Category Archives: Manufacturing

Birds, Pets, Lasers, Stowaways, and Other Hot Topics in Aviation

Hot topics in aviation litigation include birds, pets, lasers, and stowaways.  Each pose the danger of catastrophic mass torts.

Bird and animal strikes pose an increasing danger to commercial, military and general aviation.  Strikes result in death and serious injury to passengers and crew, and soaring costs for aircraft damage.  Bird strikes are the second leading cause of death in aviation accidents.

According to Boeing, the first bird strike was recorded by the Wright Brothers in 1905.  The greatest loss of life directly linked to a bird strike occurred on October 4, 1960, when a Lockheed L-188 flying as Eastern Air Lines Flight 375, flew through a flock of common starlings during take-off from Logan Airport, damaging all four engines. The plane crashed into Boston harbor killing 62 of the 72 passengers on board.  (Last visited 4/19/16).

Other major bird strike incidents include:

  • United Airlines Flight 297. On November 23, 1962, a Vickers Viscount 745D crashed near Columbia, Maryland after striking a flock of whistling swans while cruising at 6,000 feet.  The impact caused the horizontal stabilizer to separate, leading to loss of control.  All seventeen people on board were killed.
  • Ethiopian Airlines Flight 604. On September 15, 1988, a Boeing 737-200 ingested a flock of speckled pigeons as it took off from Bahir Dar, Ethiopia.  Both engines failed immediately, and the ensuing belly landing caused a fire that killed 35 passengers.
  • Leadair UniJet. On January 20, 1995, a Dassault Falcon 20 sucked lapwings into the No. 1 engine on takeoff, which caused an uncontrolled engine failure and a fire in the airplane’s fuselage; all 10 people on board were killed.
  • S. Air Force Boeing E-3. On September 22, 1995 the AWACS aircraft crashed shortly after takeoff from Elmendorf AFB. The aircraft lost power in both port side engines after the engines ingested several Canada geese during takeoff.  The geese had been disturbed during the takeoff of a Hercules transport moments earlier.  After reaching 250 feet, the plane crashed about two miles from the runway, killing all 24 crew members on board.
  • Ryanair Flight 4102. On November 10, 2008 a Boeing 737-8AS on final approach to Rome Ciampino Airport sustained 90 bird strikes, all from starlings.  After one engine was damaged, and the other engine ingested birds, the crew managed an emergency landing.  There were 10 injuries.  The plane, which was only eight months old, was a total loss.
  • US Airways Flight 1549. On January 15, 2009 an Airbus A320-214 lost power in both engines after multiple strikes with Canada geese shortly after takeoff from LaGuardia Airport.  About three minutes after the loss of all power, the flight crew conducted a water landing on the Hudson River.  150 passengers and five crew members sustained a total of 95 minor and five serious injuries.
  • PHI Inc., Charter. On January 4, 2009, a Sikorsky S-76C crashed into marshland about seven minutes after takeoff near Amelie, Louisiana, killing two pilots and six of the seven passengers. The helicopter’s impact with a red-tailed hawk jarred the fire suppression handles loose, which pushed the engine controls to idle, depriving the engines of fuel.

Boeing has compiled extensive data on bird strikes:

  • More than 219 people have been killed as a result of bird strikes since 1988.
  • Between 1990 and 2009, bird and mammal strikes cost the U.S. civil aviation complex $650 million per year.
  • The U.S. Air Force sustains approximately $333 million dollars in damage per year due to bird strikes.
  • About 5,000 bird strikes were reported by the Air Force in 2012.
  • About 9,000 bird and other wildlife strikes were reported for U.S civil aircraft in 2009.
  • The FAA has identified 482 species of birds involved in strikes from 1990-2012.
  • Between 2001 and 2011, 4066 engines were damaged in 3,935 bird strikes. This resulted in a wide range of outcomes including aborted takeoffs, engine shutdowns, and crashes.  (Last visited 4/19/16).  (Last visited 4/19/16).

Factors Contributing to the Rise in Bird Strikes

  • The North American non-migratory Canada goose population increased from 1 million birds in 1990 to 4 million birds in 2009. Concentrations are particularly high at JFK airport and surrounding regions, with the ample grass and wetlands, but populations of various sizes are found near airports across the country.
  • A twelve pound Canada goose struck by an airplane moving at 150 miles per hour during takeoff generates the kinetic energy of a 1000 pound weight dropped from a height of ten feet.
  • Nesting populations of bald eagles increased from 400 pairs in 1970 to 13,000 pairs in 2010. Between 1990 and 2009, 125 bald eagle strikes were reported.  The body mass of a bald eagle is 9.1 pounds for males and 11.8 pounds for females.
  • Finally, the population of European starlings is now the second most prevalent bird species in America, numbering over 150 million. Often called “silver bullets,” they fly at high speed and have a body density that is 27 percent greater than gulls.  (Last visited 4/19/16).

