Tag Archives: product liability defense

Scott Brooksby Selected as a 2019 Oregon Super Lawyer for Product Liability Defense


Scott Brooksby has been honored every year for his product liability defense practice since the Oregon Super Lawyers award’s inception in 2008. He was honored once again for the year 2019.

No more than 5% of the lawyers in Oregon are selected for this honor each year.

Super Lawyers selects attorneys using peer nominations and evaluations, combined with independent research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement:

  • Verdicts/Settlements
  • Transactions
  • Representative Clients
  • Experience
  • Honors/Awards
  • Special licenses/certifications
  • Position within the law firm
  • Bar and/or professional activity
  • Pro bono and community service
  • Scholarly lectures/writings
  • Education/employment background
  • Other outstanding achievements


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

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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.

Scott Brooksby is co-planning the 2016 ABA Aviation Litigation National Institute

Scott Brooksby will be involved in planning the American Bar Association’s 2016 22nd Annual National Institute on Aviation Litigation in New York, New York.

This prominent, annual conference features seasoned aviation lawyers who present and educate on a variety of aviation litigation topics.  Scott is on the aviation subcommittee of the American Bar Association’s Mass Torts section.

Scott Brooksby has experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Scott has handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

Much of Scott’s practice is devoted to aviation law, and Olson Brooksby is one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads the firm’s aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.

Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.

While Olson Brooksby’s specialized aviation practice is headquartered in Portland, Oregon, the nature of the firm’s practice often takes its attorneys to various other geographical locations, particularly for investigations, witness interviews, and depositions.

Scott is experienced with a broad range of aviation law topics, and is familiar with allegations concerning: mechanical malfunctions due to airframe or component defects; improper repair or maintenance; improper weight and balance; weather; piloting and human factors; instruments and avionics; air traffic control; and even issues relating to bird strikes and lasers.

Federal Discovery and Admissiblity of Evidence of Prior Incidents in Product Liability Cases

Plaintiffs may achieve higher verdicts in product liability trials when there is evidence of prior claims establishing that the manufacturer had notice of the alleged defect in design, manufacture, or warning.  Therefore, in product liability litigation, most plaintiffs request discovery concerning prior claims, or incidents that did not give rise to formal claims, that are in any way related to the product.  For instance, a plaintiff’s lawyer might issue a broad discovery request for anything concerning prior incidents of any kind related to the model of product at issue or any version of that model.  Even more common and problematic are so-called “product line” requests that seek evidence of prior claims related to a broad range of allegedly similar products or similar models.

Requests for production concerning prior incidents might be routine for large companies that have large, sophisticated in-house legal teams and are likely to have storage, retrieval, and document retention policies, but such requests can be a terrible disruption for small businesses that may not have systems in place to handle aggressive discovery in litigation.

But no matter what size your client is, you should be prepared for a request for production seeking evidence of prior incidents and prior claims.  You should have discussions with your product liability clients early on in the case about the product’s incident and claim history, as well as potential discovery requests.

The first part of this article will discuss whether requests concerning prior incidents are actually discoverable.  We will discuss defense tactics for responding to requests for discovery concerning prior incidents, as well as representative cases from different U.S. federal court jurisdictions concerning discovery.

The second part of this article will discuss whether, even if discoverable, the evidence concerning prior incidents is ultimately admissible.  We will discuss strategies for preventing admission of evidence concerning prior incidents, as well as representative cases from different U.S. federal court jurisdictions concerning admissibility.    

Finally, the third part of this article will discuss strategies for assisting clients with the difficult process of discovery requests for evidence of prior incidents.

I. Whether requests concerning prior incidents are actually discoverable.

A. Defense tactics for responding to requests for discovery concerning prior incidents.

There is no single method for successfully defending against discovery requests for evidence concerning prior incidents.  Unfortunately, U.S. federal courts treat each case differently and, as explained below, various jurisdictions have different standards for the discovery of evidence of prior incidents.

