Fox v. Collins

• Decision Date: 20 June 2007
• Docket Number: A127375.,No. 031011107.,031011107.
• Citation: 162 P.3d 998,213 Or. App. 451
• Parties: Kristina A. FOX, Plaintiff-Appellant, v. Michael COLLINS, M.D. and Legacy Good Samaritan Hospital and Medical Center, Defendants, and Valleylab, Inc. and Genzyme Corporation, fka Snowden Pencer, Inc., Defendants-Respondents.
• Court: Oregon Court of Appeals

162 P.3d 998

213 Or. App. 451

Kristina A. FOX, Plaintiff-Appellant, v. Michael COLLINS, M.D. and Legacy Good Samaritan Hospital and Medical Center, Defendants, and Valleylab, Inc. and Genzyme Corporation, fka Snowden Pencer, Inc., Defendants-Respondents.

No. 031011107.

A127375.

Court of Appeals of Oregon.

Argued and Submitted June 15, 2006.

Decided June 20, 2007.

Robert K. Udziela, Portland, argued the cause and filed the briefs for appellant.

Susan D. Marmaduke, Portland, argued the cause for respondent Genzyme Corporation. With her on the brief was Harrang Long Gary Rudnick PC.

Margaret Hoffmann, Stephen C. Bush, and Schwabe, Williamson & Wyatt, P.C., Portland, filed the brief for respondent Valleylab, Inc.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM, Judges.

ARMSTRONG, J.

Plaintiff appeals from a limited judgment dismissing for a second time her product liability claims against defendants Genzyme Corporation and Valleylab, Inc. Plaintiff, whose claims against those defendants had previously been dismissed as time barred, refiled her claims under a special "revival" statute enacted by the legislature in 2003. The trial court concluded that that statute was unconstitutional and dismissed plaintiff's claims against defendants with prejudice. We reverse and remand.

Before relating the facts of this case, a brief discussion of the evolution of the statute of limitations for product liability claims is helpful. The limitations period for bringing product liability claims is set forth in ORS 30.905(2). Prior to changes made by the 2003 Legislative Assembly (discussed below), that statute provided, in part, that "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." ORS 30.905(2) (2001). On June 8, 2001, the Oregon Supreme Court held that the two-year limitation period contained in ORS 30.905(2) (2001) began to run when the "death, injury or damage complained of" occurred, regardless whether the plaintiff discovers the harm within that two-year period. Gladhart v. Oregon Vineyard Supply Co., 332 Or. 226, 234, 26 P.3d 817 (2001) (internal quotation marks omitted). Consequently, actions filed after Gladhart were time barred if they were not brought within two years of the date of injury, even if the plaintiff could not have discovered the injury within that time.

In 2003, in response to Gladhart, the legislature enacted HB 2080, which, among other things, established that the statute of limitations for a product liability civil action for personal injury or property damage begins to run when the plaintiff first discovers or, in the exercise of reasonable care, should have discovered that the injury or other damage complained of exists and was the result of a product defect. Or. Laws 2003, ch. 768, § 1. Specifically, section 1 of the bill amended ORS 30.905(2) to read:

"Except as provided in ORS 30.907 and 30.908(1) to (4), a product liability civil action for personal injury or property damage must be commenced not later than the earlier of:

"(a) Two years after the date on which the plaintiff discovers, or reasonably should have discovered, the personal injury or property damage and the causal relationship between the injury or damage and the product, or the causal relationship between the injury or damage and the conduct of defendant; or

"(b) Ten years after the date on which the product was first purchased for use or consumption."

Or. Law 2003, ch. 768, § 1 (emphasis added). Section 2 of the bill (the revival statute) addressed the effective date of the changes; it also revived claims that had been previously dismissed as untimely. It provided:

"(1) Subject to the provisions of this section, the amendments to ORS 30.905 by section 1 of this 2003 Act apply only to deaths, personal injuries or property damage that occurs on or after the effective date of this 2003 Act.

"(2) The amendments to ORS 30.905 by section 1 of this 2003 Act revive a cause of action for which a civil action for death, personal injury or property damage was filed before the effective date of this 2003 Act if:

"(a) The civil action was filed within the time provided by ORS 30.905 as amended by section 1 of this 2003 Act;

"(b) The civil action was adjudicated based on the provisions of ORS 30.905 as in effect immediately before the effective date of this 2003 Act; and

"(c) A final judgment was entered in the civil action on or after June 8, 2001, and before the effective date of this 2003 Act.

"(3) A civil action based on a cause of action revived by subsection (2) of this section must be refiled within one year after the effective date of this 2003 Act."

