Tag Archives: Oregon product liability

Congratulations to Scott Brooksby for being honored in Oregon Super Lawyers!

BT8A7713R2collarshirt

No more than five percent of the lawyers in Oregon are selected for this honor.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts. He has experience in lengthy product liability trials, including the defense of a large aviation product manufacturer in a months-long trial.  He has also resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in case dismissals or other favorable results.  Scott has experience counseling product liability clients regarding the avoidance of litigation and unwanted governmental intervention.

Scott has litigated and tried catastrophic injury cases, particularly those involving allegedly defective products.  He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities.  In the area of product liability, Scott has exceptional knowledge and experience in transportation industry accidents, aviation crash litigation, component part product liability law, and drug and medical device cases.

Olson Brooksby has extensive experience with product liability law through decades of representing national and international manufacturers, sellers, distributors, and suppliers.  Our trial lawyers know how to effectively settle and try product liability cases and how to minimize risk and avoid future claims.

Scott Brooksby has experience handling and working with a wide variety of product liability experts regarding complicated factual and medical issues.  The law firm of Olson Brooksby is familiar with federal and state product liability law and regulations, and work with our clients to determine the best defense strategy when faced with a product liability lawsuit or potential lawsuit.

Economic Losses and Loss of Consortium Claims in Oregon Product Liability Cases

Economic Loss is Not Available in Oregon in Strict Product Liability Cases

The recovery of economic loss such as lost profits or lost sales is not recoverable in Oregon in product liability actions where strict liability is alleged.  In Brown v. Western Farmers Assoc., 268 Or 470, 480 (1974), the Oregon Supreme Court held that strict product liability was not designed or intended to offer a remedy for such commercial aspirations as sales and profits.  Oregon is a physical injury state and the Oregon appellate courts have uniformly held that strict liability is not a remedy for purely economic loss in the absence of a physical injury to persons or property.  Russell v. Deere & Co., 186 Or App 78, 84-85 (2003).

Lost Income to a Spouse Who Cares for an Injured Spouse is Not Recoverable as Part of a Loss of Consortium Claim in a Product Liability Action

It should also be noted that a spouse is not entitled to recover for lost income sustained as a result of having to care for her injured spouse as part of a claim for loss of consortium.  Axen v. American Home Products Corp., 158 Or App 292, 309-311, adh’d to on recons, 160 Or App 19 (1999).  In Axen, a husband and wife brought a strict product liability claim for injuries to the husband allegedly caused by a prescription drug.  The husband and wife alleged that the husband’s use of the drug Cordarone caused a loss of vision.  The wife argued that she was forced to take an early retirement in order to care for her husband and as a result, lost retirement benefits of $436,392.00.  The jury awarded the wife nearly one million dollars for loss of consortium.  The Oregon Court of Appeals reversed the wife’s award of economic damages.  The court stated it would adhere to the “traditional rule” that lost income is not a proper subject of a damage award for loss of consortium.  Id. at 311.

Product Liability Issues Arising From Rail Car Wheel Cracking and Fatigue

Max train

Rail car wheel cracking and fatigue can lead to significant product liability exposure and potential negligence claims.  Unless specifically exempted by another statute or federal regulation, Oregon’s product liability statutes, starting at ORS 30.900, govern product liability actions in Oregon, including products such as railroad car wheels.  This article will explore three important studies regarding rail wheel cracking and fatigue issues and will end by discussing critical product liability issues associated with rail wheels.  In rail wheel cases, the phenomena commonly known as rolling contact fatigue (“RCF”) can lead to cracking and even the uncontrolled discharge of portions or rail car wheels.  In extreme circumstances, the wheel itself may be subject to vertical cracking and disintegration.

Rail Car Wheel Cracking:  Three Scientific Studies

There is a vast body peer-reviewed scientific literature that examines the relationship between various manufacturing processes, uses and stresses on railway wheels, and metal fatigue and cracking.  This article explores three such scientific studies that focus on the susceptibility of railway wheels to wear and RCF damage.  As explained in further detail below, studies have found that rail wheel damage is influenced by the properties of the wheel material, including steel composition and hardening techniques.

Below there are links to each study discussed.  If, however, you cannot access the links and would like to review the studies, please contact Olson Brooksby.

