Shaughnessy v. Spray

• Decision Date: 07 December 1981
• Docket Number: No. A7905-02395,A7905-02395
• Citation: 637 P.2d 182,55 Or.App. 42
• Parties: Nancy SHAUGHNESSY, Personal Representative of the Estate of Brian Shaughnessy, Deceased, Appellant, v. Charles SPRAY, M.D., Defendant, Smith, Kline & French Laboratories, a division of Smith Kline Corporation, a Pennsylvania corporation, and Eli Lilly and Company, an Indiana corporation, Respondents. ; CA 19275.
• Court: Oregon Court of Appeals

Page 182

637 P.2d 182

55 Or.App. 42

Nancy SHAUGHNESSY, Personal Representative of the Estate of Brian Shaughnessy, Deceased, Appellant, v. Charles SPRAY, M.D., Defendant Smith, Kline & French Laboratories, a division of Smith Kline Corporation, a Pennsylvania corporation, and Eli Lilly and Company, an Indiana corporation, Respondents.

No. A7905-02395; CA 19275.

Court of Appeals of Oregon, In Banc.

Argued and Submitted July 22, 1981.

Resubmitted In Banc Oct. 7, 1981.

Decided Dec. 7, 1981.

Dana R. Taylor, Portland, argued the cause and filed briefs for appellant.

Rick T. Haselton, Portland, argued the cause for respondent Smith, Kline & French Laboratories. With him on brief were Jerard S. Weigler, and Lindsay, Hart, Neil & Weigler, Portland.

Jeffrey M. Batchelor, Portland, argued the cause for respondent Eli Lilly and Co. With him on brief were James H. Clarke, James E. Bartels, and Spears, Lubersky, Campbell & Bledsoe, Portland.

RICHARDSON, Judge.

Plaintiff appeals the trial court's dismissal of her action against two of the three defendants in this wrongful death case. She contends that the court erred in (1) dismissing her first amended complaint on the ground it was filed without leave of court or the adverse party's consent, in violation of ORCP 23A; ¹ and (2) dismissing her second amended complaint as to the two defendants on the ground that it was not filed within the three year limitation period under the wrongful death statute. ² We reverse.

Plaintiff alleges that her son died on May 23, 1977, as a result of an overdose of a medication prescribed by defendant Spray, a physician, and manufactured by the defendants Smith, Kline & French Laboratories (SK&F) and Eli Lilly & Company (Lilly). Plaintiff's original complaint was filed on May 17, 1979. It named only Spray as a defendant and alleged medical malpractice. Spray answered, and the case was scheduled to be tried in June, 1980. However, on May 3, 1980 (less than three years after her son's death), plaintiff filed her first amended complaint, in which she added SK&F and Lilly as defendants and alleged that those defendants were negligent and that the medication was an unreasonably dangerous product.

Plaintiff did not request or receive leave of the court or the consent of the adverse party, Spray, before filing that amended pleading. On June 11, 1980, SK&F and Lilly moved to dismiss the first amended complaint, contending that it was not filed in compliance with ORCP 23 A. On June 13, 1980, plaintiff obtained an order, to which Spray's attorney stipulated, authorizing her to file "an amended complaint." On June 19, 1980, more than three years after her son died, plaintiff filed a second amended complaint, which was identical to the first except that it added the allegation:

"Plaintiff had no knowledge or reason to know and did not discover the unreasonably dangerous nature of defendants Smith-Kline's and Eli Lilly's product as herein alleged or of the negligence of these defendants as herein alleged until a period of time less than three years from the date of the filing of this complaint against defendants Eli Lilly and Smith-Kline."

On June 19, 1980, the trial court granted SK&F's and Lilly's motions to dismiss the first amended complaint. Those defendants then moved to dismiss the second amended complaint against them on the ground that the statute of limitations had run before it was filed. The trial court granted those motions on October 8, 1980, and subsequently entered a final judgment for SK&F and Lilly. ³ Plaintiff contends that the trial court erred in dismissing the first amended complaint because the court's and Spray's June 13, 1980, consent to the filing of an amended complaint effected an after the fact validation of the filing of that complaint on May 3. We do not agree that the June 13 order and stipulation pertained to the first amended complaint. The trial judge's dismissal of that pleading on the ground that it was filed in violation of ORCP 23 A is compelling evidence that it was not the first amended complaint the court had given plaintiff leave to file. ⁴