Population Management Techniques

In January, 2009, U.S. Airways Flight 1549 landed on the Hudson River after both engines ingested Canada geese.  New York City Mayor Michael Bloomberg declared war on geese.  Suzanne Goldenberg, New York Declares War on Geese to Prevent Airport Bird Strikes, The Guardian (June 12, 2009)  (Last visited 4/19/16). A mayoral steering committee gave approval to the USDA to cull geese in a 450 mile area encompassing JFK, LaGuardia and Newark airports.  Principal methods of population control include:

  • Each summer teams of USDA goose catchers capture geese which, in the molting condition cannot fly, including offspring which are then take to slaughterhouses and killed. Between 2009 and 2010, 2911 geese were killed.
  • The USDA reports that 80 percent of Canada geese are resident, and remain in place, rather than migrate. The government and airport operators strongly advocate for the culling of non-migratory birds.
  • Discouraging nesting and grazing.
  • Letting grass grow taller, planting unpalatable grasses, reducing standing rainwater, and oiling eggs to prevent hatching.
  • Firing pyrotechnics and propane cannons.
  • Use of chemical repellants.
  • Population exclusion.
  • Use of visual repellants.
  • Tactile repellants.  (Last visited 4/19/16).

Potential Liability for Airport Operators

Airport managers must exercise due diligence in managing wildlife hazards to avoid serious liability issues.  The U.S. Code of Federal Regulations requires Part 139-certificated airports experiencing hazardous wildlife conditions as defined in 14 C.F.R. Section 139.337 to conduct formal Wildlife Hazard Assessments.  The certificated airports must develop Wildlife Hazard Management Plans as part of the certification standards.  Airports are required to employ professional biologists trained in wildlife hazard management. 14 C.F.R. Section 139.337 and FAA Advisory Circular 150/5200-36.  Failure to comply with the regulations can give rise to liability for airport operators.  (Comprehensive overview of applicable regulations and methods, last visited 4/19/16).

The USDA’s Airport Wildlife Hazards Program plays a leading role in the supervision and management of wildlife strikes with aircraft.  Wildlife challenges are by no means limited to birds.  Airports across the country are struggling with wildlife management.  (Last visited 4/19/16).

In addition to reports of aircraft strikes involving nearly 500 bird species, other wildlife strikes reported during the last decade involved nearly 100 terrestrial animals including mongoose, bears, badgers, moose, pigs, burros, horses, and even camels, in addition to 137 reptile strikes.

For additional background information, see “Wildlife Strikes to Civil Aircraft in the United States, 1990-2001”, United States Department of Agriculture, Federal Aviation Administration, United States Department of Agriculture, July, 2012.  Report published for the Federal Aviation Administration Office of Airport Safety and Standards.  (Last visited 4/19/16).  (Alternate link, last visited 4/19/16).

Regulations for Aircraft and Engine Manufacturers

In response to the Eastern Airlines crash in Boston in 1960 mentioned above, The FAA issued Advisory Circular 33-1 “Turbine Engine Foreign Object Ingestion and Rotor Blade Containment Type Certification Procedures,” which provided guidance for compliance with FAA regulations §3313 and §3319 requiring that engine design minimize unsafe condition.  For additional information on the scope of required fan and engine construction, see Christopher Demers, “Large Air Transport Jet Engine Design Considerations for Large and for Flocking Bird Encounters”, DigitalCommons@University of Nebraska-Lincoln (2009).  (Last visited 4/19/16).

Aircraft Wheel Well Stowaways and Potential Mass Torts

In recent years, wheel well stowaways have received increasing media attention and public interest.  Statistics on the manner of death and the factors that keep stowaways alive are not precise, and there are differing standards for investigation internationally.

Many, if not most, of these incidents arise from the unfortunate political, social, economic or family circumstance of the stowaway.  However, assuming the physiological obstacles of hypothermia and hypoxia are overcome, one major question remains: What legal implications are raised if a stowaway with destructive intent caused a major tragedy?

Usually a stowaway jumps into an aircraft by hanging on to the airliner’s landing gear as the plane takes off, or climbs into the gear compartment before takeoff.  The force of the wind can easily make a stowaway fall to his or her death.  Alternatively, many stowaways are crushed in the confined space of the compartment when the gear is retracted.  Others appear to have died from the heat produced by the engines of the aircraft, or fallen while unconscious when the gear is extended.  The overwhelming majority of stowaways are young males.

According to the FAA, the first recorded case of an aircraft stowaway occurred on June 13, 1929. The Bernard monoplane Oiseau Canari, piloted by Frenchmen Assollant Lefevre, had trouble taking off in spite of its powerful Hispano Suiza engine. The crew later discovered the cause of the problem: a stowaway on board. Despite the overload, the plane landed in Spain after 22 hours of flight.  (Last visited 4/19/16).

Physiological threats for a stowaway are minimal at altitudes up to 8,000 feet, but at higher altitudes reduced atmospheric pressure and partial pressure of oxygen may have deleterious effects.  At all cruising altitudes, the partial pressure of oxygen in a wheel well cannot sustain consciousness.  Additionally, at altitudes of about 20,000 feet, stowaways may develop decompression sickness.  Id.

All of the scientific research suggests that, after takeoff, a stowaway faces two life-threatening conditions during flight: hypoxia and hypothermia.  In 1993, the fatality of a 19-year old who stowed away in the wheel-well of a plane bound from Colombia to JFK was one of the 13 wheel-well stowaway flights documented in a report by the U.S. FAA, Civil Aeromedical Institute (CAMI), and Flight Safety Foundation as having frozen to death. (FSF). .  (Last visited 4/19/16).

