Dortch v. A. H. Robins Co., Inc.

Decision Date15 September 1982
Docket NumberNo. A8009-05162,A8009-05162
Citation650 P.2d 1046,59 Or.App. 310
PartiesMadeline DORTCH, Appellant, v. A. H. ROBINS CO., INC., Respondent. ; CA A21613.
CourtOregon Court of Appeals
Frank J. Susak, Portland, argued the cause and filed the brief for appellant

Steven K. Blackhurst, Portland, argued the cause for respondent. On the brief were Rick T. Haselton, Steven K. Blackhurst and Lindsay, Hart, Neil & Weigler, Portland.

Before BUTTLER, P. J., and WARREN and ROSSMAN, JJ.

WARREN, Judge.

Plaintiff brought this product liability action seeking damages for personal injuries allegedly caused by a Dalkon Shield intrauterine birth control device, manufactured and sold by defendant. Defendant moved for judgment on the pleadings under ORCP 21 B, on the ground that ORS 30.905, the applicable statute of limitations, barred the claim. The trial court allowed the motion and entered judgment for defendant. Plaintiff appeals. We affirm.

The facts before us are those alleged in the complaint. On or about May 1, 1971, a Dalkon Shield was inserted in plaintiff for the purpose of birth control. From 1972 through 1976, she suffered chronic intrauterine infections causing a build-up of scar tissue in her left fallopian tube. This condition resulted in a tubal pregnancy, requiring an ectopic tubal abortion December 1, 1977. On December 4, 1977, plaintiff underwent a tubal ligation to prevent further tubal pregnancies. As a consequence of this procedure, she can no longer bear children.

Plaintiff alleged that these injuries were caused by the Dalkon Shield and that this device "was unreasonably dangerous as a product * * * due to its basic design * * *." She further alleged that she "did not learn, nor did she have reason to learn, of the relationship between the defective nature of the [product] and her [physical injury] * * * until * * * about May 1, 1980." The complaint was filed September 11, 1980; i.e., the action was commenced approximately nine years and four months from the date the Dalkon Shield was purchased and two years and nine months from the date of the tubal ligation. 1

The parties agree that the applicable statute of limitations is ORS 30.905, which provides as follows:

"(1) Notwithstanding ORS 12.115 or 12.140 and except as provided in subsection (2) of this section, a product liability civil action shall be commenced not later than eight years after the date on which "(2) A product liability civil action shall be commenced not later than two years after the date on which the death, injury or damage complained of occurs."

the product was first purchased for use or consumption.

Plaintiff contends that this statute does not bar the action, relying on our holding in Baird v. Electro Mart, 47 Or.App. 565, 615 P.2d 335 (1980), that a product liability action is not barred by ORS 30.905(1), although commenced more than eight years after the date of purchase, as in this case, so long as the following requirements are met: (1) the injuries were sustained within eight years of the product's purchase; (2) the action was brought within ten years of the product's purchase; and (3) the requirements of ORS 30.905(2) are met.

Plaintiff does not dispute that her action would be barred if the two-year limitation of ORS 30.905(2) began to run on December 4, 1977, the date of the tubal ligation, which was the last injury alleged to have been caused by the Dalkon Shield. She contends, however, that ORS 30.905(2) does not bar the action, because the "discovery doctrine" recognized in Schiele v. Hobart Corporation, 284 Or. 483, 587 P.2d 1010 (1978), delays the accrual of a cause of action in a product liability case until the date on which the plaintiff discovered or should have discovered that defendant's product had caused her injuries; and that "this extension is subject only to the ten-year period of ultimate repose" provided by ORS 30.905.

Defendant responds that the filing of this action complies with neither subsection (1) nor subsection (2) of ORS 30.905, because the action was filed more than eight years from the date of purchase and more than two years from the date of injury. Defendant argues that the language and the legislative history of ORS 30.905(2) preclude recognition of a discovery rule, 2 but that, even We conclude that, although Schiele v. Hobart Corporation, supra, was decided under another statute of limitations, a discovery rule does apply to product liability actions. We conclude, however, the discovery rule does not operate to extend the eight-year statute as will be discussed below.

if a discovery [59 Or.App. 314] rule were to be applied, this claim would still be barred, because the "injury" would not have occurred until plaintiff learned of its cause in May, 1980, nine years after the date of purchase. In other words, defendant contends that, if a discovery rule is applied, the date of the injury's occurrence should be interpreted to mean the date of discovery, and that our holding in Baird v. Electro Mart, supra, requires that such discovery take place within eight years of the date of purchase, with the result that this action is barred.

