factual dispute exists, we review the record in the light most favorable to the nonmoving party — here, plaintiff — and draw all reasonable inferences in her favor. Jones v. General Motors Corp.,
On January 25, 2006, American Medical Response Northwest (AMR) transported plaintiff by ambulance to a hospital following her complaint of shortness of breath. During plaintiff’s transport, the ambulance staff consisted of a driver and a paramedic, Lannie Haszard, who accompanied plaintiff in the back of the ambulance. Plaintiff has no recollection of that trip. After the ambulance arrived at the hospital, an attendant undressed plaintiff while Haszard stood by and stared, panting and becoming aroused.
When plaintiff left the hospital, she “had a great sense of being unclean,” and she “showered for a long time.” About one month later, plaintiff returned a customer survey form to AMR indicating that she had
In December 2007, plaintiff learned that Haszard had been charged with sexually assaulting women during other ambulance transports. The following year, Haszard pleaded guilty to five counts of attempting to commit sexual abuse, and additional women came forward with allegations that Haszard had been sexually inappropriate toward them during ambulance rides. In November 2009, plaintiff filed suit against Haszard,
Defendants moved for summary judgment on two grounds: first, that plaintiff had failed to raise a genuine issue of material fact because she had no memory of the alleged battery, and, second, that plaintiff was barred by a two-year statute of limitations from bringing a cause of action for an incident that had occurred almost four years earlier. ORS 12.110(1). In response, plaintiff submitted an affidavit from her attorney pursuant to ORCP 47 E stating that an expert had been retained whose testimony would create issues of fact. More specifically, the affidavit stated that the expert was prepared to testify that plaintiff had been
“subjected to a traumatic event during her AMR ambulance ride on January 25, 2006, that the event involved sexual touching by Lannie Haszard, and that the lack of memory of the event exhibited by [plaintiff was] the result of the aforementioned amnesia caused by the trauma of the event.”
Plaintiff asserted that the ORCP 47 E affidavit alone was sufficient to create an issue of material fact. In addition, plaintiff argued that the applicable two-year statute of limitations had been tolled by application of the “discovery rule,”
The trial court accepted both of defendants’ arguments. Regarding evidence of battery, the court held that plaintiff had failed to raise a genuine issue of material fact because “Plaintiff cannot establish a claim based solely on the [ORCP] 47 E affidavit when Plaintiff acknowledges she has no memory of a battery.” The trial court also agreed with defendant that plaintiff’s claim was time barred, observing that battery claims are governed by a two-year statute of limitations, ORS 12.110(1), and concluding that the discovery rule does not apply to those claims.
On appeal, plaintiff challenges both aspects of the trial court’s ruling in defendants’ favor. First, she contends that the trial court erred in ruling that her battery claim was time barred. According to plaintiff, the discovery rule applies to actions for battery and, therefore, the statutory two-year limitations period did not begin to run on her claim until she discovered her injury in December 2007, making her November 2009 complaint timely. Second, plaintiff argues that the trial court erred in ruling that she had not submitted evidence creating a genuine issue of material
We first address whether defendants were entitled to summary judgment on the ground that plaintiff’s battery claim was untimely. The two-year statute of limitations found in ORS 12.110(1) describes the time within which a battery claim must be filed:
“An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.”
(Emphases added.) Pursuant to ORS 12.010, the statutory period begins to run only after the cause of action has “accrued.”
The meaning of the word “accrued” in ORS 12.010 has been the subject of much analysis in Oregon cases. The seminal case remains Berry v. Branner,
“When used with reference to a cause of action it means when an action may he maintained thereon. It accrues whenever one person may sue another. The cause of action must necessarily accrue to some person or legal entity. To say that a cause of action accrues to a person when she may maintain an action thereon and, at the same time, that it accrues before she has or can reasonably be expected to have knowledge of any wrong inflicted upon her is patently inconsistent and unrealistic. She cannot maintain an action before she knows she has one.”
Id. at 312 (ciations omitted; emphasis in original).
Because the Berry plaintiff, “by the very nature of the treatment had no way of immediately ascertaining [her] injury,” the court explained, the same definitive two-year limitations period “that is allowed for bringing other tort actions that are normally immediately ascertainable upon commission of the wrong” should not apply. Id. Rather, the court concluded, “the cause of action accrued at the time plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by defendant.” Id. at 315-16.
That ultimate holding in Berry has come to be known as the “discovery rule,” that is, the principle that statutes of limitations — at least for certain causes of action —
Plaintiff’s claim for battery is a claim related to personal injury in the sense of bodily harm. Accordingly, Berry and the other cases cited above suggest that the discovery rule should apply to her claim. Nonetheless, defendants argue that the discovery rule does not apply here for two reasons: (1) the text of ORS 12.110(1) does not create a discovery rule for battery claims and (2) the discovery rule articulated in Berry and its progeny is inapplicable to battery claims because those claims are “inherently discoverable.” We address those two assertions in turn.
