Whalen v. American Medical Response Northwest, Inc.

Under ORCP 47 E, expert testimony referred to in an affidavit may create a genuine dispute of fact, even when that information is very limited. Under ORS 12.110, the "discovery rule" applies to battery charges, beginning the two year statute of limitations from when the battery is reasonably discoverable.

Rabecca Whalen, plaintiff, appealed the decision for summary judgment in favor of American Medical Response Northwest (AMR) and Lannie Haszard, defendants. In 2006, Whalen was transported by AMR to a hospital, during which Haszard allegedly watched as Whalen was undressed, “panting and becoming aroused.” As a result, Whalen suffered from hyper-vigilance and nightmares, which she discovered stemmed in part from Haszard’s alleged battery. She pressed charges in 2009. Defendants moved for summary judgment on two grounds: that there was no genuine issue of fact because Whalen had no recollection of the battery, and that the two-year statute of limitations had been exceeded by almost two years. The motion was granted. Both grounds were appealed by Whalen, who argued that under ORCP 14 E, an affidavit stating an expert was retained, whose testimony would create an issue of fact, was sufficient to bar summary judgment, and that the “discovery rule,” which begins tolling the statute of limitations from the time that injury is discovered, applies to battery under ORS 12.110. The Court held that such an affidavit does create a cause of action, and that the statute of limitations for battery begins tolling at the time of reasonable discovery. Reversed and remanded.