The Molyneux-Berry, Davis, and Bevan Study

This study examined railway wheels on fleets from the UK and concluded that the materials that make up the wheels themselves influence the amount of wear and RCF damage that the wheels are subjected to.  Factors that contribute to wheel damage are the composition of the steel, the process by which wheels are manufactured, and loading during operation.

This study can be found here: http://www.ncbi.nlm.nih.gov/pmc/articles/PMC3914578/

The Liu, Stratman, Mahadevan Study

This study developed a 3D “multiaxial fatigue life prediction model” to calculate the life of a rail car wheel and to assist with predictions regarding the timeline of its fatigue.

This study can be found here: http://yongming.faculty.asu.edu/paper/fatiwheels-ijf.pdf

The Peixoto and Ferreira Study

In this study, fatigue crack growth rate behavior tests were performed according to ASTM E647 (2008).  The purpose of this study was to contribute to the development of accurate models that predict fatigue problems in rail car wheels in order to assist with maintenance and safety standards.

This study can be found here: http://www.deepdyve.com/lp/emerald-publishing/fatigue-crack-propagation-behavior-in-railway-steels-6SBquFt7Pn

Defenses to Rail Wheel Product Liability Claims

A common issue in rail wheel cases is the age of the wheel at issue and the amount of use it has received.  When an older wheel is involved, defense counsel for the manufacturer should look first for a defense based on statute of ultimate repose.  ORS 30.905 provides for a ten year statute of repose.  If the plaintiff does not file a claim for personal injury or property damage within ten years from the date the product was first purchased for use or consumption, the claim is barred.  Oregon has a strong statute of ultimate repose.  There are no “useful safe life” or other exceptions or rebuttable presumptions codified in the statute that provides for an absolute ten years.

Absent an ability to obtain a complete dismissal under the statute of ultimate repose, the three studies discussed above illustrate the variety of causation factors and scientific models concerning rail car fatigue issues.  Manufacturing materials and processes, steel fabrication techniques and materials for both wheels and rails, the nature of the loads, gradients, and cycles are all among the factors that provide fertile ground for defending rail wheel claims.

Discovery and Admissiblity of Evidence of Prior Claims in Oregon Product Liability Cases

Olson Brooksby handles a wide variety of product liability cases involving products such as helicopter engines, heavy equipment, steel, toys, tools, household appliances and chemicals, paints, and solvents.  We frequently work with clients who have had prior claims involving allegedly defective products.  In product liability litigation, plaintiffs’ lawyers almost always ask for documentation involving prior claims.  Usually, plaintiffs issue a broad request for documents regarding all prior incidents of any kind related to the model of product at issue or any version of that model.

The Standard for Discovery of Prior Claims

In Oregon, evidence regarding prior claims is generally discoverable.  ORCP 36 B(1).  In order for an opposing or other party to obtain discovery, the evidence should simply be relevant and reasonably likely to lead the discovery of admissible evidence.  Therefore, on a motion to compel, product liability defense counsel should expect that documentation concerning prior claims will be discoverable, particularly in cases concerning home appliances and other mechanical products.

An objection to a discovery request on the basis that the evidence may not be admissible at trial is not proper.  Oregon trial courts will allow discovery of evidence of prior claims if the products, conditions, or uses are merely “similar” as opposed to “identical.”

By way of a hypothetical example, suppose Large Bike Manufacturing Company manufactured a number of bikes during the past few months or years and the front rim of the tire was bending when bumps were hit that similar bikes were able to withstand.  Also suppose that a bicyclist was injured when the front rim on one of the bike models struck a speed bump even though the bicyclist was riding cautiously and reasonably.  On a motion to compel, most Oregon state court trial judges would order the production of all prior incidents of injury regarding other bike models with the same wheel, not just the model of bike that the bicyclist was riding.  The court would also likely order production of other claims of injury on all bikes, even if such injuries were caused by other mechanical failures.