That said, the facts and circumstances of each case are important, and any good defense will involve distinguishing the specific facts of your case from cases where the court allowed discovery.  Consider, for example, the distinguishing facts of the products, conditions, and intended uses at issue, particularly if you have a technical case.

Consider hiring an expert as early as possible and using your expert to assist you with defending against discovery requests.  Your can submit an affidavit from your expert explaining the differences between the incident involved in your case and the prior incidents.  The more technical your case, the more likely your expert will be useful and will be able to draw distinctions that the plaintiff is not prepared for.  An example of this might be important engineering differences in the product at issue versus the products involved in the discovery that plaintiff requests.

B. Representative cases from different U.S. federal court jurisdictions concerning discovery.

1) Discovery of evidence concerning prior incidents is generally allowed in                           federal court under Federal Rule of Civil Procedure 26(b)(1).

Federal Rule of Civil Procedure 26(b)(1) is broad and provides that discovery may be obtained as long as it is “relevant” and “reasonably calculated to lead to the discovery of admissible evidence.”  The advisory committee notes to Rule 26 provide that, “A variety of types of information not directly pertinent . . . could be relevant to the claims or defenses raised in a given action.  For example, other incidents of the same type, or involving the same product, could be properly discoverable . . . .”  Fed. R. Civ. P. 26 advisory committee’s note, 2000 amend., subdiv. (b)(1).

In Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 75 (D. Mass. 1976), the court underscored how broad discovery can be in federal products cases when it noted that, “most courts have held that the existence and nature of other complaints in product liability cases is a proper subject for pretrial discovery.”

2) Some jurisdictions (the Eighth Circuit, the Northern District of California, Kansas,       the Southern District of Indiana, Maryland, and the Western District  of                 Pennsylvania) require a threshold showing of relevance before the discovery is                   permitted.  After a threshold showing of relevance, the burden shifts to the                           defendant to demonstrate that any relevance is outweighed by the harm that would             result from the evidence being admitted. 

The ambiguous nature of the term “relevance” illustrates the problematic nature of the discovery phase of a lot of product liability claims.  Plaintiffs will make requests for “other incidents of the same type” or “other incidents involving” the product (or products, i.e., “all washing machines manufactured by defendant”) at issue or prior incidents with “similar circumstances”.

Some jurisdictions will require a “threshold showing of relevance” before evidence of prior incidents will be discoverable.  See, e.g., Hofer v. Mack Trucks, Inc., 981 F.2d 377, 380 (8th Cir. 1992) (“Some threshold showing of relevance must be made before parties are required to open wide the doors of discovery and to produce a variety of information which does not reasonably bear upon the issues in the case.”); Barcenas v. Ford Motor Co., 2004 WL 2827249, *2 (N.D. Cal. Dec. 9, 2004) (quoting with approval Hofer’s requirement of the threshold showing of relevance); McCoy v. Whirlpool Corp., 214 F.R.D. 642, 643 (D. Kan. 2003) (requiring that the discovery appear “relevant on its face”); Chavez v. DaimlerChrysler Corp., 206 F.R.D. 615, 619 (S.D. Ind. 2002) (the discovery must first appear to be relevant, and then “the party resisting the discovery has the burden to establish the lack of relevance by demonstrating that the requested discovery is of such marginal relevance that the potential harm occasioned by discovery would outweigh the ordinary presumption in favor of broad disclosure.”); Tucker v. Ohtsu Tire & Rubber Co., 191 F.R.D. 495, 497 (D. Md. 2000) (“even though it relates to a light truck tire, not a passenger tire as is at issue here, the plaintiffs have established threshold relevance, as required by Fed. R. Civ. P. 26(b)(1) and Fed. R. Evid. 401.”); Swain v. General Motors Corp., 81 F.R.D. 698, 700 (W.D. Pa. 1979), (where the plaintiff met the “prima facie showing” of relevance to support his discovery request for evidence “concerning prior motor mounts” that allegedly failed in his vehicle).

3) Some jurisdictions (the Western District of Michigan, the Eastern District of                     Louisiana, and the Southern District of New York) require that prior incidents be “similar” to the incident that gave rise to the underlying case before allowing the discovery of evidence of prior incidents.  Whether the prior incidents are “similar” depends on the particular court and the facts and circumstances. 