Some experts suggest that survival rates in young people may be higher because their brains more readily approach to a “virtual hibernative state,” where their bodies become temporarily more adaptable to trauma.  (Last visited 4/19/16).

According to the FAA, from 1947-2014 there have been 94 flights involving 105 people who stowed away worldwide.  Of those 105 people, 80 died and twenty-five survived.  The twenty-five people who survived represent a 23.8 percent survival rate.

In 2014 a sixteen-year-old California boy jumped a fence at San Jose International Airport and squeezed into the wheel-well of a flight bound for Maui, where he emerged 5 hours later, in good health.  Experts surmised that the teen’s youth could be an advantage, as the brains of young people adapt more easily to hypothermia and hypoxia, for reasons that are not completely understood.  (Last visited 4/19/16).

Similarly, in June, 2015, a 21-year old Indonesian man hid in the wheel well of a Garuda Indonesia flight from Sumatra to Jakarta. visited 4/19/16).

Possible Liability

There may be a number of consequences of security breaches by aircraft wheel well stowaways and their on-board actions, despite the present physiological obstacles.  Among these include:

  • In the event of a crash, mass tort litigation by innocent passengers against airlines, airports, governments and contractors arising from security breaches.
  • Widespread concern about security at public, airline, security provider, airport, and government levels which leads to additional legislation, regulation, or policy.
  • Other terrorist acts such as ransom demands or extortion of other conditions by extremists determined to cause a catastrophe through a stowaway with destructive or disruptive capability.
  • Government levied fines for airlines, airports, private security companies, local police, and federal agents based on security breaches.
  • Increased security measures imposed on airport, airline, local, state and federal authorities.
  • Lawsuits by agencies, airlines or security agents against the indigent stowaways are unlikely, although deportation is possible.

Wheel well stowaway events appear to be on the rise, and each event is highly publicized.  However, these events have not resulted in widespread litigation.  The only litigated case brought by the family of a stowaway involved sixteen-year-old Delvonte Tisdale.  Tisdale ran away from home on November 14th, 2010.  A day later his body was found mangled in a Boston suburb.  Authorities determined that Tisdale likely sneaked onto the tarmac of Charlotte-Douglas International Airport and climbed into the wheel well of US Airways Flight 1176, bound for Boston.

Tisdale’s family sued US Airways, The airport, and the City of Charlotte alleging that the defendants negligently failed to ensure people could not access restricted areas.  Among the failure to warn claims was an allegation that the defendants failed to warn of the dangers of entering an aircraft as a passenger through the wheel well.  (Last visited 4/19/16).

The judge ultimately disagreed with Tisdale’s family and dismissed the case.  Siding with Charlotte City Attorney Robert Hagemann, the judge ruled in July, 2013 that Tisdale was negligent in his actions and that the city is not responsible for people who breach security.  (Last visited 4/19/16).

The breach of security in the Tisdale case raised questions about airport security.  If a 16-year-old, who had never flown before could evade airport security measures, then why not a terrorist?  With the proliferation of wheel well stowaways, it is likely only a matter of time until a tragic mass tort occurs.

Aircraft Laser Strikes

Reports of aircraft targeting with handheld ground lasers have been rising sharply.  In 2006, there were 384 reported incidents.  By 2014, there were 3,894 reported incidents.  In 2015, there were 7,702 reported incidents.  The FAA has recorded approximately 22 aircraft laser strikes per day in 2016.  (Last visited 4/19/16).  (Last visited 4/19/16).   (Last visited 4/19/16).  (Last visited 4/19/16).

In a widely publicized recent incident, a Virgin Atlantic flight originating at Heathrow bound for New York with 252 passengers on board was forced to turn back after a flight crew “medical issue” was caused by a laser strike shortly after takeoff.  (Last visited 4/19/16).

Exposure to laser illumination may cause hazardous effects such as pain, watery eyes, headaches, flash-blindness, distraction or disorientation, loss of depth perception, and aborted takeoffs or landings, in addition to danger during lower level flight.

In the United States, an area with high numbers of laser strikes is the 34 counties encompassed within the United States Judicial District for the Eastern District of California, a judicial district which has been vigorously prosecuting laser strike offenders and securing a large number of convictions resulting in prison sentences and fines. (Albuquerque, Chicago, Cleveland, Houston, Los Angeles, New York City, Philadelphia, Phoenix, Sacramento, San Antonio, and San Juan all have high incidence of laser strikes.)  As recently as March 7, 2016, that office secured a guilty plea from a thirty-five year-old man with a powerful green laser, about the size of a flashlight in his pocket.  The man pleaded guilty to multiple strikes on a California State Highway Patrol airplane. (Last visited 4/19/16).

The increase in reports of ground based lasers targeting flying aircraft may be due to a number of factors, including the increased availability of inexpensive laser devices on the internet, higher power lasers which can strike aircraft at higher altitudes, and increased reporting by flight crews.  Regulatory power for laser light products is delegated to the FDA, and its regulations are found at 21 C.F.R. § 1010.

While some jurisdictions have made interdiction efforts using helicopters and other improved tracking methods, catching laser offenders is difficult.  The devices are small, and when extinguished can be easily concealed and the location of the user can be in sparsely populated areas.  To respond to the increasing attacks, the FAA launched the Laser Safety Initiative, which provides education on laser hazards and events, news, law and civil penalties, and encourages reporting.