The Standard for Admissibility of Prior Claims

The admissibility of evidence of other claims is governed by Oregon Evidence Code (“OEC”) 401, which defines relevant evidence; OEC 402, which provides that relevant evidence is generally admissible; and OEC 403, which provides for the exclusion of relevant evidence in the event prejudice, confusion, or undue delay associated with the admission of the disputed evidence, in this case of prior claims, outweighs the probative value or helpfulness to the trier of fact.  Whether evidence of prior claims is discoverable and whether such evidence is admissible are two distinct issues.

With respect to the admissibility of evidence of prior claims, as opposed to the mere discovery of prior claims, OEC 401 generally provides that evidence of similar prior conduct, events, accidents, or even negligence, is generally held to be inadmissible to prove negligence or lack of negligence in the case being litigated.

However, evidence of prior similar acts, conduct, or events, which Oregon courts universally have ruled includes prior claims, is often held admissible to prove causation, danger, knowledge, intent, or the existence of a particular defect.  One of the seminal cases on this issue is Benjamin v. Wal-Mart Stores, Inc., 185 Or App 444 (2002), rev den, 335 Or 479 (2003).  Admissibility of the allegedly similar act will depend on whether prior conduct or events occurred under “similar conditions and circumstances,” although identical circumstances are not required.  Lakin v. Senco Products, Inc., 144 Or App 52, (1996), aff’d, 325 Or 438 (1997).

Whether the conditions and circumstances are substantially similar enough to allow admission of the evidence of prior claims is a decision for the court and will be reviewed on appeal under an abuse of discretion standard, which is a high standard.  As noted above, identical circumstances or an identical product is not necessary for admission of such evidence. Generally, unless there is clear prejudice, evidence of prior claims will be admissible.  The judge will usually comment that defense counsel is free to engage in cross-examination on the differences in the claims and argue that they go to the weight of the evidence.

In a product liability case, regardless of what the product may be, defense counsel should be prepared for a ruling that evidence of prior claims is discoverable.  Counsel should also be prepared for a ruling that evidence of prior claims is admissible.  Therefore, it may be advantageous to file a motion in limine to exclude evidence of prior claims on the grounds that they are either dissimilar, or that there is insufficient information to even determine whether they are dissimilar.  The motion in limine should be filed before trial, so that even if the court admits evidence of prior claims, experts and witnesses can be prepared to address the prior claims in a way that minimizes any perceived wrongdoing.  Counsel should also consider the possibility that any product design changes may be considered “subsequent remedial measures” and should plan any motions in limine accordingly.

 

Federal Government Regulation of Consumer Product Safety and Mandatory Reporting of Consumer Product Defects to the CPSC

Olson Brooksby frequently counsels local and national clients on whether or not the consumer products they manufacture or sell contain a safety defect that they would be required to report to the Consumer Product Safety Commission.

Federal Regulation

The Congress of the United States established the Consumer Product Safety Act (“CPSA”), codified at 15 U.S.C. §§2007-2089.

Complete analysis of the CPSA is beyond the scope of this article.  Pursuant to the CPSA, Congress established the Consumer Product Safety Commission (“Commission”) to regulate consumer product safety in the United States.  Under the CPSA, the Commission has the power to develop regulations related to the safety of consumer products, which are generally contained in the Code of Federal Regulations.

Under 15 USCS § 2052(5), a “consumer product” means “any article, or component part thereof, produced or distributed (i) for sale to a consumer for use in or around a permanent or temporary household or residence, a school, in recreation, or otherwise, or (ii) for the personal use, consumption or enjoyment of a consumer in or around a permanent or temporary household or residence, a school, in recreation, or otherwise…”

Specifically excluded from regulation by the CPSC are tobacco, motor vehicles, pesticides, aircraft and aircraft components, boats, drugs and medical devices and food.  Even if these excluded products are purchased for consumer use, they are not subject to regulation or jurisdiction by the CPSC.   The Commission does tend to heavily regulate consumer products, especially children’s items, such as: car seats, children’s pajamas, strollers, cribs, toys, some recreational products, certain home appliances, and tools.  The CPSC has passed specific regulatory acts such as the “Children’s Flammable Pajamas Act” associated with consumer products that target vulnerable users, primarily children and vulnerable adults.   A link to the CPSC website, which contains useful product safety information, including information for manufacturers such as current product recalls, is found at http://www.cpsc.gov/.