Most jurisdictions generally do not apply the “substantially similar test”—requiring that the conditions of past incidents be substantially similar to those in the underlying case—until the admissibility phase.  However, some jurisdictions do require some amount similarity between the prior incidents and the incident that gave rise to the underlying case before allowing discovery.

For example, in Lohr v. Stanley–Bostitch, Inc., 135 F.R.D. 162, 164 (W.D. Mich. 1991), the court explained that, at the discovery phase, the circumstances surrounding prior incidents must be “similar enough”.  By contrast, at the admissibility phase, “Evidence of similar accidents is admissible so long as the conditions in effect during the past incidents are ‘substantially similar’ to those at the time of the incident in question and the two events arise from the same cause.”  Id. (internal citation omitted).

In State Farm Fire & Cas. Co. v. Black & Decker, Inc., 2003 WL 103016, *4 (E.D. La. Jan. 9, 2003), the court applied a “sufficiently similar” test and explained that, “In product liability actions it is frequently difficult to judge which of a manufacturer’s products are sufficiently similar to the allegedly defective product to be subject to discovery.”  As in Lohr, the Eastern District of Louisiana court in State Farm distinguished the less-stringent similarity standard for the discovery phase from the “substantially similar” standard applied to the admissibility phase.  State Farm, 2003 WL 103016 at *4 (quoting Lohr, 135 F.R.D. at 163).

In Fine v. Facet Aerospace Products Co., 133 F.R.D. 439, 441, 443 (S.D.N.Y. 1990), the Southern District of New York explained that the prior incidents must be “sufficiently similar” in order to meet the “threshold showing of relevance”.  The court explained that, if the models of product in the prior incidents are different from the one at issue in the underlying case, discovery may be allowed if the models involved in the prior incidents “share with the accident-causing model those characteristics pertinent to the legal issues raised in the litigation.  For example, where a plaintiff alleged that three-wheel all-terrain vehicles are inherently unstable, he was entitled to discovery with respect to each of the manufacturer’s models.”  Id. (citing Culligan v. Yamaha Motor Corp., 110 F.R.D. 122, 124, 126 (S.D.N.Y. 1986)).

A court may require expert testimony to support the showing that the prior incidents were “sufficiently similar”, particularly when there are technical issues that require more knowledge than a lay person.  In Fine, the court explained that the plaintiff may have been allowed discovery if it had proffered “the affidavit of an expert in aviation engineering.”  Id. at 443.  Because plaintiff did not proffer any such expert testimony, the court denied the plaintiff’s motion to compel discovery concerning alternative designs for planes.  Id. at 443.

4) In the discovery phase, a few of jurisdictions (the Northern District of                               California, the Northern District of Illinois, and the District of New Mexico)                             have applied the more stringent “substantially similar” test that most courts do                     not apply until the admissibility phase. 

In a few jurisdictions, the plaintiff bears the burden of showing that prior incidents involving different products are “substantially similar” before discovery will be allowedFor example, not only has the Northern District of California required a threshold showing of relevance before allowing discovery concerning prior incidents, but it has also required plaintiffs to show “that the different products are substantially similar . . . .”  Barcenas, 2004 WL 2827249 at *3

In Piacenti v. General Motors Corp., 173 F.R.D. 221, 225-26 (N.D. Ill. 1997),  the court held that the plaintiff failed to establish that a different model of vehicle was “substantially similar” and denied the plaintiff’s motion to compel.  The court explained that, “allowing discovery of models that are not substantially similar to the model at issue is truly the equivalent of comparing apples and oranges where there are differences between the other models and the model at issue in terms of wheelbase, width, and center of gravity.”  Id. at 225.  The court further stated that discovery concerning similar models should only be allowed if “the similar models have the same component parts or defects”.  Id.