Or. Laws 2003, ch. 768, § 2, compiled as a note after ORS 30.905 (2003). The effective date of the bill was January 1, 2004.

With that background in mind, we turn to the facts of this case, which are not in dispute. On October 5, 2000, plaintiff brought a complaint for medical malpractice against Dr. Michael Collins and Legacy Good Samaritan Hospital and Medical Center for injuries that allegedly arose out of a laparoscopic surgery performed on October 5, 1998.¹ On December 4, 2000, more than two years after the date of the alleged injury, plaintiff amended her complaint, adding product liability claims against defendants.

Defendants each subsequently moved for summary judgment, asserting that plaintiff's product liability claims were time barred under ORS 30.905(2) (2001). The court agreed and entered separate judgments for each defendant, dismissing with prejudice all of plaintiff's claims against them. Those judgments were entered on March 7, 2002, and May 7, 2002, respectively. Plaintiff did not appeal either judgment.

Plaintiff's claims against Collins and Legacy Good Samaritan Hospital were then voluntarily dismissed without prejudice pursuant to a "Stipulated Judgment of Dismissal and Order of Dismissal," filed by those parties and approved by the court on September 18, 2002.² The judgment dismissed the case without prejudice and set forth plaintiff's agreement with those defendants that she would be allowed to refile her complaint against them within certain time limits connected to the 2003 legislative session. The parties expressly agreed that the stipulated judgment would have the effect of a judgment of dismissal with prejudice if plaintiff did not refile within the time limits specified.

Plaintiff refiled her complaint on October 14, 2003, within the time constraints of the stipulated judgment, but before HB 2080 took effect. The complaint included the identical product liability claims against defendants that had earlier been dismissed by summary judgment; however, she did not serve that complaint on defendants. On December 4 2003, plaintiff filed a first amended complaint; she served defendants with that amended complaint on January 6, 2004.

On February 5, 2004, defendants moved for summary judgment against plaintiff, arguing that the legislature's attempt in 2003 to revive final judgments under ORS 30.905 violated the separation of powers doctrine of the Oregon Constitution and that claim preclusion therefore barred plaintiff from further litigating those claims. The trial court agreed that the revival statute was "an unconstitutional violation of separation of powers under Oregon law" and entered a limited judgment dismissing plaintiff's revived product liability claims against defendants with prejudice.³ Plaintiff appeals from that judgment.

We review the trial court's grant of summary judgment for legal error. Northwest Advancement v. Bureau of Labor, 96 Or.App. 133, 145, 772 P.2d 934, rev. den., 308 Or. 315, 779 P.2d 618 (1989), cert. den., 495 U.S. 932, 110 S.Ct. 2172, 109 L.Ed.2d 501 (1990).

On appeal, plaintiff asserts that the trial court erred in holding the revival statute unconstitutional. She argues that the Oregon Supreme Court's decision in McFadden v. Dryvit Systems, Inc., 338 Or. 528, 112 P.3d 1191 (2005), decided after the trial court's ruling on summary judgment in this case, firmly disposes of the constitutional issue in plaintiff's favor. In response, defendants argue that McFadden was incorrectly decided and, in any event, that the case is not controlling because its holding that the revival statute does not violate the separation of powers provision of the Oregon Constitution was "advisory" only and thus is merely dictum.

In McFadden, the plaintiffs attempted, under the authority of the revival statute, to revive their product liability claims against the defendant. Those claims had originally been removed from state court to the United States District Court for the District of Oregon and then dismissed as time barred under the version of ORS 30.905 then in effect. The defendant claimed that the Oregon legislature's revival of a dismissed product liability claim violated the separation of powers provisions of the Oregon Constitution. The federal court certified that question to the Oregon Supreme Court, which held that the 2003 amendments did not violate the separation of powers provisions in Article III, section 1, and Article VII (Amended), section 1, of the Oregon Constitution.⁴

McFadden, 338 Or. at 540-41, 112 P.3d 1191. Relying on State ex rel Huntington v. Sulmonetti, 276 Or. 967, 557 P.2d 641 (1976), the court concluded, in part:

"As in Sulmonetti, the 2003 amendment to ORS 30.905 reviving certain claims does not effectively set aside the courts' initial determination as to those claims. Those rulings remain final as to the law then existing. Rather, the amendment merely constitutes a legislative determination that the earlier version of the statute did not provide certain litigants with a fair opportunity to discover and pursue their claims. As was the case in Sulmonetti, it is undisputable that the legislature would have had the authority to include a `discovery rule' in the product liability sta...