The Requirement of Reporting Consumer Product Defects to the CPSC

Although complete analysis of reporting requirements are beyond the scope of this article, Section 15(b) of the CPSA establishes reporting requirements (“Section 15(b) reports”) for manufacturers, importers, distributors and retailers of consumer products.  In summary, each must notify the commission (generally within 24 hours) if they obtain information that “reasonably supports the conclusion” that a product (1) fails to comply with an applicable consumer product safety rule or with a voluntary consumer product safety standard, (2) fails to comply with any other rule, regulation, standard or ban under the CPSA or any other Act enforced by the Commission such as the Children’s Gasoline Burn Prevention Act, Refrigerator Safety Act or Flammable Fabrics Act, (3) contains a defect which could create a substantial product hazard, or (4) creates an unreasonable risk of serious injury or death.

Under the CPSA, a private right of action exists for any person injured by violation of a consumer product safety rule promulgated by the Commission.  Manufacturers should be aware that the CPSA contains some sharp teeth and courts may award attorney fees as part of the injured person’s recovery.  15 U.S.C. §2072.  Under the CPSA, the CPSC has broad enforcement powers and a number of tools to ensure the safety of consumer products.  However, under the CPSA, the CPSC is also charged with assisting manufacturers, distributors and retailers of products with known defects in the development of a “Corrective Action Plan” (“CAP”), and although the CPSC enforcement powers have sharp teeth, the CPSC is also focused on working to develop voluntary corrective action plans and engaging in cooperation during corrective action plan implementation.

Olson Brooksby frequently counsels manufacturers on whether to pass along reports they have received or internally-developed information that suggests that a product may contain a defect that would require reporting under Section 15(b) of the CPSA.  While comprehensive analysis of the Section 15(b) reporting requirements are beyond the scope of this article, the Commission has published a useful abbreviated publication that discusses reporting and product recalls.

Why Familiarity And Compliance With CPSC Mandatory Reporting Requirements Matters

Although it should go without saying, manufacturers, especially those focused on products for babies, children and household consumers (such as cleaning products, flammable products, etc.), must be aware of whether the Commission is considering or has established specific rules governing their products.  Manufacturers, distributors and retailers should be aware of the basic reporting requirements to the CPSC under Section 15(b) if they become aware of information that reasonably supports the conclusion that their product contains a defect and should voluntarily report.

The Commission has the power to require mandatory recalls, but will typically offer a manufacturer the option of conducting a voluntary recall before issuing a recall order.  Prudent manufacturers of consumer products, especially those for which the Commission has promulgated specific rules or standards, should have a recall plan developed in advance because, whether voluntary or mandatory, the Commission will expect the company to commence the necessary recall action plan quickly and such plans are typically very involved.  Any action taken by the Commission, whether in the form of corrective action or a recall can have serious consequences for manufacturing cycles and the costs associated with a recall can be very high.  For more on this issue, please feel free to contact our office.

 

 

Product Liability Claim Shape-Shifting: Harmonizing Your Defense When The Consumer Expectation Test and a Negligence Claim are Both in Play

As a firm that limits its practice primarily to aviation, product liability and high exposure negligence cases, Olson Brooksby is well aware of the many pleading traps in cases that involve both claims for strict products liability and negligence cases.  Oregon abolished the alternative “reasonable manufacturer” test more than 20 years ago and now the only proper jury instruction in a product liability case is the consumer expectation test.  In many product liability defense cases, counsel representing the product manufacturer, seller or distributor must harmonize the consumer expectation test with the so-called Fazzolari trilogy of cases in negligence cases.  Fazzolari v. Portland School District 1J, 303 Or 1 (1987) followed a series of legislative tort reforms in product liability cases and to some extent is considered by many to be the appellate courts’ response to the perceived overuse of the terms duty and breach.

The Fazzolari trilogy, held that, in Oregon, the general standard for negligence claims, including those in product liability cases, will be whether or not the dangerous defect (whether based on design, manufacturing, or warning) is reasonably foreseeable and caused harm to a protected interest of the plaintiff.  ORS 30.900 et seq.  In negligence cases, however, when there is a special relationship, such as teacher/student or fiduciary, then the general principles of foreseeability do not apply and the case reverts back to the traditional concepts of duty, breach, causation and damages.  In product liability cases, the harmonizing of these tests is critical.

