In September 1997, Salem resident Rob McRae was working
on a Northwest Natural Gas crew unloading sections of
pipe from a flatbed truck, when an operator accidentally
swung the crane against an overhead power line. Twelve
thousand volts surged through McRae's body, setting him
aflame and causing devastating injuries: McRae lost his
nose and ears as a result of severe burns; his arms and
legs were later amputated.
According to McRae's attorney, Brad Higbee, the tragedy
could have been avoided if the crane had been equipped
with elementary safety features that have been in common
use since the 1950s. But an obscure wrinkle in Oregon
law prevents McRae from suing the crane's manufacturer.
Under the statute of ultimate repose--which determines
a legal drop-dead date--product-liability lawsuits must
be filed within eight years of manufacture. Because
the crane involved in McRae's accident was built in
1981, he was shut out from the courtroom.
If McRae had been injured elsewhere, things would be
different. Oregon is one of only 18 states that limit
lawsuits in this way.
Trial lawyers have long opposed the repose statute,
enacted in 1977 as part of tort reform. But the Legislature
has steadfastly refused to revoke it. Instead, it has
made a series of special exceptions, the latest being
HB 3386, which would nullify the statute for anyone
injured by extensible equipment that comes in contact
with power lines--in other words, Rob McRae. Gov. Kitzhaber
signed the bill last week, so McRae is finally free
to have his day in court.
McRae is not the first person to win a special benediction
in this way. Over the years, the Oregon Legislature
has also granted exemptions to people who claim injuries
from asbestos, silicone breast implants and pickup trucks
with side-saddle gas tanks.
The statute of repose is often confused with the statute
of limitations, but the two laws are quite different.
The statute of limitations says you must file a lawsuit
within two years of discovering you've been injured
or you lose your right to sue--the clock starts ticking
the day you find out something happened. But the statute
of repose says you can't file a lawsuit more than eight
years after the faulty product was manufactured
no matter when you learned about it. For medical-malpractice
claims, the drop-dead date is five years from the time
medical care was administered.
The statute of repose is absolute--once the allotted
time has elapsed, a lawsuit cannot get a hearing, no
matter how compelling it may be. "It's like nailing
the courthouse door shut," says Portland lawyer Linda
Eyerman. "You are totally denied your day in court."
Trial lawyers have also attempted to overturn the repose
statute in the courts. Take the case of Leonore Brown,
a Portland medical receptionist who took iron supplements
for almost 30 years until she was diagnosed with cirrhosis
of the liver--a result of iron poisoning, according
to her attorney.
In 1994, Brown filed a lawsuit against her doctor,
Thomas Haun, who she alleged had prescribed her iron
supplements. But the case never went to trial, because
of the five-year limit in medical malpractice cases.
Unfortunately, Brown's illness took longer than that
to develop. "We've conceded the injury could not occur
in just five years," says her lawyer, Larry Wobbrock.
Brown died of complications in 1997, but Wobbrock appealed
the case up to the Oregon Supreme Court, arguing that
the statute of ultimate repose is unconstitutional.
In March, the supremes deadlocked, allowing the lower
court's opinion to stand. In May, Wobbrock asked the
court to reconsider its decision.
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Willamette Week | originally
published July 14, 1999
