Shaughnessy v. Spray , 55 Or. App. 42 ( 1981 )

RICHARDSON, J.

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). Plaintiffs 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 23A. 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 23A 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 P2d 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 P2d 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 P2d 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.

Defendant Lilly⁵ 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 plaintiffs, 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 (ED Tenn 1967), aff’d 396 F2d 9 (6th Cir), cert den 393 US 960 (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. Plaintiffs 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 P2d 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 plaintiffs action was for wrongful death, the underlying injury to the decedent was caused by the defendant physicians’ alleged malpractice. Here, however, plaintiffs 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 plaintiffs reasonable discovery of the defendant’s causal involvement. See, e.g., Dowers Farms v. Lake County, 288 Or 669, 607 P2d 1361 (1980)(Tort Claims Act); Repp v. Hahn, supra; White v. Gurnsey, 48 Or App 931, 618 P2d 975 (1980)(defamation). Of greatest immediate relevance, the Supreme Court held in Schiele v. Hobart Corporation, 284 Or 483, 587 P2d 1010 (1978), that the time of reasonable discovery principle applied to the accrual of the plaintiffs “products liability cause of action” to recover damages for an occupational disease she allegedly contracted from exposure to the defendant’s product. 284 Or at 485. The court stated in Schiele:

“This case necessitates our determining when the two-year statute of limitations contained in ORS 12.110(1) begins to run (the cause of action accrues) on a claim alleging that defendants’ negligence caused an occupational disease. * * *” 284 Or at 487.

The decision in Schiele can be read as extending the time of discovery rule to both products liability cases and to negligence cases in addition to those alleging professional malpractice. See also, Colvin v. FMC Corporation, 43 Or App 709, 604 P2d 157 (1979); but see ORS 30.905.⁶

However, it is unnecessary for us to decide whether the time of discovery rule has been or should be extended generally to products liability and “simple” negligence actions, because we conclude that the limitation period under the wrongful death statute, independently of the statute of limitations which would apply to an action for the underlying injury, is subject to the time of discovery commencement rule. We held in Baxter v. Zeller, 42 Or App 873, 601 P2d 902, rev den 288 Or 253 (1979), that the three-year limitation period of ORS 30.020(1), rather than the two-year period of ORS 12.110(4), was applicable to a wrongful death action in which the injury causing the death was the result of medical malpractice. We explained:

“We note first that ORS 12.110(4) speaks of ‘[a]n action to recover damages for injuries to the person.’ (Emphasis added.) By contrast, ORS 30.020(1) applies ‘[w]hen the death of a person is caused by [a] wrongful act.’ (Emphasis added.) This is a death case, but the applicability of ORS 30.020(1) derives from more than a label.

“At common law, there existed no civil remedy for wrongfully causing death. Any cause of action arising as a result of an injury to a person was extinguished by the death of the person. Cowgill, Adm’r v. Boock, Adm’r, 189 Or 282, 218 P2d 445, 19 ALR2d 405 (1950). At common law, therefore, this proceeding — whether deriving liability from medical malpractice or some other wrongful act— could not have been brought after the patient died. The existence of a cause of action for medical malpractice (and, a fortiori, the existence of a statute of limitations for such an action) was irrelevant.

“The enactment of the wrongful death statute, however, created a new and separate cause of action which could arise if death was caused by any wrongful act. Its three-year statutory period was a part of that right. Richard v. Slate, 239 Or 164, 396 P2d 900 (1964). See also Apitz v. Dames, 205 Or 242, 287 P2d 585 (1955). Full vindication of the right dictates that the limitation found in ORS 30.020(1) be applied in this case.” 42 Or App at 877. (Emphasis in original.)

Baxter holds that the wrongful death statute’s limitation period applies to all wrongful death actions and the tort limitation period which would have been germane if death had not resulted does not apply. It follows that the time of discovery rule, which we extended to the wrongful death statute in Repp, applies to all wrongful death cases regardless of whether the rule would have applied independently in tort actions based on the underlying injury.

Lilly next argues that plaintiffs allegation that she did not discover SK&F’s or Lilly’s causal involvement until after her son’s death is defective in that it is “conclusionary” and “does not affirmatively allege that plaintiffs failure to promptly discover [her son’s] injury and its cause was not attributable to her lack of diligence.” Assuming arguendo that Lilly is correct, the defect in the pleading would not support the dismissal of the complaint. Had Lilly raised this issue in the trial court in the appropriate way, plaintiff would have had the right to replead. ORCP 21D.