The Consumer Expectation Test

Oregon is a consumer expectation test state.  The consumer expectation jury instruction is the only proper jury instruction for liability based on strict product liability in Oregon.  Under the consumer expectation test, the product must be “unreasonably dangerous” to be defective in a strict liability case.  Oregon law provides that, whether pleaded as a negligence theory or as strict liability, the case will still be governed as a product liability action.  Three types of defects are recognized: design defects, manufacturing defects, or failure to warn.

In design defect cases, risk-utility proof is not required to make a prima facie case.  To prevail on a product liability claim, the plaintiff must prove that the product was unreasonably dangerous.  In order to determine whether a product is “unreasonably dangerous” under Oregon law, the jury is instructed to apply the consumer expectation test.  Although there are thousands of products that may be the subject of a product liability action under a theory of strict liability of negligence, the plaintiff must prove, and the consumer expectation test provides, that the test is whether the product was “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics.”  McCathern v. Toyota Motor Corp., 332 Or 59, 77 (2001) (quoting RESTATEMENT (SECOND) OF TORTS §402A comment I (1979)).

The consumer expectation test is objective as applied.  Jurors may not use their own personal subjective views of whether or not the product contained conditions that they themselves would expect.  Similarly, they may not put themselves in the position of the injured plaintiff to make such a determination, but must apply the views of the community as a whole.  The McCathern decision also made clear that the consumer expectation test is the only test properly given to the jury in a strict product liability test.  For a good overview of Oregon product liability law, the McCathern decision is worth reading.  Oregon’s product liability statute is contained in ORS 30.900 et. seq.

The Negligence Claim

An understanding of negligence law in Oregon requires a brief discussion of pre- and post-1987 common law decisions.  Prior to 1987, Oregon generally held to a conventional approach to negligence cases, requiring the existence of a duty, a breach of that duty, causation, and damages.  However, since the cases decided in the period around 1987, common law negligence in Oregon now depends on whether the defendant’s conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.

This change from the strict adherence to the traditional common law elements of duty, breach, causation, and damages was a result of the Oregon appellate courts’ perceived overuse of the cliché “duty” or “no duty.”  Oregon courts, therefore, began to encourage juries and judges to decide each case on its own facts.  Duty continues to play an affirmative role when the parties invoke a particular status, relationship or standard of conduct beyond the standards generated by common law.  This was the result of the so-called Fazzolari principle, which now governs negligence law in Oregon.  See Fazzolari v. Portland School District 1J, 303 Or 1 (1987).

Fazzolari typically requires a three part test:

  1. Determine whether a particular status or relationship exists;
  2. If so, analyze that status, relationship, or standard to determine whether a “duty” beyond that of ordinary care exists;
  3. If such a standard, status or relationship is not alleged, then analyze the case under principles of general negligence based on foreseeability of risk of harm.

Typically, the kinds of relationships that invoke a duty beyond that of ordinary care are found in fiduciary duty cases or in cases where the parties have a particular contract or status.  The duty beyond that of ordinary care could also be invoked under a particular statute or rule.  If there is a special relationship, then the rule of general foreseeability does not apply.  Rather, if a special relationship exists, then the plaintiff can argue that the defendant had a duty beyond that of ordinary care.  Based on the limited information available to date, we do not see anything in the facts of this case that would suggest a special relationship between Cadet and the Huo family that would require a duty beyond that of ordinary care.

Negligent Infliction of Emotional Distress

Oregon is a physical impact state as it relates to pursuit of a claim for negligent infliction of emotional distress (NIED).  Oregon subscribes to the physical-impact rule, meaning that damages arising from purely emotional or psychological upset (that is, NIED) are not typically recoverable for a defendant’s unreasonable actions or failure to act unless there is an accompanying physical impact to the party seeking relief, no matter how slight.  In any case where a plaintiff is seriously injured, and there is also an injury to a spouse or close family member, the court and jury would almost certainly find (and it would likely be reversible error to not so find) that there was an accompanying physical impact as a result of plaintiff’s injuries.   However, a plaintiff may also simply allege a claim for noneconomic damages incorporating the alleged NIED claim as part of the negligence claim.