Ninth Circuit Invites Oregon Courts to Reconsider Remedies Clause Jurisprudence

In Fields v. Legacy Health System, (9th Cir. June 22, 2005), the Ninth Circuit, affirming a decision of Judge King, held that ORS 30.020 (wrongful death statute of limitations) and ORS 12.110(4) (medical malpractice statute of limitations) do not violate Article I, section 10, of the Oregon Constitution.  The court also held that Oregon's statutory wrongful death scheme does not violate Article I, section 20, of the Oregon Constitution.  The court declined to certify the constitutional questions to the Oregon Supreme Court on the ground that certification was improper under W. Helicopter Servs., Inc. v. Rogerson Aircraft Corp., 311 Or 361 (1991), because there is controlling precedent on point.

Nonetheless, Judge Gould, concurring in his own majority opinion (Judges Graber and Judge Berzon were the other judges on the panel), invited the Oregon Supreme Court to re-examine its conclusion that Oregon's wrongful death scheme does not violate Article I, section 10, given that the conclusion is predicated in part on the perhaps incorrect assumption that there was no right to recover for wrongful death at common law.  Judge Gould suggested that the Oregon court may want to bring Oregon jurisprudence into "alignment with the growing number of other jurisdictions that recognize a common law wrongful death action."

Thus, although the constitutionality of Oregon's wrongful death scheme would seem to be well-settled, Judge Gould has provided something of roadmap for re-opening the question.  I'm certain there will be litigants willing to follow it.

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