Morris v. Dental Care Today, P. C

A claim under the Oregon Unlawful Trade Practices Act must “commence within one year” of discovery of “the unlawful method, act or practice;” the statute of limitations “begins to run when the plaintiff knows or should have known of the allegedly unlawful conduct.” ORS 646.638(6); Pearson v. Philip Morris, Inc., 358 Or 88, 137, 361 P3d 3 (2015). “Once a defendant moves for summary judgment,” the plaintiff must “produce evidence showing she can” meet her burden of proof. Sternberg v. Lechman-Su, 299 Or App 450, 456, 450 P3d 37 (2019).

Appellant contested the dismissal of her lawsuit against Respondents, two dentists.  Appellant assigned error to the trial court’s grant of summary judgment for Respondents.  On appeal, Appellant argued that: (1) her claim under the Oregon Unlawful Trade Practices Act (UTPA) was not time-barred and (2) she was not required to produce expert medical testimony in response to Respondents’ experts supporting their motion for summary judgment because the doctrine of res ipsa loquitor applies.  Respondents defended the trial court’s finding that Appellant’s claim was time-barred and that she was required to produce expert testimony.  A claim under UTPA must “commence within one year” of discovery of “the unlawful method, act or practice;” the statute of limitations “begins to run when the plaintiff knows or should have known of the allegedly unlawful conduct.”  ORS 646.638(6); Pearson v. Philip Morris, Inc., 358 Or 88, 137, 361 P3d 3 (2015). “Once a defendant moves for summary judgment,” the plaintiff must “produce evidence showing she can” meet her burden of proof.  Sternberg v. Lechman-Su, 299 Or App 450, 456, 450 P3d 37 (2019).  The Court held that Appellant’s claim was time-barred because she waited two years after knowing of the allegedly unlawful conduct before filing her complaint.  The Court held that Appellant was required to present expert testimony and that res ipsa loquitor did not apply in this case because it would not be obvious to a lay person that Appellant’s lost teeth were due solely to Respondents’ alleged negligence. Affirmed.