The latest reports indicate that aircraft illuminations by handheld lasers involve green lasers rather than red.  This is significant because green lasers are 35 times brighter than red, and the wavelength of green lasers is close to the eye’s peak sensitivity when they are dark-adapted.  FAA flight simulation studies have shown that the adverse visual effects from laser exposure are especially debilitating when the eyes are adapted to the low-light level of a cockpit at night.  (Last visited 4/19/16).

Restricted airspace surrounding commercial airports, in particular, can provide federal, state and/or local criminal penalties for violation with a laser, even if the operator is not operating the laser within the space, but merely causes the beam to intersect the controlled airspace to target an aircraft.  In the United States, laser airspace guidelines can be found in FAA Order JO 7400.2 (Revision “G” as of April 2008).  Chapter 29 of the Order provides a comprehensive overview of the FAA’s laser guidelines.

In 2011, the FAA announced plans to impose civil penalties against people, including the parents of juveniles, who point a laser into the cockpit of an aircraft.  (Last visited 4/19/16).  The maximum administrative penalty is a fine of $11,000.

The FAA released a legal interpretation which concluded that directing a laser bean into an aircraft cockpit could interfere with a flight crew performing its duties while operating an aircraft, a violation of FAA regulations.  (Last visited 4/19/16).  The FAA conducted an analysis of 14 C.F.R. § 91.11 which provides that, “[n]o person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember’s duties aboard an aircraft being operated.”  However, the FAA standard for liability is higher than the standard for criminal liability under 18 U.S.C. §§ 32 and 39A.

Federal regulations prohibiting interference with a crewmember in the performance of their duties had initially been adopted in response to hijackings.  However, the FAA legal interpretation concluded that nothing in the regulation specified that the person interfering must be on the airplane.  Previously, the FAA had taken enforcement action only against passengers on-board the aircraft that interfere with crewmembers.  The maximum civil penalty is $11,000.  By June, 2012, the FAA had initiated 28 enforcement actions.  (Last visited 4/19/16).

On February 14, 2012, President Obama signed Public Law 112-95.  The FAA Modernization and Reform Act of 2012, Section 311 amended Title 18 of the United States Code (U.S.C) Chapter 2 § 39, by adding § 39A, which makes it a federal crime to aim a laser pointer at an aircraft.  (Last visited 4/19/16).  Prior to 2012, federal prosecutions of laser illuminations of aircraft were initiated pursuant to 18 U.S.C. § 32(a)(5), which prohibits interference with the safe operation of an aircraft.  Aiming a laser at an aircraft is also prohibited by many state laws.

Between 2005 and 2013, there were 17,725 reported laser strikes in the United States, resulting in 134 arrests.  This data suggests that even when limiting the calculation to reported incidents, there is only a 0.75 percent chance of getting caught; a percentage that would decrease if unreported incidents were also considered.  There were 80 convictions among the 134 arrests. One reason for the conviction rate of 60 percent is that some who were arrested were minors who were never formally charged.  (Last visited 4/19/16).

One high-profile case involved Sergio Rodriguez, who received a 14-year prison sentence after he was convicted of lasing police and medical helicopters in August, 2012.  Karen Escobar, the Assistant United States Attorney for the Eastern District of California who prosecuted the Escobar case, has pursued more cases against laser perpetrators than any other federal prosecutor.  Escobar was quoted as saying:

“At sentencing, [Rodriguez] did not accept responsibility for his actions; he blamed his 2- and 3- year-old children. I believe the evidence showed the laser was a dangerous weapon, and there was intention, supporting a guideline sentence of 168 months. I would not call it harsh. I would say it is a penalty that fits the crime, but I believe that it will have a deterrent effect, and I hope it will.”  Id.

The Ninth Circuit has since reversed Rodriguez’ conviction for violation of 18 U.S.C. § 32 and remanded for resentencing for the Section 39A violation.  The Ninth Circuit found that the evidence did not support proof of the willfulness requirement for a Section 32 violation, noting that Section 32 was intended to apply to the bin Ladens of the world, not knuckleheads like Rodriguez.  On remand, the district court imposed the maximum penalty of five years for the Section 32 violation.

Much of the current focus on laser strikes focuses on interdiction and criminal prosecution.  The potential for a laser beam disabling a flight crew, and resulting in a mass tort, creates civil liability questions which have yet to be resolved.

Animal Passengers: Is it a Pet, a Service Animal, an Emotional Support Animal, Or Something Else, and Does It Get a Ride?

Walking through any large airport in 2016, it is likely that departing and arriving passengers will see any number of animals and a wide variety of species, shapes, and sizes.  Dogs, cats, birds, rodents, reptiles, pigs and even miniature horses are all found in airports waiting to board.  The distinction between service animals, companion animals, emotional support animals, and pets may not always be clear.

Transport of service animals, including emotional support animals is governed by the Air Carrier Access Act (“ACAA”), 49 U.S.C. § 41705 (1986), which incorporates provisions consistent with the Americans With Disabilities Act, 42 USC § 126 (1990).  In contrast to service animals, transport of pets is generally done for an additional fee, which can be significant.  Transportation of pets is generally governed by airline and airport policy, so long as policy is consistent with FAA, TSA, USDA and DOT rules and regulations.  This can lead to arguably conflicting policies and practices by airports and carriers.