In Gonzales v. Goodyear Tire and Rubber Co., the court noted that the “substantially similar” test applies if the plaintiff “seeks to discover or to introduce evidence of the design, testing or performance of other similar products . . . . .”  No. CIV 05–941 BB/LFG, 2006 WL 7290047, slip op., *7-9 (D.N.M., Aug. 10, 2001) (italics added).

Expert testimony may be helpful for both sides in these cases, but such testimony must be more than “conclusory.”  For example, in Piacenti, the court denied the plaintiff’s motion to compel answers to interrogatories and its supplemental request for production concerning evidence regarding other vehicle models manufactured by the defendant.  173 F.R.D. at 222.  The denial was without prejudice so that an expert opinion could be filed stating that the models “are sufficiently similar to the Suzuki Samurai [so] that tests performed on the Samurai would be relevant in determining liability with respect to the Geo Tracker [the plaintiff’s vehicle].”  Id.  Although the plaintiff submitted expert affidavits, the court found that they consisted of only “conclusory” statements as compared to the defendant’s expert affidavits, which were more detailed.  Id. at 225.  Therefore, the court ultimately disallowed discovery relating to models other than the one at issue in the lawsuit.  Id. at 225-26.

II. Whether, even if discoverable, the evidence concerning prior incidents is ultimately admissible.

A. Strategies for preventing admission of evidence concerning prior incidents.

As with requests for discovery, there is no silver bullet to fight against requests for the admissibility of evidence concerning prior incidents.  However, because the requirements for admissibility can generally be more stringent than the requirements for discovery, it is almost always worth fighting the admissibility of evidence of prior incidents.

You will be better prepared to fight against the admissibility of prior incidents if you hire your expert early in the case.  Prepare your expert to distinguish your case from evidence of any prior incidents that plaintiff might seek to admit at trial.  Expert testimony will almost always be helpful to distinguish your case from the prior incidents.  A good plaintiff’s lawyer will have an expert who will try to show that the prior incidents are similar to the case at issue.  Prepare for this early by ensuring that your expert is familiar with the product and with any evidence of prior incidents that plaintiff will seek to admit.  Make sure that your expert’s opinions are based on detail and technical knowledge and that they are not conclusory.

The value of the case may be significantly affected if the evidence of prior incidents is admitted.  It is always beneficial to know early on in the case whether the evidence will be admitted and the ways in which that can affect the case value.  Therefore, try to file your motions in limine early on in the case to prevent the admissibility of evidence of prior incidents.  Litigators generally wait too long to do motions in limine, e.g., we wait until the federal court deadline, just prior to the trial.  Consider filing motions in limine early on, especially in a technical case or if you feel that the evidence of prior incidents could really hurt you in front of the factfinder.

B. Representative cases from different U.S. federal court jurisdictions concerning admissibility.    

1) In most jurisdictions, evidence of prior incidents is generally admissible as long as the other incidents are “substantially similar” to the incident in the case at hand. 

Evidence of prior incidents is generally admissible as long as the plaintiff demonstrates that the other incidents are “substantially similar” to the incident in the case at hand.  Cooper v. Firestone Tire & Rubber Co., 945 F.2d 1103, 1105 (9th Cir. 1991).  See also Albee v. Contl. Tire N.A., Inc., 2010 WL 1729092, *6 (E.D. Cal. Apr. 27, 2010) (internal citations and some quotation marks omitted) (“The Ninth Circuit has repeatedly held      that . . . ‘substantial similarity is required when a plaintiff attempts to introduce evidence of other accidents as direct proof of negligence, a design defect, or notice of the defect.’  Minor or immaterial dissimilarity does not prevent admissibility.” ); Steede v. General Motors, LLC, 2013 WL 142484, *9 (W.D. Tenn. Jan. 11, 2013) (“the Sixth Circuit has recognized the substantial similarity doctrine and held, for example, that evidence of prior accidents is admissible to prove a defect so long as the prior accidents involved the same model, design, and defect, and occurred under similar circumstances”).

What is “substantially similar” will be determined on a case-by-case basis, depending on your jurisdiction.

