Justice for Abuse Survivor Part II: The Statute Means What it Says

Oregon Court of Appeals holds that the legislature does not need to use “magic words” to make a statute of limitations apply to formerly time-barred claims.

Doe v. Silverman, 287 Or. App. 247 (2017)

In my earlier post, I described a case in which Roggendorf Law LLC assisted some Southern Oregon colleagues on appeal in an abuse case arising out of a psychologist, Arthur Silverman, molesting one of Silverman’s son’s young friends.

At the trial court, the case against the wife was dismissed (since reversed—Doe v. Sliverman (and Dixon), 286 Ore. App. 813  (2017)), and the case against the abuser was dismissed separately, on timeliness grounds.  The trial court said that because the claim against Silverman had at one point been barred by the statute of limitations, the Legislature could not “revive” that claim without specifically saying so in a later amendment to the child abuse statute of limitations.

To explain, a statute of limitations requires a lawsuit be brought within a certain time of the event happening, the identity of the perpetrator becoming known, or the discovery that certain conduct caused harm.  In the case of child abuse, Oregon allows an abuse victim until age 40 to bring suit, or 5 years from discovery of a connection between the abuse and some later, separate injury (remembering the abuse is not enough), whichever period is longer.  ORS 12.117.    These limits were put in place in 2009 with the help of my former firm and myself.  The prior limits were age 24 or 3 years from discovery of the connection between the abuse and some later consequence, such as addiction, or relationship problems.

The argument in Doe v. Silverman was that the 2009 amendments did not apply because the victim was over 24 before 2009, so his claim had “expired.”  The problem (and the reason I’m using quotes around “revive” and “expired”) is that a common law claim like battery and negligence cannot “expire.”  The statute of limitations is just a procedural defense—something that a defendant has to ask for, or he loses it—so the legislature doesn’t need to expressly “revive” old claims.

In 2009, the Oregon Legislature was clear that it meant for the statute to “apply to all causes of action, whether arising before, on or after the effective date of this 2009 Act” (emphasis added).  All means all.  Because our client’s common law claims could not “expire” they did not need to be “revived.”

A plain reading of a clear statute.  The Court of Appeals got it right.