Animals and the Air Carrier Access Act

The ACAA prohibits discrimination by U.S. and foreign air carriers on the basis of physical or mental disability.  In 1990, the U.S. Department of Transportation promulgated the official regulations implementing the ACAA.  Those rules mandate nondiscrimination on the basis of disability in air travel.  14 CFR Part 382.

The implementation regulations in Part 832, and guidance publications prepared by DOT provide guidance for airline employees and people with disabilities in understanding and applying the ACAA and the provisions of Part 382 with respect to service animals in determining:

(1) whether an animal is a service animal and its user a qualified individual with a disability;

(2) how to accommodate a qualified person with a disability with a service animal in the aircraft cabin; and

(3) when a service animal legally can be refused carriage in the cabin.

The 1996 DOT ACAA guidance manual defines a service animal as “any guide dog, signal dog, or other animal individually trained to provide assistance to an individual with a disability. If the animal meets this definition, it is considered a service animal regardless of whether it has been licensed or certified by a state or local government.” “Guidance Concerning Service Animals in Air Transportation,” (61 FR 56420-56422, (November 1, 1996)).

In 2003, DOT clarified the previous definition of service animal by making it clear that animals that assist persons with disabilities by providing emotional or psychiatric support qualify as service animals.  The definition of service animal was modified to clarify that airlines had authority to require that passengers provide documentation of the individual’s disability and the medical necessity of the passenger’s travel with the animal in cases involving emotional support animals and psychiatric service animals

The DOT has continued to update the guidance materials.  Nondiscrimination on the Basis of Disability in Air Travel, 73 FR 27614, May 13, 2008 as modified by: Correction Notice of 74 FR 11469, March 18, 2009, Correction Notice of 75 FR 44885, July 30, 20010.  (Last visited 4/19/16).

Also of note in the DOT guidance materials:

  • Pets are not service animals.
  • Some unusual service animals, including snakes, other reptiles, ferrets, rodents and spiders pose unavoidable safety and/or public health concerns and airlines are not required to transport them in the cabin.
  • Other unusual service animals such as miniature horses, pigs and donkeys should be evaluated on a case by case basis.
  • When Part 382 was first promulgated, most service animals were guide or hearing dogs. Since then, a wider variety of animal (g., cats, monkeys, etc.) have been individually trained to assist people with disabilities. Service animals also perform a wider variety of functions than ever before (e.g., alerting a person with epilepsy of imminent seizure onset, pulling a wheelchair, assisting persons with mobility impairments with balance) which can make it difficult for airline employees to distinguish service animals from pets, especially when a passenger does not appear to be disabled, or the animal has no obvious indicators that it is a service animal.
  • People with disabilities use many different terms to identify animals that can meet the legal definition of “service animal.” These range from umbrella terms such as “assistance animal” to specific labels such as “hearing,” “signal,” “seizure alert,” “psychiatric service,” “emotional support” animal, etc. that describe how the animal assists a person with a disability.
  • In a nutshell, the main requirements of Part 382 regarding service animals are:
    • Carriers shall permit dogs and other service animals used by persons with disabilities to accompany the persons on a flight. § 382.117(a).
    • Carriers shall accept as evidence that an animal is a service animal identifiers such as identification cards, other written documentation, presence of harnesses, tags or the credible verbal assurances of a qualified individual with a disability using the animal.
    • Carriers shall permit a service animal to accompany a qualified individual with a disability in any seat in which the person sits, unless the animal obstructs an aisle or other area that must remain unobstructed in order to facilitate an emergency evacuation or to comply with FAA regulations.
  • If a service animal cannot be accommodated at the seat location of the qualified individual with a disability whom the animal is accompanying, the carrier shall offer the passenger the opportunity to move with the animal to a seat location in the same class of service, if present on the aircraft, where the animal can be accommodated, as an alternative to requiring that the animal travel in the cargo hold § 382.117(c).
  • Carriers shall not impose charges for providing facilities, equipment, or services that are required by this Part to be provided to qualified individuals with a disability § 382.31.

In one recent case, a Washington State trial court analyzed the requirements of the ACAA as applied to an injury to a passenger caused by a Rottweiler service dog.  Sullivan v. Alaska Air Group, Inc., et al., Spokane County Case No. 15-02-00227-3, February 29, 2016.  Defendant owner of the Rottweiler was initially seated in back of the plane, but moved to row one to accommodate the size of the dog.  Plaintiff was seated in row two.  On arrival in Spokane, the dog allegedly bit plaintiff’s hand as she disembarked.

Plaintiff contended the airline had a duty to protect her and that the animal posed a foreseeable risk.  The airline argued that the ACAA preempted, either through conflict or field preemption, the plaintiff’s claims.  In conducting a preemption analysis, the court noted that airline passenger safety in regards to service animal is pervasively regulated by the ACAA sufficient to find that federal law expressly preempts and state standards of care.

