FILED: AUGUST 15, 2002
IN THE SUPREME COURT OF THE STATE OF OREGON
PATRICIA E. GRIFFITH,
Appellant,
Petitioner on Review,
and
PADDY O. GRIFFITH,
Plaintiff,
v.
PHILIP E. BLATT, M.D.;
and
REED & CARNICK,
a division of Block Drug Company, Inc.,
a foreign corporation,
Defendants,
and
WILLIAM A. STOUT,
doing business as
Hollywood Prescriptions;
and RUGBY LABORATORIES, INC.,
a foreign corporation,
Respondents,
Respondents on Review.
(CC 9502-01211; CA A93458; SC S46476)
On review from the Court of Appeals.*
Argued and submitted January 9, 2001.
Lindsey Harris Hughes of Keating Jones Bildstein & Hughes, P.C., Portland, argued the cause for petitioner on review.
G. Kenneth Shiroishi of Dunn Carney Allen Higgins & Tongue, L.L.P., Portland, argued the cause for respondent on review, William A. Stout.
I. Franklin Hunsaker of Bullivant Houser Bailey, P.C., Portland, argued the cause for respondent on review, Rugby Laboratories, Inc.
Todd A. Bradley of Gaylord & Eyerman, P.C., Portland, filed a brief on behalf of amicus curiae Oregon Trial Lawyers Association.
Before Carson, Chief Justice, and Gillette, Durham, Leeson, and Riggs Justices.**
DURHAM, J.
The decision of the Court of Appeals and the judgment of the circuit court are reversed, and the case is remanded to the circuit court for further proceedings.
*Appeal from Multnomah County Circuit Court, Ann Fisher, Judge Pro Tempore, George M. Joseph, Judge Pro Tempore. 158 Or App 204, 973 P2d 385 (1999).
**Kulongoski, J., resigned June 14, 2001, and did not participate in the decision of this case; De Muniz and Balmer, JJ., did not participate in the consideration or decision of this case.
DURHAM, J.
Plaintiff Patricia E. Griffith seeks review of a decision of the Court of Appeals that affirmed the trial court's summary judgment against plaintiff on her claims against defendants Rugby Laboratories, Inc. (Rugby) and Stout. (1) Griffith v. Blatt, 158 Or App 204, 973 P2d 385 (1999). Plaintiff claimed that she was injured when she used a lotion, Lindane, that her physician had prescribed. Rugby manufactured the lotion and Stout, a pharmacist, filled the prescription. Plaintiff argued that neither her physician nor Stout had warned her that Lindane was toxic if used improperly. The Court of Appeals determined that plaintiff's claim against Rugby was not timely filed and that the "learned intermediary" doctrine protected Stout from liability. We discuss that doctrine in greater detail later in this opinion. We affirm the Court of Appeals' determination that the claim against Rugby was untimely, but conclude that the learned intermediary doctrine does not protect Stout from liability in this case. Therefore, we reverse the decision of the Court of Appeals and remand the case to the trial court for further proceedings.
Because the trial court dismissed plaintiff's action on summary judgment, ORCP 47, we view the evidence and all reasonable inferences that may be drawn from it in the light most favorable to plaintiff, the party opposing summary judgment. Jones v. General Motors Corp., 325 Or 404, 408, 939 P2d 608 (1997). The Court of Appeals applied that standard in summarizing the evidence as follows:
"On February 26, 1993, plaintiff visited Dr. Philip Blatt, seeking treatment for a skin condition. Blatt gave plaintiff a prescription for two ounces of Lindane, one percent lotion, instructing the pharmacist to fill the prescription and to type 'As directed' on the label. Plaintiff took that prescription to Stout, who filled the prescription, placing the lotion in a plain prescription bottle which bore generic 'For external use only' and 'Shake well' labels. In accordance with Blatt's instructions, Stout typed the notation 'As directed' on the prescription label and affixed that label to the bottle. The bottle bore no other instructions or warnings. There is no evidence that Stout gave plaintiff any verbal instructions or warnings concerning the lotion including, particularly, any warnings pertaining to frequency or duration of use.
"Plaintiff applied the lotion over her entire body once a day, after her daily shower for five or six days until she had used the entire bottle. After each application, plaintiff did not shower for the next 24 hours. Properly used, Lindane lotion should be applied no more than two times and should be washed off within 12 hours after any application.
"Within a week to two weeks after beginning to use the Lindane lotion, plaintiff began to suffer medical problems, including convulsions, dizziness, weight loss, hair loss, sleep disturbance, and cognitive dysfunction. On June 10, 1993, plaintiff watched a segment of the television program "Good Morning America," which featured a report about a child who had suffered convulsions after overexposure to Lindane lotion. Immediately after that program, plaintiff retrieved her empty bottle of Lindane lotion and told her husband, 'This is the same stuff.' In August 1993, plaintiff consulted with a physician,[ (2)] who diagnosed her symptoms to be the result of central nervous system toxicity due to overexposure to Lindane lotion."
Griffith v. Blatt, 158 Or App 204, 207-09, 973 P2d 385 (1999).
On February 23, 1995, plaintiff filed claims for negligence against Stout, for medical malpractice against Dr. Blatt, and for strict liability against Reed & Carnick, a drug manufacturing company. On June 12, 1995, plaintiff stipulated to a dismissal of its claims against Reed & Carnick.