The decisive issue, therefore, is whether the trial court was correct in dismissing the second amended complaint against SK&F and Lilly. Plaintiff argues that her action is not time-barred, because, as her second amended complaint alleges, she discovered SK&F's and Lilly's negligence and the unreasonably dangerous nature of their products less than three years before she filed that complaint. In Repp v. Hahn, 45 Or.App. 671, 609 P.2d 398, rev. den. 289 Or. 373 (1980), we held that the time of discovery test for determining when limitation periods commence to run was applicable to that wrongful death case. We stated:

"In U. S. Nat'l Bank v. Davies, (274 Or. 663, 548 P.2d 966 (1976)), an action for legal malpractice, the court held that the damage occurred when the plaintiff was aware, or should have been aware, that the harm was caused by the defendant. Cf. Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980). (action under Tort Claims Act)

"Applying this rule to the present case, the injury occurred no earlier than the summer of 1974, when the mole began to grow. That event was the earliest time when decedent could have been aware of any harm traceable to defendant. * * * " (Footnotes omitted.) 45 Or.App. at 676, 609 P.2d 398.

Defendant Lilly ⁵ acknowledges that we so held in Repp, but contends that, under ORS 30.020(1), the time of discovery rule should apply only to the time the decedent knew or should have known of a defendant's causal involvement and that in no event can an action be brought more than three years after death. Lilly states:

"Under the wrongful death statute, the decedent's personal representative 'may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived * * *.' ORS 30.020(1). The statute then provides that the action must be 'commenced within three years after the occurrence of the injury causing the death of the decedent.' From this language it is apparent that the action is barred if it is filed more than three years after the decedent-not the personal representative-reasonably should have discovered the injury and its cause. Since the decedent is in no position to discover anything after death, the limitation period must commence to run no later than the date of death. That is what the statute says, and it is consistent with the purpose of statutes of limitation, i. e., to put to rest old claims. (Citation omitted.)" (Emphasis Lilly's.)

We do not agree that the statutory language compels or even suggests the conclusion that the commencement of the limitation period can be deferred until the time the decedent discovers the injury and its cause, but not until the time the plaintiff discovers the facts. The provision that the personal representative may maintain an action "if the decedent might (have done so), had he lived," has no bearing on when the statute begins to run. That language simply confers standing to pursue the statutory remedy. We do not agree that the standing provision, alone or in combination with the requirement that the action be "commenced within three years after the injury causing the death of the decedent," indicates that the decedent's, and not the plaintiff's, discovery is the only event other than the actual occurrence of the decedent's injury which can commence the running of the statute.

In addition to its argument based on the statutory language, Lilly also relies on legislative history and on a federal court decision, Kington v. United States, 265 F.Supp. 699 (E.D.Tenn.1967), aff'd 396 F.2d 9 (6th Cir.), cert. den. 393 U.S. 960, 89 S.Ct. 396, 21 L.Ed.2d 373 (1968), to support its proposition that the time of discovery rule relates only to discovery by the decedent and cannot under any circumstances defer the commencement of the limitation period beyond the time of death. We find the legislative history argument unpersuasive. The federal decision on which Lilly relies appears to run counter to the weight of authority. Even in the absence of contrary authority, we would decline to follow Kington. The time of discovery rule would be a sham in wrongful death cases if it were construed not to apply to discovery by the person entitled to bring the action.

There is a further question, not raised by the parties, which bears on whether the time of discovery rule is applicable to this wrongful death action. Plaintiff's cause of action against the physician defendant states a claim for professional malpractice. Malpractice actions against physicians have been subject to the time of discovery rule since Berry v. Branner, 245 Or. 307, 421 P.2d 996 (1966), the holding of which was later legislatively adopted in part. ORS 12.110(4); Or. Laws 1967, ch. 406, § 1. In Repp v. Hahn, supra, although the plaintiff's action was for wrongful death, the underlying injury to the decedent was caused by the defendant physicians' alleged malpractice. Here, however, plaintiff's claims against SK&F and Lilly are for negligence and products liability rather than malpractice.

The remaining questions, therefore, are whether the applicability of the time of discovery rule to a particular wrongful death action is contingent on whether that rule would have applied to an action by the decedent based on the theory relied upon by the plaintiff in the wrongful death action and, if so, whether the negligence and products liability counts alleged here are subject to the time of discovery principle.

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. See, e.g., Dowers Farms v. Lake County, 288 Or. 669, 607 P.2d 1361 (1980) (Tort Claims Act); Repp v. Hahn, supra; White v. Gurnsey, 48 Or.App. 931, 618 P.2d 975...