The court granted the airline’s motion for summary judgement based on ACAA preemption.  The court noted that the requirements of 14 C.F.R. § 382.117 did not preclude the Rottweiler from riding on the plane.  The airline established, in satisfaction of the statutory requirements that the animal was, in fact, a service animal and they also determined that the animal did not present either a direct threat to the health and safety of others or a significant threat to the disruption of airline service.  Evidence was presented that the dog flew on the carrier or its partners twelve times previously without incident. Finally, there were harness markings or other credible assurances provided to establish that the dog was a service animal.

Animals present airlines and airports with a minefield of compliance, liability, public relations and customer service issues which range from fundamental flight safety, to combating abuses of the ACAA in order to obtain free plane tickets for pets.  In many cases, it may come down to a judgment call about whether the animal can safely be accommodated, or whether it will disrupt, or even endanger the flight.  Airlines also face very high fines for failing to accommodate legitimate service animal accommodation requests.

In January, 2016, a passenger brought a live turkey onto a Delta Airlines flight, claiming the animal was needed for emotional support.  Delta noted that the passenger had complied with the rigorous requirements of the ACAA which included providing documentation from a mental health professional that the animal’s companionship was necessary for travel.

Delta’s spokesperson noted that any therapist can sign off on any kind of animal, however, snakes, spiders and farm poultry are not acceptable.  Animals allowed to board as service or emotional support animals under the ACAA are accommodated free of charge, and are not allowed to block emergency exits or occupy seats designed for passengers.  (Last visited 4/19/16).  (Last visited 4/19/16).

Scott Brooksby will be featured as a speaker at the American Bar Association’s 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts in San Francisco, California

Scott Brooksby will be featured as a speaker at the American Bar Association’s 3rd Annual Western Regional CLE Program on Class Actions and Mass Torts in San Francisco, California.   The conference explores hot topics in class action and mass tort litigation.  Scott will join federal judges, plaintiffs’ and defense lawyers, academics, and experts to speak on these issues.

Scott’s panel will discuss the interesting substantive, procedural, and strategic considerations for airlines and other types of manufacturers seeking dismissal in forum non conveniens motions, and for passengers and other plaintiffs seeking to defeat FNC motions in multi-district litigation. Using examples from aviation-related MDLs, and specifically after the groundbreaking MDL involving Air France 447, the panel will discuss key aspects of establishing personal jurisdiction over foreign corporate defendants. The panel will discuss the complex issues associated with international treaties, choiceof-law, the meaning of an “unavailable forum” and challenging jurisdiction and venue considerations that arise when both U.S. and foreign individuals
are involved.

Scott Brooksby practices aviation and product liability defense.  He is an experienced trial lawyer who has defended businesses, manufacturers, and organizations in many personal injury and and commercial cases. He has defended and counseled product manufacturers and distributors in a variety of industries including aviation, drugs and medical devices, toys and recreational products, paints and solvents, power tools, heavy equipment and machinery, retail, food, consumer products, and automobiles. He is the former co-chair of a large West Coast law firm’s product liability practice group.

Scott has tried numerous personal injury and product liability cases in Oregon state and federal courts.

In cases that do not necessitate a trial, Scott is a skilled negotiator who has resolved hundreds of cases through arbitration and mediation. He has successfully argued many motions that resulted in the dismissal of claims, or outright dismissal of his client. He also has experience counseling product liability clients regarding the avoidance of litigation, handling product recalls, product modifications, and unwanted governmental intervention.

Scott has litigated everything from small defective product claims to catastrophic injury and wrongful death cases involving punitive damages.  He has experience with medical treatment issues that result from falls, burns and amputation injuries in manufacturing facilities.

As one of the few lawyers in Oregon with significant aviation experience, Scott has litigated helicopter and plane crash cases, as well as aviation component part product liability claims.  Scott was co-counsel on a team that defended a large aviation product manufacturer in a months-long trial.

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:

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:

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:

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.

Titanium Aluminide and Its Use in Aviation Manufacturing

Companies are starting to manufacture turbine blades from titanium aluminide. This makes the blades more lightweight, resulting in less energy output.  A titanium aluminide blade weighs about half as much as a traditional blade made of nickel superalloy.

Three principal compounds are formed by titanium aluminides: TiAl, TiAl2 and TiAl3. Dixon Chandley, Use of Gamma Titanium Aluminide for Automotive Engine Valves, 18 (1) Metallurgical Sci. & Tech. 8 (2000).   “Gamma titanium aluminide-based alloys (y-TiAl) have become an important contender for high-temperature structural applications in the aircraft industry to replace current nickel-based superalloys as the material of choice for low-pressure turbine blades.”  L. Patriarca, Fatigue Crack Growth of a Gamma Titanium Aluminide Alloy, 9th Youth Symposium on Experimental Solid Mechanics, 2010, 36.  y-TiAl compounds have the highest melting point and therefore are most “useful for engineering purposes.”  Chandley, 18 (1) Metallurgical Sci. & Tech. at 8.

Ti-Al was not really used in manufacturing and production until the 2000s.  One reason is that it was brittle and therefore “difficult to form and to process”.  Daniel Hautmann, Titanium Aluminide–A Class All By Itself, 1 MTU Aero Engines Rept. 27 (2013).  Through decades of research work, it was found that brittleness could be tackled “by adjusting the material composition, and manufacturing processes and the design were tailored to suit the material properties.”  Id. at 28.