Finally, Lilly argues:

“The second amended complaint does not allege that plaintiff acted reasonably when she failed to promptly discover the injury and its cause. On the contrary, it appears on the face of the second amended complaint that on May 23, 1977 plaintiff believed that Mr. Shaughnessy’s injury and death were caused by his using a product manufactured by Eli Lilly. Plaintiffs allegation that she did not reasonably discover Eli Lilly’s alleged negligence or the alleged dangerous nature of its product until some time later is not an allegation that she did not reasonably discover the injury and its cause on the day of Mr. Shaughnessy’s death. * * * Plaintiff simply failed to negative her knowledge of Mr. Shaughnessy’s injury and its alleged cause on the date of his death, and the court properly dismissed the second amended complaint for that reason. * * *” (Emphasis Lilly’s.)

It is true that the complaint shows on its face that plaintiff was aware of the injury at the time her son died and was aware that the injury was attributable to her son’s taking the medication prescribed by the physician defendant and manufactured by SK&F and Lilly. However, the relevant inquiry is not whether and when plaintiff knew that the use of the drug was involved in her son’s death, but whether she was or should have been aware more than three years before joining SK&F and Lilly as defendants that their negligence or the dangerous nature of their products was causal. See Schiele v. Hobart Corporation, supra, 284 Or at 490. That question is for the jury.

The dismissal of the second amended complaint as to SK&F and Lilly was error.⁷

The judgment for the defendants SK&F and Lilly is reversed and the cause is remanded to the trial court with instructions to reinstate the second amended complaint as to all defendants named therein.

1 ORCP 23A provides in part:

“A pleading may be amended by a party once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. * * *”

2 ORS 30.020(1) provides:

“When the death of a person is caused by the wrongful act or omission of another, the personal representative of the decedent, for the benefit of the decedent’s surviving spouse, surviving children, surviving parents and other individuals, if any, who under the law of intestate succession of the state of the decedent’s domicile would be entitled to inherit the personal property of the decedent, may maintain an action against the wrongdoer, if the decedent might have maintained an action, had he lived, against the wrongdoer for an injury done by the same act or omission. The action shall be commenced within three years after the occurrence of the injury causing the death of the decedent.”

3 The remaining defendant was not affected by the dismissal order, and he remains a party in the trial court. Accordingly, the dismissal does not resolve all issues as to all parties. In accordance with ORS 18.125, the trial court stated in the judgment of dismissal that there was “no just reason for delay,” and directed entry of final judgment for the two defendants. After the trial court entered that judgment, we held in Hill v. Oland, 52 Or App 791, 629 P2d 867 (1981), and in Portland Elec. and Plumb, v. Cooke, 51 Or App 555, 626 P2d 397, rev den 291 Or 117 (1981), that we do not acquire jurisdiction over interlocutory appeals if the trial court does not make findings or a statement of reasons to support its conclusion under ORS 18.125 that there is no just reason to delay the entry of final judgment, unless the trial court’s “reasons [are] apparent on the record,” 52 Or App at 793, and, presumably, are right.

In the present case, there are apparent reasons to support the entry of the judgment. One of the effects of an ORS 18.125 order is to permit an interlocutory appeal. ORS 19.010(2) (e). Given the interrelated nature of plaintiffs claims against the three defendants and the fact that the trial judge’s dismissal of the action against the two defendants was not based on the merits of the claims, it is in the interest of judicial efficiency that a final determination be made as to which defendants remain in the case, so that all claims which are triable will be tried either simultaneously or in close temporal proximity. If plaintiff were required to await a final adjudication as to the third defendant before appealing the dismissal of the action against the two defendants involved here, an unjustifiable duplication of effort in the trial court could well result.

The basic reason for disallowing interlocutory appeals is to prevent the cost and delay of piecemeal appeals and trials. One of the objectives of ORS 18.125, however, is to provide a mechanism for allowing an interlocutory appeal to take place when that will promote the overall efficiency of the judicial process. We conclude that we have jurisdiction over this appeal.

4 Because we conclude the court did not permit plaintiff to file the first amended complaint through an order issued after the fact and, as appeared from the face of that complaint, after the limitation period had run, we need not decide whether the court could have done so. Although State ex rel Kalich v. Bryson, 253 Or 418, 453 P2d 659 (1969), can be interpreted as suggesting that such an order would have been within the court’s power, we question whether ORCP 23A is that flexible.

5 SK&F and Lilly ppeared separately. Our discussion of the time of discovery issue refers to Lilly’s arguments rather than SK&F’s because, to the extent their arguments on that issue are not overlapping, Lilly’s are more comprehensive — or at least more extensive. We note, however, that the briefs of all the parties present through discussions of the issues in the case and we have considered the arguments presented in all of the briefs.

6 ORS 30.905(2) provides:

“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.” (Emphasis added.)

The statute is not relevant to this case. It was enacted by Oregon Laws 1977, chapter 843, section 3. Section 5 of the same Act provides:

“This Act takes effect on January 1,1978, and applies only to causes of action, claims, rights or liabilities accruing after December 31,1977.”

Plaintiffs decedent died on May 23,1977.

7 It is unnecessary for us to reach plaintiffs argument that the action was not time-barred because the second amended complaint relates back to her earlier pleadings.