HADLOCK, J.
Plaintiff brought this action for battery against a medical response business and its parent company, as well as a paramedic employed by the business, asserting that the paramedic had committed a battery upon her by touching her sexually during an ambulance transport. Defendants moved for summary judgment, and the trial court granted their motion on two independent grounds: (1) that plaintiff's claim was barred by the applicable statute of limitations; and (2) that plaintiff had failed to raise a genuine issue of material fact as to occurrence of the battery, which she could not remember. Plaintiff appeals, and we reverse and remand.
Summary judgment is appropriate if there is no genuine issue of material fact for trial and the moving party is entitled to judgment as a matter of law. ORCP 47 C. There is no genuine issue of material fact if, based upon the record, "no objectively reasonable juror could return a verdict for the adverse party on the matter that is the subject of the motion for summary judgment." Id. In determining whether a genuine factual dispute exists, we review the record in the light most favorable to the nonmoving party — here, plaintiff — and draw all reasonable inferences in her favor. Jones v. General Motors Corp., 325 Or. 404, 420, 939 P.2d 608 (1997). We state the following facts consistently with that standard.
On January 25, 2006, American Medical Response Northwest (AMR) transported plaintiff by ambulance to a hospital following her complaint of shortness of breath. During plaintiff's transport, the ambulance staff consisted of a driver and a paramedic, Lannie Haszard, who accompanied plaintiff in the back of the ambulance. Plaintiff has no recollection of that trip. After the ambulance arrived at the hospital, an attendant undressed plaintiff while Haszard stood by and stared, panting and becoming aroused.
When plaintiff left the hospital, she "had a great sense of being unclean," and she "showered for a long time." About one month later, plaintiff returned a customer survey form to AMR indicating that she had
In December 2007, plaintiff learned that Haszard had been charged with sexually assaulting women during other ambulance transports. The following year, Haszard pleaded guilty to five counts of attempting to commit sexual abuse, and additional women came forward with allegations that Haszard had been sexually inappropriate toward them during ambulance rides. In November 2009, plaintiff filed suit against Haszard,
Defendants moved for summary judgment on two grounds: first, that plaintiff had failed to raise a genuine issue of material fact because she had no memory of the alleged battery, and, second, that plaintiff was barred by a two-year statute of limitations from bringing a cause of action for an incident that had occurred almost four years earlier. ORS 12.110(1). In response, plaintiff submitted an affidavit from her attorney pursuant to ORCP 47 E stating that an expert had been retained whose testimony would create issues of fact. More specifically, the affidavit stated that the expert was prepared to testify that plaintiff had been
Plaintiff asserted that the ORCP 47 E affidavit alone was sufficient to create an issue of material fact. In addition, plaintiff argued that the applicable two-year statute of limitations had been tolled by application of the "discovery rule,"
The trial court accepted both of defendants' arguments. Regarding evidence of battery, the court held that plaintiff had failed to raise a genuine issue of material fact because "Plaintiff cannot establish a claim based solely on the [ORCP] 47 E affidavit when Plaintiff acknowledges she has no memory of a battery." The trial court also agreed with defendant that plaintiff's claim was time barred, observing that battery claims are governed by a two-year statute of limitations, ORS 12.110(1), and concluding that the discovery rule does not apply to those claims.
On appeal, plaintiff challenges both aspects of the trial court's ruling in defendants' favor. First, she contends that the trial court erred in ruling that her battery claim was time barred. According to plaintiff, the discovery rule applies to actions for battery and, therefore, the statutory two-year limitations period did not begin to run on her claim until she discovered her injury in December 2007, making her November 2009 complaint timely. Second, plaintiff argues that the trial court erred in ruling that she had not submitted evidence creating a genuine issue of material
We first address whether defendants were entitled to summary judgment on the ground that plaintiff's battery claim was untimely. The two-year statute of limitations found in ORS 12.110(1) describes the time within which a battery claim must be filed:
(Emphases added.) Pursuant to ORS 12.010, the statutory period begins to run only after the cause of action has "accrued."