Ti-Al is now revolutionizing the field of aviation and more and more companies are working to incorporate it into their blade manufacturing technology.  For instance, the Boeing 787 Dreamliner uses GE engines that include “titanium aluminide (Ti-Al) blades in the last two stages of the seven-stage low-pressure turbine.”  Stephen F. Clark, 787 Propulsion System, 3 Aero Quarterly 10 (2012).


Turbine Engine Hot Section Manufacturing: Complex Metallurgy and Dangerous Work Environments

Turbine engine hot section manufacturing is a complex industry that involves risk of serious injury and an adherence to safety rules and best practices.

There is a common maxim that two technologies liberated the modern world: the automatic washing machine and the jet engine.  When RAF Lieutenant Frank Whittle received an English patent on the basic design for the modern jet engine in 1930 (the first flight was not until 1941), he probably could not have imagined the changes that would occur, in materials, complexity, and performance capability.

Today’s commercial jet engines have as many as 25,000 parts.  They are up to eleven feet in diameter and twelve feet long.  The engines can weigh more than 10,000 pounds and produce 100,000 pounds of thrust.  Even the engine on a fully tested and approved design may take two years to assemble.  A super-jumbo jet can carry 500-800 passengers, depending on configuration, and have a take-off weight of 1.2 million pounds.

Section I will provide a basic overview of the production and metallurgical complexities associated with the manufacture of some hot section components.  Section II will address a unique aspect of jet hot section manufacturing.  Specifically, the complex and exacting standards required to avoid catastrophic in-flight aviation accidents also require the most disciplined adherence to best practices for safety to avoid catastrophic occupational injury, particularly burns, in high temperature work environments.  Section III will briefly discuss the catastrophic burn injuries that result from failure to follow exacting safety precautions.

Section I:  The Hot Section

At the front of the engine, a fan drives air into the engine’s first compartment, the compressor, a space approximately 20 times smaller than the first stage of the compressor.   As the air leaves the high-pressure compressor and enters the combustor, it mixes with fuel and is burned.  As the gas is combusted and expands, some gas passes through the exhaust and some is rerouted to the engine’s turbine (a set of fans that rotate compressor blades).  The turbine extracts energy from the ultra-hot gases to power the compressor shaft and generate power.

Because the turbine is subject to such incredible heat, labyrinthine airways in the turbine blades allow cool air to pass through them to cool the turbine.  With the cooling mechanism of the airstream, the turbine can function in gas streams where the temperature is higher than the melting point of the alloy from which the turbine is made.

Titanium, purified to aviation specifications in the 1950s, is used for the most critical components of the “hot section” such as the combustion chamber and turbine.  The hardness of titanium is difficult to work with, but it is resistant to extreme heat.  It is often alloyed with other metals such as nickel and aluminum for high strength/weight ratios.

Hot Section Component Manufacturing

The intake fan.  The fan must be strong so it does not fracture if large birds or debris are sucked in.  It is made of a titanium alloy.  Each fan blade consists of two skins produced by shaping molten titanium in a hot press.  Each blade skin is welded to a mate, with a hollow cavity in the center being filled with titanium honeycomb.

The compressor disc. This is a solid core, resembling a notched wheel, to which the compressor blades are attached.  It must be free of even minute imperfections, since these could cause creeping or develop into fractures under the tremendous stress of engine operation.  Historically machined, compressor discs are now manufactured through a process called powder metallurgy, which consists of pouring molten metal onto a rapidly rotating turntable that breaks the molten metal into millions of microscopic droplets that are flung back up almost immediately, due to the table’s spinning.  As they leave the turntable, the droplets’ temperature plummets by 2120 degrees Fahrenheit (1000 degrees Celsius) in half a second, causing them to solidify and form a very fine metal powder, which solidifies too quickly to absorb impurities.  The powder is packed into a forming case and vibrated in a vacuum to remove air.  The case is then sealed and heated, under 25,000 pounds of pressure per square, inch into a disc.

Compressor blades.  These blades are still formed by traditional methods of casting.  Alloy is poured into a ceramic mold, heated in a furnace, and cooled.  The mold is broken and blades are machined to final shape, often to exacting tolerances on the order of 7 microns.

Combustion chambers.  Combustion chambers blend air and fuel in small spaces for long periods of time at incredible temperatures.  Titanium is alloyed (to increase ductility) and then heated to liquid before being poured into several complex segment molds.  The segments are welded together after cooling and removal.

The turbine disc and blades.  The turbine disc is formed by the same powder metallurgy used to create the compressor disc.  However, turbine blades are subjected to even greater stress due to the intense heat of the combustor.  Copies of the blades are formed by pouring wax into metal molds.  Once set, the wax shape is removed and immersed in a ceramic slurry bath, forming a ceramic coating.  Each cluster of shapes is heated to harden the ceramic and melt the wax.  Molten metal is then poured into the hollow left by the melted wax.

The metal grains of the blades are then aligned parallel to the blade by directional solidifying, which is important due to the blade stresses.  If the grains are aligned correctly, the blade is much less likely to fracture.  The solidifying process takes place in computer-controlled ovens to precise specifications.  Parallel lines of tiny holes are formed to supplement internal cooling passageways, either by a small laser beam or by spark erosion, where sparks are carefully allowed to eat holes in the blade.