According to defendants, the “plain text” of ORS 12.110(1) forecloses a discovery rule for battery claims. That is so, they argue, because the second clause in the statute, which applies to actions for fraud and deceit, introduces a discovery rule, but the first clause, which applies to an action for battery, does not, and that omission was deliberate:
“An action for assault, battery, false imprisonment, or for any injury to the person or rights of another, not arising on contract, and not especially enumerated in this chapter, shall be commenced within two years; provided, that in an action at law based upon fraud or deceit, the limitation shall be deemed to commence only from the discovery of the fraud or deceit.”
ORS 12.110(1) (emphasis added). However, defendants’ plain-text argument is precluded by the Supreme Court’s analysis and holding in Berry. There, the court rejected the argument that the legislature had deliberately adopted the discovery rule in ORS 12.110(1) as to actions for fraud and deceit, but not with respect to personal injury claims. Berry,
Nor are we persuaded by defendants’ argument that the discovery rule does not
Focusing on our previous discussions of the types of injuries that may be deemed “inherently discoverable,” defendants contend, essentially, that battery is a tort that is “inherently discoverable” as a matter of law: “it must be the case that a ‘reasonably prudent plaintiff’ knows when he or she is being battered.” That argument cannot be reconciled with the recent decision in Doe, in which the Supreme Court considered whether the “plaintiffs’ allegations that [a teacher] fondled their genitals in and before 1984 require [d] the conclusion that their battery claims accrued by that date.”
The question remains whether application of the discovery rule will result in the statutory limitations period being tolled in this case. In response to defendants’ summary judgment motion, plaintiff offered evidence that she reasonably did not immediately discover that she had been sexually battered in the ambulance because she suffers from traumatic amnesia caused by that battery. Whether plaintiff does in fact suffer from traumatic amnesia is a question of fact for a jury, as is the question whether, notwithstanding any such amnesia, plaintiff reasonably should have discovered the alleged
We turn to the second basis on which the trial court granted summary judgment to defendants, i.e., that plaintiff “cannot establish a claim based solely on the [ORCP] 47 E affidavit when [plaintiff] acknowledges she has no memory of a battery.” As noted, plaintiff argues on appeal that the ORCP 47 E affidavit that her attorney submitted was enough to overcome defendants’ summary judgment motion. That affidavit by counsel stated, in material part:
“A qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating questions of fact, which, if revealed by affidavit, would be a sufficient basis for denying summary judgment, as to all issues of fact raised by the defendants.
“Without in any way limiting the effect of the above language, plaintiff wishes to advise the Court that the expert is prepared to testify that to the appropriate standard of reasonable probability within the standards of the relevant profession that [plaintiff] was subjected to a traumatic event during her AMR ambulance ride on January 25, 2006, that the event involved sexual touching by Lannie Haszard, and that the lack of memory of the event exhibited by [plaintiff] is the result of the aforementioned amnesia caused by the trauma of the event.”
Plaintiff contends that the affidavit was enough, standing alone, to create a genuine issue of material fact about the occurrence of a battery. In addition, plaintiff points to other evidence in the record, including evidence of Haszard’s assaults of other women, of Haszard’s behavior toward her at the hospital, of her amnesia, and of the post-hospitalization symptoms she suffered, including obsessively washing herself and experiencing nightmares about Haszard. Plaintiff characterizes that evidence as “circumstantial evidence of her abuse by Mr. Haszard” and contends that, alone or in combination with the ORCP 47 E affidavit, it created a genuine issue of material fact sufficient to go to a jury.
Defendants raise several points in response. First, defendants disparage plaintiff’s current allegations of battery, asserting that they conflict with her earlier failure to report any sexual touching or amnesia. Defendants do not, however, explain why that alleged conflict should lead us to conclude that the record includes no competent evidence supporting plaintiff’s battery claim. We conclude, to the contrary, that the record poses a quintessential jury question if it includes evidence both that plaintiff was battered by Haszard and that she has no recollection of the event. It is for the jury to resolve any tension that some factfinders might perceive in that evidence. We also reject any suggestion that a plaintiff’s inability to recall having been injured is a per se bar to prevailing on an associated tort claim. Some tort victims may not recall having been injured — because, for example, they were unconscious or suffered cognitive limitations at the time — but that does not mean that the tortious injury cannot be proved through evidence other than the plaintiffs’ testimony.
Second, defendants contend that plaintiff’s ORCP 47 E affidavit does not create a genuine factual issue because such an affidavit “permits the trial court to find an issue of fact on an element of a claim only where expert testimony is ‘required’ to prove it.” Defendants argue that expert testimony is not “required” to prove the existence of a battery, because whether a battery occurred “is a purely factual and historical question involving lay testimony” and “involves no complex or scientific considerations that are beyond a lay juror’s competence.”