The meaning of the word "accrued" in ORS 12.010 has been the subject of much analysis in Oregon cases. The seminal case remains Berry v. Branner, 245 Or. 307, 308, 421 P.2d 996 (1966), a medical malpractice case in which the plaintiff alleged that the defendant surgeon negligently had left a needle in her abdomen following a hysterectomy. The plaintiff alleged that, although she started to experience great pain two months after her surgery, she did not discover the presence of a needle (or that the needle was the cause of her pain) until several years later. The defendant demurred on the ground that the plaintiff had filed her malpractice claim more than two years after the surgery and it was, therefore, untimely under ORS 12.110(1), which then governed claims for medical malpractice.
Id. at 312, 421 P.2d 996 (citations omitted; emphasis in original).
Because the Berry plaintiff, "by the very nature of the treatment had no way of immediately ascertaining [her] injury," the court explained, the same definitive two-year limitations period "that is allowed for bringing other tort actions that are normally immediately ascertainable upon commission of the wrong" should not apply. Id. Rather, the court concluded, "the cause of action accrued at the time plaintiff obtained knowledge, or reasonably should have obtained knowledge of the tort committed upon her person by defendant." Id. at 315-16, 421 P.2d 996.
That ultimate holding in Berry has come to be known as the "discovery rule," that is, the principle that statutes of limitations — at least for certain causes of action —
Plaintiff's claim for battery is a claim related to personal injury in the sense of bodily harm. Accordingly, Berry and the other cases cited above suggest that the discovery rule should apply to her claim. Nonetheless, defendants argue that the discovery rule does not apply here for two reasons: (1) the text of ORS 12.110(1) does not create a discovery rule for battery claims and (2) the discovery rule articulated in Berry and its progeny is inapplicable to battery claims because those claims are "inherently discoverable." We address those two assertions in turn.
According to defendants, the "plain text" of ORS 12.110(1) forecloses a discovery rule for battery claims. That is so, they argue, because the second clause in the statute, which applies to actions for fraud and deceit, introduces a discovery rule, but the first clause, which applies to an action for battery, does not, and that omission was deliberate:
ORS 12.110(1) (emphasis added). However, defendants' plain-text argument is precluded by the Supreme Court's analysis and holding in Berry. There, the court rejected the argument that the legislature had deliberately adopted the discovery rule in ORS 12.110(1) as to actions for fraud and deceit, but not with respect to personal injury claims. Berry, 245 Or. at 310, 421 P.2d 996; see Cole, 212 Or.App. at 515, 160 P.3d 1 (explaining that, in Berry, "the Court concluded that ORS 12.110(1) does include a discovery provision that applies to actions other than those based on fraud or deceit" (emphasis in original)). Moreover, defendants do not propose, and we do not perceive, any textual reason why the discovery rule should apply to one cause of action in the first clause of ORS 12.110(1) but not to another.
Nor are we persuaded by defendants' argument that the discovery rule does not
Focusing on our previous discussions of the types of injuries that may be deemed "inherently discoverable," defendants contend, essentially, that battery is a tort that is "inherently discoverable" as a matter of law: "it must be the case that a `reasonably prudent plaintiff knows when he or she is being battered.'" That argument cannot be reconciled with the recent decision in Doe, in which the Supreme Court considered whether the "plaintiffs' allegations that [a teacher] fondled their genitals in and before 1984 require[d] the conclusion that their battery claims accrued by that date." 353 Or. at 329, 297 P.3d 1287. The Doe court rejected the defendants' argument that the battery claim necessarily accrued when the battery occurred. Id. at 332, 297 P.3d 1287. Instead, the court concluded, application of the discovery rule meant that the battery claim did not accrue — and the limitations period did not begin to run — until the plaintiffs not only discovered that the touching had occurred, but also recognized (or would be deemed to have recognized) that the touching "was in fact offensive." * * * Id. at 331, 297 P.3d 1287. That holding establishes that at least some batteries are not "inherently discoverable" at the moment of occurrence, defeating defendants' assertion, here, that a discovery rule never applies to battery claims because those claims always are inherently discoverable.