On June 21, 1995, plaintiff filed an amended complaint that alleged a medical malpractice claim against Blatt, a strict liability claim against Rugby, and added a strict liability claim to the negligence claim against Stout. (3)
On Stout's motion for summary judgment, the trial court concluded that ORS 30.905(2) barred plaintiff's product liability claim against Stout. ORS 30.905(2) provides:
"Except as provided in ORS 30.907 and 30.908(1) to (4), 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."
The trial court also dismissed plaintiff's negligence claim against Stout.
On Rugby's motion for summary judgment, the trial court concluded that ORS 30.905(2) barred plaintiff's product liability claim against Rugby. The court reasoned that, even if the two-year limitations period commenced when plaintiff discovered her injury rather than when the injury occurred, plaintiff had discovered her injury, at the latest, when she watched the "Good Morning America" program on June 10, 1993. Therefore, according to the court, the period of limitations began running more than two years before June 21, 1995, when plaintiff filed her amended complaint that named Rugby as a defendant.
Plaintiff appealed. Plaintiff argued that Rugby had failed to establish that plaintiff had discovered her claim against Rugby more than two years before plaintiff had filed her amended complaint that named Rugby. The Court of Appeals declined to address plaintiff's arguments, opining that her arguments on appeal differed from those presented to the trial court. Griffith, 158 Or App at 210.
The Court of Appeals assumed for purposes of analysis that plaintiff's strict liability claim against Stout was timely, but concluded that the learned intermediary doctrine barred that claim. Id. at 211. The Court of Appeals also concluded that plaintiff's negligence claim against Stout failed because plaintiff did not controvert Stout's affidavit averring that his conduct satisfied the pertinent standard of care for pharmacists. Id. at 217.
We first address the timeliness of plaintiff's claim against Rugby. As already noted, the Court of Appeals concluded that plaintiff's arguments on appeal differed from those that she had presented to the trial court and declined to address them. That response was correct with respect to some of plaintiff's arguments in the trial court, such as whether plaintiff's delay in filing a claim against Rugby was due to the tardiness of some defendants in responding to plaintiff's request to file an amended complaint. However, plaintiff also contended, both in the trial court and on appeal, that summary judgment was not appropriate on Rugby's statute of limitations defense because the record demonstrated the existence of a factual dispute about when plaintiff had discovered that Rugby had injured her. Plaintiff challenged the trial court's contrary conclusion by citing evidence in the record that arguably pointed to a different answer. However, she did not abandon her argument, summarized above, merely by highlighting on appeal other evidence that, in her view, also undermined the trial court's conclusion. It follows that the Court of Appeals erred in disposing of plaintiff's arguments on preservation grounds. Consequently, we proceed to the merits of plaintiff's assignment that the trial court erred in granting summary judgment on Rugby's statute of limitations defense.
Rugby's defense requires the court to apply ORS 30.905(2). In addressing that question, the parties assumed, from several opinions of the Court of Appeals, that the limitations period in ORS 30.905(2) began running on the date that plaintiff discovered her injury and the relationship of Rugby's tortious conduct to that injury. To test that assumption, this court invited supplemental briefing from the parties on the following question: "Does the discovery rule apply to ORS 30.905(2)?" Understandably, the parties disagree about the answer to that question. However, for the reason stated below, this court need not examine the parties' dispute over that question.
In Gladhart v. Oregon Vineyard Supply Co., 332 Or 226, 26 P3d 817 (2001), this court interpreted ORS 30.905(2) and concluded that that statute does not incorporate a discovery rule. The court determined instead that the limitations period in that statute commences when the plaintiff's injury occurs, whether or not the plaintiff has discovered the injury at that time. Id. at 234. Plaintiff contends that the court should not follow Gladhart here because Rugby failed to argue below that ORS 30.905(2) did not incorporate a discovery rule. We reject that argument because, as a practical matter, it would compel this court to apply the statute in a manner that this court already has rejected.
According to Gladhart, the two-year period of limitations in ORS 30.905(2) commenced when plaintiff's injury occurred. Plaintiff used Lindane lotion for several days after she filled her prescription for the lotion on February 26, 1993. She experienced adverse symptoms within a week or two. However, plaintiff first filed her amended complaint that named Rugby as a defendant on June 21, 1995. Because plaintiff filed her product liability claim against Rugby more than "two years after the date on which the * * * injury or damage complained of occur[red,]" ORS 30.905(2), that claim is time-barred. Consequently, the trial court did not err in granting summary judgment for Rugby on that claim.
We next address plaintiff's claims for negligence and for strict liability against Stout. On review, plaintiff asserts that she does not concede that Stout was entitled to summary judgment on her negligence claim, but she presents no argument against that conclusion. In the absence of such an argument, we affirm the decision of the Court of Appeals on that issue without further discussion.
We turn to the issue of the timeliness of plaintiff's strict liability claim against Stout. As noted above, plaintiff first alleged that claim in the amended complaint that she filed on June 21, 1995. Plaintiff argues that that claim is timely because, among other reasons, it relates back to the filing date of her original negligence complaint against Stout -- February 23, 1995 -- and, consequently, the amended complaint satisfies the two-year limitation period set out in ORS 30.905(2). In response, Stout asserts that the amended complaint does not relate back because the strict liability and negligence claims involve different proof requirements and are subject to different defenses.
The rule that controls the relation back of a claim alleged in an amended pleading is ORCP 23 C, which provides in part:
"Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading."
In applying that rule, the court first must identify the "conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Second, the court must determine whether the claim or defense alleged in the amended pleading arose out of that conduct, transaction, or occurrence.
The legislature made ORCP 23 C effective and first operative on January 1, 1980 as one of the original provisions of the Oregon Rules of Civil Procedure. Or Laws 1979, ch 284,