Defendants are correct that, as a general matter, the filing of an ORCP 47 E affidavit “precludes summary judgment only where expert opinion evidence is required to establish a genuine issue of material fact.” DeBerry v. Summers,
Third, defendants argue that the expert affidavit is inadmissible in this case under State v. Southard,
Here, contrary to defendants’ contentions, the ORCP 47 E affidavit does not raise the concerns underpinning the Supreme Court’s decision in Southard. Simply stated, on this record, we cannot say that the expert’s opinion is based primarily on an assessment of plaintiff’s credibility or that it is not based on some physical evidence of the battery. For that reason, we reject defendant’s argument that the ORCP 47 E affidavit is not admissible in response to defendants’ summary judgment motion, and therefore, could not create a genuine issue of material fact.
Fourth, defendants appear to suggest that the expert affidavit is either inadmissible or insufficient to create a genuine issue of fact because it does not explain the basis on which the expert concluded that plaintiff suffers from traumatic amnesia caused by a battery in the ambulance. But defendants cite no authority to support their contention that an ORCP 47 E affidavit must include that level of detail, and we are not aware of any. To the contrary, under ORCP 47 E, an attorney’s affidavit creates a genuine factual dispute if it states “that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact” if the expert “has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment.” ORCP 47 E (emphasis added). The emphasized part of the rule makes clear that the actual opinion or facts to which the expert eventually will testify need not be revealed at the time of summary judgment proceedings. See generally Piskorski v. Ron Tonkin Toyota, Inc.,
Finally, and in conjunction with their complaint about the lack of explanation in the affidavit by plaintiff’s counsel, defendants
In short, we are not persuaded by defendants’ arguments that plaintiff’s ORCP 47 E affidavit is inadmissible or, if admissible, insufficient to create a genuine issue of material fact. Particularly in combination with evidence about Haszard’s sexually offensive behavior following the ambulance ride, and evidence that plaintiff does not recall the transport but subsequently has experienced nightmares about Haszard and obsessive feelings of uncleanliness, the affidavit creates a genuine dispute of fact regarding whether Haszard battered plaintiff in the ambulance.
In the end, defendants express frustration at their inability “to discover or learn any facts relating to how Plaintiff was allegedly touched by Mr. Haszard until Plaintiff’s expert takes the stand in trial.” (Emphasis in original.) That frustration may be understandable, but it is the result of ORCP 47 E’s clear mandate that parties litigating summary judgment motions need provide only very limited information about the expert opinions on which they intend to rely at trial. The rule itself explains that it is not to be used “to obtain the names of potential expert witnesses or to obtain their facts or opinions.” ORCP 47 E (emphasis added). Rather, under the rule, plaintiff could defeat defendants’ summary judgment motion by submitting an attorney’s affidavit stating that an unnamed expert had been retained who was willing to testify to facts or opinions that, if revealed, would create a genuine factual dispute. The affidavit in this case meets that standard, and the trial court erred when it granted summary judgment to defendants.
Reversed and remanded.
Notes
Plaintiff later voluntarily dismissed Haszard from this case.
Specifically, plaintiff alleged in her complaint that “Lannie Haszard touched and violated [her] in and around her sexual areas, deliberately and without lawful justification.”
We explain the “discovery rule” in more detail later in this opinion. In short, that rule embodies the principle that certain statutes of limitations do not begin to run until the plaintiff discovers, or reasonably should have discovered, “both the injury and the role that the defendant has played in that injury.” T. R. v. Boy Scouts of America,
“Actions shall only be commenced within the periods prescribed in [ORS chapter 12], after the cause of action shall have accrued, except where a different limitation is prescribed by statute.” ORS 12.010.
Medical malpractice claims then were classified as claims “for any injury to the person * * * not arising on contract” to which a two-year limitations period applied. ORS 12.110(1) (1957); see Berry,
The expectation that a plaintiff reasonably should discover the existence of an injury at a certain time serves to impose a duty of inquiry. See T. R.,
We recognize that Doe might be read to stand for the broad principle that the discovery rule always applies to battery claims, whether brought against public entities or private defendants. The opinion does not expressly state that rule, however, and instead cites another OTCA case for the principle that the discovery rule applied to the claim in Doe, in which the defendant was a public school district. Doe,
The cases in which we have held flatly that no discovery rule applies either have not involved tort claims subject to the ORS 12.110(1) two-year limitations period — e.g., Waxman v. Waxman & Associates, Inc.,
Our holding is confined to whether the ORCP 47 E affidavit was admissible for purposes of plaintiff’s opposition to the summary judgment motion. Once the details of, and bases for, the expert opinion are revealed, it may be that defendants will have grounds to argue against the admissibility of that opinion at trial.
Because we conclude that the evidence described above is sufficient to create an issue of fact for a jury, we do not address defendants’ contention that additional evidence that plaintiff offered, concerning Haszard’s assaults of other women, is “other bad acts” evidence that is inadmissible under OEC 404(3). The evidence regarding Haszard’s behavior toward other women plays no part in our analysis.