Oregon Plaintiffs Lawrence and Patricia Keller may proceed to trial in their asbestos injury cases thanks to the Oregon Supreme Court's recent interpretation of the "discovery rule" in the Oregon statute of limitations.
The Kellers brought suit against various defendants alleging that Lawrence Keller was injured from exposure to asbestos. The defendants moved to dismiss the suit, arguing that the statute of limitations had run on the claims. Oregon's asbestos statute of limitations, ORS 30.907(1), provides that: "A product liability civil action for damages resulting from asbestos-related disease shall be commenced not later that 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."
Lawrence Keller had worked as a mechanic in a muffler shop where he allegedly was exposed to asbestos. He later developed respiratory ailments and, from the mid-1980s to the mid-1990s, saw various doctors who told him that his exposure to asbestos was a possible cause of his problems. More than two years before he filed his civil suit in 2000, he filed both workers compensation and social security disability claims in which he alleged that he suffered from his prior exposure to asbestos.
Nonetheless, in a unanimous opinion, the Oregon Supreme Court last week held that a reasonable juror could find that Mr. Keller did not discover his asbestos-related condition until a doctor diagnosed it. That diagnosis came, for the first time, within the two-year limitations period. The Court further held that knowledge of his condition and its cause should not be imputed to him while he engaged in a reasonable inquiry and was told by his doctors that the cause of his condition was uncertain. You can read the opinion here: Opinion.