For example, in Ramos v. Liberty Mut. Ins. Co., 615 F.2d 334, 338 (5th  Cir.), modified on other grounds, 620 F.2d 464 (5th Cir. 1980), the plaintiff sought to admit evidence of a prior incident involving the collapse of an oil rig mast.  The court ultimately found that the prior incident was substantially similar.  It explained that, “Evidence of similar accidents might be relevant to the defendant’s notice, magnitude of the danger involved, the defendant’s ability to correct a known defect, the lack of safety for intended uses, strength of a product, the standard of care, and causation.”  Id. at 338-39.  The court found that evidence of the prior collapse could be relevant to show “notice of the defect, its ability to correct the defect, the mast’s safety under foreseeable conditions, the strength of the mast, and, most especially, causation.”  Id. at 339.

The court also stated that the admissibility of evidence of prior incidents concerning a product “depends upon whether the conditions operating to produce the prior failures were substantially similar to the occurrence in question.  The requirement that the prior accident not have occurred at too remote a time is a special qualification of the rule requiring similarity of conditions.”  Id. (internal citations and quotation marks omitted).

A plaintiff may use expert testimony to assist with its burden to show that the prior incidents are “substantially similar” and a defendant may use expert testimony to show that the prior incidents are substantially dissimilar.  Id. at 339-340.  See also Haynes v. Am. Motors Corp., 691 F.2d 1268, 1271–72 (8th Cir. 1982) (the defendant’s expert testified concerning dissimilarities between two different models of Jeeps and the court ultimately excluded evidence from the operator’s manual of the non-subject model).

Evidence concerning prior incidents may also be admissible because it is relevant “to show a culpable state of mind on the part of the defendant, e.g., persevering in a refusal to provide available safety features on a product despite knowledge of other similar accidents.”  Gonzales, 2006 WL 7290047 at *6 (citing Smith v. Ingersoll–Rand Co., 214 F.3d 1235, 1250 (10th Cir. 2000)).

2) In the Fourth Circuit and the Tenth Circuit, the substantially similar rule may    be             relaxed if the evidence of prior incidents is used to prove notice or awareness                     of a dangerous condition (rather than causation). 

The Fourth Circuit and the Tenth Circuit may relax the “substantially similar” rule if the evidence of prior incidents is used to prove notice or awareness of a dangerous condition rather than causation.  For example, in Benedi v. McNeil–P.P.C., Inc., 66 F.3d 1378, 1386 (4th Cir. 1995), the court explained that, “When prior incidents are admitted to prove notice, the required similarity of the prior incidents to the case at hand is more relaxed than when prior incidents are admitted to provide negligence.  The incidents need only be sufficiently similar to make the defendant aware of the dangerous situation.”  (Internal citations omitted.)

In Ponder v. Warren Tool Corp., the court noted that, “When evidence of other accidents is used to prove notice or awareness of a dangerous condition, the rule requiring substantial similarity of those accidents to the one at issue should be relaxed.”  834 F.2d 1553, 1560 (10th Cir. 1987).

III. Strategies for assisting clients with the difficult process of discovery requests for evidence of prior incidents.

     Clients often feel strongly that the prior incidents are not relevant and should have no bearing upon their lawsuit.  As any experienced lawyer knows, extensive requests for production can lead many clients who are less experienced with such requests to anxiously perceive that their entire brand, company, or even their own personal judgment is being put on trial.

Client resistance to production of evidence concerning prior incidents may be mitigated with repeated early discussion of discovery practice and relative risks.  Engage in detailed discussions before the requests are actually made.  If you practice in a jurisdiction with very liberal discovery rules, and if you have a particularly unsophisticated or reluctant client, you may even want to discuss the potential for sanctions in the event that discovery is wrongly withheld.

As soon as possible, you should have a discussion with your client concerning issues such as the assigned judge, the jurisdictional tendencies, whether or not production or admissibility of the evidence would be damaging, and whether the prior incidents may show prior notice of an alleged defect.

Product Liability Issues Arising From Rail Car Wheel Cracking and Fatigue

Olson Brooksby PC, product liability and railroad lawyers

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.

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.