The question remains whether application of the discovery rule will result in the statutory limitations period being tolled in this case. In response to defendants' summary judgment motion, plaintiff offered evidence that she reasonably did not immediately discover that she had been sexually battered in the ambulance because she suffers from traumatic amnesia caused by that battery. Whether plaintiff does in fact suffer from traumatic amnesia is a question of fact for a jury, as is the question whether, notwithstanding any such amnesia, plaintiff reasonably should have discovered the alleged
We turn to the second basis on which the trial court granted summary judgment to defendants, i.e., that plaintiff "cannot establish a claim based solely on the [ORCP] 47 E affidavit when [plaintiff] acknowledges she has no memory of a battery." As noted, plaintiff argues on appeal that the ORCP 47 E affidavit that her attorney submitted was enough to overcome defendants' summary judgment motion. That affidavit by counsel stated, in material part:
Plaintiff contends that the affidavit was enough, standing alone, to create a genuine issue of material fact about the occurrence of a battery. In addition, plaintiff points to other evidence in the record, including evidence of Haszard's assaults of other women, of Haszard's behavior toward her at the hospital, of her amnesia, and of the post-hospitalization symptoms she suffered, including obsessively washing herself and experiencing nightmares about Haszard. Plaintiff characterizes that evidence as "circumstantial evidence of her abuse by Mr. Haszard" and contends that, alone or in combination with the ORCP 47 E affidavit, it created a genuine issue of material fact sufficient to go to a jury.
Defendants raise several points in response. First, defendants disparage plaintiff's current allegations of battery, asserting that they conflict with her earlier failure to report any sexual touching or amnesia. Defendants do not, however, explain why that alleged conflict should lead us to conclude that the record includes no competent evidence supporting plaintiff's battery claim. We conclude, to the contrary, that the record poses a quintessential jury question if it includes evidence both that plaintiff was battered by Haszard and that she has no recollection of the event. It is for the jury to resolve any tension that some factfinders might perceive in that evidence. We also reject any suggestion that a plaintiff's inability to recall having been injured is a per se bar to prevailing on an associated tort claim. Some tort victims may not recall having been injured — because, for example, they were unconscious or suffered cognitive limitations at the time — but that does not mean that the tortious injury cannot be proved through evidence other than the plaintiffs' testimony.
Second, defendants contend that plaintiff's ORCP 47 E affidavit does not create a genuine factual issue because such an affidavit "permits the trial court to find an issue of fact on an element of a claim only where expert testimony is `required' to prove it." Defendants argue that expert testimony is not "required" to prove the existence of a battery, because whether a battery occurred "is a purely factual and historical question involving lay testimony" and "involves no complex or scientific considerations that are beyond a lay juror's competence."
Defendants are correct that, as a general matter, the filing of an ORCP 47 E affidavit "precludes summary judgment only where expert opinion evidence is required to establish a genuine issue of material fact." DeBerry v. Summers, 255 Or.App. 152, 163, 296 P.3d 610 (2013) (emphasis in original). And it may well be true that expert testimony is not "required" in most cases involving battery claims. In this case, however, expert opinion is required, because the very circumstances
Third, defendants argue that the expert affidavit is inadmissible in this case under State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), and subsequent cases. According to defendants, Southard holds that "an expert's opinion or diagnosis that `sexual abuse occurred' is always inadmissible in the absence of any physical evidence corroborating that abuse." (Emphasis in original.) Indeed, Southard does hold that an expert opinion that a child was sexually abused is "inadmissible in the absence of physical evidence of abuse, because it does not tell the jury anything that the jury could not have determined on its own, and, therefore, the probative value of any such testimony is outweighed by the danger of unfair prejudicial effect under OEC 403." State v. Lupoli, 348 Or. 346, 357, 234 P.3d 117 (2010) (characterizing Southard). Nonetheless, we disagree with defendants' contention that plaintiff's ORCP 47 E affidavit is inadmissible under Southard. The holding in that case was premised largely on concerns that do not apply here: that the proffered expert opinion was based primarily on an assessment of the child victim's credibility, 347 Or. at 140-41, 218 P.3d 104, and that the record included no "physical evidence of abuse," id. at 142, 218 P.3d 104. Under those circumstances, the Supreme Court held, the risk of prejudice to the criminal defendant substantially outweighed the "minimal probative value of the diagnosis." Id. at 141, 218 P.3d 104.