We agree with plaintiff that, notwithstanding the provisions of ORS 30.905(1), a product liability action filed more than eight years after the date of purchase is not necessarily barred by ORS 30.905. On its face, ORS 30.905 appears to require that product liability actions be commenced, i.e. filed, no later than eight years after the date of purchase and within that period, no more than two years after the occurrence of the injury. Under such construction, a plaintiff injured by a product on the last day of the sixth year would have two years to file a complaint. A plaintiff injured after that time, but still within eight years, would have less time, but in no event more than eight years after the purchase in which to file a complaint. That construction was rejected in Baird v. Electro Mart, supra.

In Baird, we decided that, despite the legislative language, it was clear that the drafters of ORS 30.905 intended a result consistent with a policy to limit a manufacturer's liability exposure to a ten-year period and to afford all plaintiffs injured within that period a two-year period of time in which to commence an action. In Baird we stated:

" * * * The committee determined, as a policy matter, that it wished to limit the manufacturer's exposure to a ten-year period. After extensive discussion the committee adopted the following motion:

" 'THE QUESTION WAS CALLED ON REP. RUTHERFORD'S MOTION TO REDUCE THE PERIOD OF ULTIMATE REPOSE TO 8 YEARS FROM THE DATE OF FIRST PURCHASE FOR USE OR CONSUMPTION AND TO PROVIDE A 2 YEAR LIMITATION FOR OCCURRENCE OR LIABILITY THAT OCCURRED IN THE 8 YEAR PERIOD.' Minutes, House Committee on Judiciary, May 16, 1977.

"It is clear that the committee intended that if an injury occurred within the eight-year period the injured party would have two years from the date of the injury to commence the action. * * *

" * * *

"It is clear from the discussions of House Bill 3039, which became ORS 30.905, what the legislative objective was. The legislature wanted to enact a ten-year period of ultimate repose for product liability actions comparable to the period set out in ORS 12.115. The committee discussions indicate this objective was to be accomplished by providing that if an injury occurred within eight years of the date the product was first purchased In Baird, the injury and the plaintiff's discovery of the defendant's causal connection with the injury were simultaneous. We therefore had no occasion to define or construe the term "injury" or to discuss the significance of that term in the context of a case in which a physical injury occurs within eight years of the date of purchase, but defendant's causal involvement is not discovered until after that period. In the context of Baird, the "injury" referred to was an actionable injury, i.e., its causal connection with the defendant was known. The key to the resolution of this case does not turn, as plaintiff claims, upon whether a discovery rule applies to product liability actions. It turns instead upon our determination of when an injury occurs for the purposes of analyzing statutes of limitation.

the injured party had an additional two-year period following the injury to bring the action. That two-year period was characterized as a 'grace period' by the committee. * * * Accordingly, we hold that ORS 30.905 allows commencement of an action for injury based on product liability within two years of the injury complained of if the injury occurred within eight years of the first purchase of the product for use or consumption. * * * " 47 Or.App. at 570, 572, 615 P.2d 335.

In determining when the injury occurred, we start with the proposition that ordinarily the terms of a statute are construed in accordance with their plain or common meaning. See Satterfield v. Satterfield, 292 Or. 780, 643 P.2d 336 (1982); Perez v. State Farm Mutual Ins. Co., 289 Or. 295, 299, 613 P.2d 32 (1980). However, if the terms of the statute have a well-defined legal meaning, the court should give the terms that meaning. State v. Dumond, 270 Or. 854, 858, 530 P.2d 32 (1974). The "date on which the * * * injury * * * complained of occurs" would appear to have a "common meaning"; however, as recent decisions by the Supreme Court and this court demonstrate, such language in statutes of limitation has also been held to have a "legal meaning."

As observed in Shaughnessy v. Spray, 55 Or.App. 42, 48-49, 637 P.2d 182 (1981), rev. den. 292 Or. 589, 644 P.2d 1130 (1982):

"The tendency of the Supreme Court and this court in recent years has been to interpret statutes of limitations as commencing to run at the time of the plaintiff's reasonable discovery of the defendant's causal involvement. * * *." (Citing Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d...

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