Keller v. Armstrong World Industries, Inc.

• Decision Date: 09 February 2005
• Citation: 107 P.3d 29,197 Or. App. 450
• Court: Oregon Court of Appeals
• Parties: Lawrence KELLER and Patricia Keller, Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC., et al, Defendants, and Borg-Warner Automotive, Inc., a Delaware corporation, fka Borg-Warner Corporation, individually and as successor-in-interest to Borg-Warner Corporation — Borg & Beck Division, and Borg-Warner Corporation — Rockford Clutch Division; and Tenneco Automotive Operating Company, Inc., a Delaware corporation, Respondents.

107 P.3d 29

197 Or. App. 450

Lawrence KELLER and Patricia Keller, Appellants, v. ARMSTRONG WORLD INDUSTRIES, INC., et al, Defendants, and Borg-Warner Automotive, Inc., a Delaware corporation, fka Borg-Warner Corporation, individually and as successor-in-interest to Borg-Warner Corporation — Borg & Beck Division, and Borg-Warner Corporation — Rockford Clutch Division; and Tenneco Automotive Operating Company, Inc., a Delaware corporation, Respondents.

0010-10816; A117518.

Court of Appeals of Oregon, En Banc.

Argued and Submitted October 14, 2003.

Resubmitted October 27, 2004.

Decided February 9, 2005.

Lloyd F. Leroy, Novato, CA, argued the cause for appellants. On the opening brief were Robyn L. Stein, Diane Abraham, Novato, CA, Gil Purcell, and Brayton Purcell, Novato, CA, and on the reply brief were Elaine J. Brown, Robyn L. Stein, Jon M. Egan, Gil Purcell, and Brayton Purcell.

Alan Gladstone, Portland, argued the cause for respondent Borg-Warner Automotive, Inc., and Thomas W. Sondag, Portland, argued the cause for respondent Tenneco Automotive Operating Company, Inc. With them on the joint brief were Abbott, Davis, Rothwell, Mullin & Earle, P.C., and Lane Powell Spears Lubersky LLP.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, and ORTEGA, Judges, and DEITS, Judge pro tempore.

Resubmitted En Banc October 27, 2004.

DEITS, J. pro tempore.

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.¹ The trial court held that the claims were barred by ORS 30.907, the applicable statute of limitations. We reverse.

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., 325 Or. 404, 420, 939 P.2d 608 (1997). Plaintiff worked as a automobile mechanic beginning the early 1960s. He specialized in muffler and exhaust work; part of the time he owned a small muffler business. Defendants Borg-Warner Automotive, Inc., and Tenneco Automotive Operating Company, Inc., manufactured or supplied some of the mufflers on which plaintiff worked.² During the time period when plaintiff worked on mufflers, it was common for mufflers to be wrapped in asbestos. As a result, plaintiff was exposed to asbestos when he replaced old, crumbling mufflers. He also worked for a company that made mufflers. Part of his job involved cutting sheets of asbestos and wrapping them around muffler cores, again exposing him to asbestos fibers. In addition, plaintiff was exposed to exhaust fumes on the job and was a smoker.

In the early 1980s, plaintiff began experiencing shortness of breath. In 1986, he saw Dr. Patterson, a pulmonologist, 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 exposure 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 plaintiff's 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.³ According to plaintiff, his lung capacity had been decreasing and an x-ray in 1992 showed "black spots" in his left lung. In November 1992, Kintz wrote a short statement supporting plaintiff's claim, stating that plaintiff's condition satisfied the criteria for disability for a patient with pulmonary fibrosis. Kintz did not, however, indicate a cause of that condition.

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 "[i]nterstitial lung disease, etiology uncertain[.]" He reviewed plaintiff's 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 asbestos bodies and, in connection with plaintiff's chest x-ray, "[n]o changes pathognomic of asbestos exposure are noted." He further noted that, three weeks before the evaluation, plaintiff had again quit smoking. In the conclusion of his report, Patterson noted that "the importance of continuing without cigarettes was emphasized."

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 plaintiff's medical records and chest X-rays spanning a 20-year period and performed a number of additional tests. He concluded that plaintiff's 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 characterized 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.⁴

In 2000, Dr. Schaumberg, a pulmonologist, reviewed CT scans of plaintiff's chest performed in August and November 1999, as well as the results of plaintiff's pulmonary function tests. In a letter to plaintiff's 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 action for asbestos-related disease must 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." The parties do not dispute that plaintiff had symptoms before 1998. Accordingly, the sole issue is whether plaintiff discovered, or should have discovered, before October 23, 1998, that those symptoms were related to asbestos. According to defendants, plaintiff discovered, or should have discovered, that his symptoms were related to asbestos before that date. Plaintiff argues the contrary. According to plaintiff, the most the medical evidence from before 1998 revealed was that he had lung disease. In plaintiff's view, the evidence demonstrates that the cause of that disease was uncertain. According to plaintiff, all that he and his...