Here, contrary to defendants' contentions, the ORCP 47 E affidavit does not raise the concerns underpinning the Supreme Court's decision in Southard. Simply stated, on this record, we cannot say that the expert's opinion is based primarily on an assessment of plaintiff's credibility or that it is not based on some physical evidence of the battery. For that reason, we reject defendant's argument that the ORCP 47 E affidavit is not admissible in response to defendants' summary judgment motion, and therefore, could not create a genuine issue of material fact.
Fourth, defendants appear to suggest that the expert affidavit is either inadmissible or insufficient to create a genuine issue of fact because it does not explain the basis on which the expert concluded that plaintiff suffers from traumatic amnesia caused by a battery in the ambulance. But defendants cite no authority to support their contention that an ORCP 47 E affidavit must include that level of detail, and we are not aware of any. To the contrary, under ORCP 47 E, an attorney's affidavit creates a genuine factual dispute if it states "that an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact" if the expert "has actually rendered an opinion or provided facts which, if revealed by affidavit or declaration, would be a sufficient basis for denying the motion for summary judgment." ORCP 47 E (emphasis added). The emphasized part of the rule makes clear that the actual opinion or facts to which the expert eventually will testify need not be revealed at the time of summary judgment proceedings. See generally Piskorski v. Ron Tonkin Toyota, Inc., 179 Or.App. 713, 718, 41 P.3d 1088 (2002) ("If a party `is required to provide the opinion of an expert to establish a genuine issue of material fact,' an attorney's affidavit asserting that a retained expert will provide admissible evidence is sufficient, without more, to create a factual dispute on that issue.").
Finally, and in conjunction with their complaint about the lack of explanation in the affidavit by plaintiff's counsel, defendants
In short, we are not persuaded by defendants' arguments that plaintiff's ORCP 47 E affidavit is inadmissible or, if admissible, insufficient to create a genuine issue of material fact. Particularly in combination with evidence about Haszard's sexually offensive behavior following the ambulance ride, and evidence that plaintiff does not recall the transport but subsequently has experienced nightmares about Haszard and obsessive feelings of uncleanliness, the affidavit creates a genuine dispute of fact regarding whether Haszard battered plaintiff in the ambulance.
In the end, defendants express frustration at their inability "to discover or learn any facts relating to how Plaintiff was allegedly touched by Mr. Haszard until Plaintiff's expert takes the stand in trial." (Emphasis in original.) That frustration may be understandable, but it is the result of ORCP 47 E's clear mandate that parties litigating summary judgment motions need provide only very limited information about the expert opinions on which they intend to rely at trial. The rule itself explains that it is not to be used "to obtain the names of potential expert witnesses or to obtain their facts or opinions." ORCP 47 E (emphasis added). Rather, under the rule, plaintiff could defeat defendants' summary judgment motion by submitting an attorney's affidavit stating that an unnamed expert had been retained who was willing to testify to facts or opinions that, if revealed, would create a genuine factual dispute. The affidavit in this case meets that standard, and the trial court erred when it granted summary judgment to defendants.
Reversed and remanded.