Turbine blades are subject to temperatures of around 2,500 degrees Fahrenheit (1,370 Celsius.  At such temperatures, creep, corrosion, and fatigue failures are all possible.  Thermal barrier coatings, such as aluminide coatings developed during the 1970s, facilitated cooling.  Ceramic coatings developed during the 1980s improved blade capability by about 200 degrees F. and nearly doubled blade life.

Modern turbine blades often use nickel-based superalloys that incorporate chromium, cobalt, and rhenium.  Some superalloys incorporate crystal technology.  Nimonic is another super low-creep superalloy used in turbine blades.  Titanium aluminide, a chemical compound with excellent mechanical properties at elevated temperatures, may replace Ni based superalloys in turbine blades.  GE uses titanium aluminide on low pressure turbine blades on the GEnx engine powering Boeing 787s.  The blades are cast by Precision Castparts Corp.

Exhaust system.  The inner duct and afterburners are molded from titanium, while the outer duct and nacelle are formed from Kevlar, with all components welded into a subassembly.

Section II.  Defects in Both Hot Section Components and Safety Procedures Can Result in Catastrophic Injuries

An imperfection in the hot section, which results, for example, in a blade fracture during flight, or excessive creep, may result in an uncontrolled engine failure, among other catastrophic inflight mishaps, putting lives at risk.  In an interesting corollary, unique to very few manufacturing settings, adherence to the safest manufacturing processes will minimize both product defects and worker injuries, primarily serious burns.

Few Things Drive Higher Verdicts, Workers Compensation Costs, or Settlements, Than Burns

In those industries where “serious large burns” can arbitrarily be defined as full-thickness burns over 20% or more of the total body surface area (TBSA), the location of the burns and the relative availability of certain types of grafts can be outcome determinative and correlate directly with litigation risk, settlements, and verdicts. Most problematic are 4th degree burns to the hands or face, which can never, ever, be fully repaired with current surgical technology or therapeutic treatments.

Skin Graft Classification

There are two common types of skin grafts.  A split-thickness graft (STSG), or mesh graft, includes the epidermis and part of the dermis.  A mesher makes apertures in the graft, allowing it to expand approximately 9 times its original size.

Alternatively, a full thickness skin graft, or sheet graft, which involves pitching and cutting away skin from the donor section, is more risky in terms of rejection.  Yet counter-intuitively, this method leaves a scar only on the donor section, heals more quickly, and is less painful than split-thickness grafting.  This type of grafting, sheet grafting, must be used for hands and faces/heads where graft contraction must be minimized, and it is therefore extremely difficult to achieve in large TBSA burns.


Although workers compensation laws will generally bar litigation by workers against their employers, in cases where the exclusive remedy provision of workers compensation does not apply, it is not uncommon in the United States to see burn verdicts or settlements in the millions or even tens of millions of dollars.  Mandatory PPE and best safety practices for dealing with ultra-high temperature work environments can minimize injuries, although the practical reality is that elimination of such injuries remains an aspirational goal.

Steelmaking In The 21st Century: An Ancient Art, A Complex Modern Science, A Danger At Every Stage

Metal briefcase

Product liability lawyers should be familiar with both the dangers and the science of steel manufacturing.  Steel is one of the most indispensable products in the modern world.  Its uses, forms, and composition are limitless.  Like any other product, steel in its final form and use is a “product” subject to the same consumer expectation test in Oregon that applies to household appliances.  However, unlike most other product manufacturing, steel production, which creates the base material for pipe, rails, aviation, and innumerable transportation, mining, oil and gas, and other products, is incredibly dangerous.  Although serious burns might be the most obvious risk, there are also crush, amputation, and a host of other potential injuries which justify the most careful training, exacting safety processes, and best PPE.  This is especially true given the danger posed by the typical 24-hour-a-day production schedules and the undisputed fact that nighttime workers are in more danger than day workers.

Steelmaking Is An Ancient Art

In the ancient world, steelmaking was considered an art, and as the centuries passed, the process became more and more complex.  Steel was known in antiquity and may have been produced by managing bloomeries, or iron-smelting facilities, in which the bloom contained carbon.  Blooms are steel formed into large blocks to which further tempering or chemical procedures can be applied.  The use of blooms persists into the steelmaking of today.

The earliest known example of steel production, thought to be about 4000 years old, is a piece of ironware excavated from an archaeological site in Anatolia (the Asian part of Turkey).  “Ironware piece unearthed from Turkey found to be oldest steel.”  The Hindu (Chennai, India).  The Haya people of East Africa invented a type of furnace that they used to make carbon steel at 3,276 degrees Fahrenheit nearly 2000 years ago.  Africa’s Ancient Steelmakers (,9171,912179,00.html?promoid=googlep).  Time Magazine September 25, 1978.

What Is Steel?

Steel is an alloy of iron and carbon.  Steelmaking is the process of producing steel from iron and ferrous scrap.  In steelmaking today, impurities such as silicon, phosphorus, and excess carbon are removed from the raw iron, and alloying elements such as manganese, nickel, chromium, and vanadium are added to produce different grades of steel.  Limiting dissolved gasses such as nitrogen and oxygen, and entrained impurities or “inclusions,” in the steel is also important to ensure the quality of the products cast from the liquid steel.  B. Deo and R. Boom, Fundamentals of Steelmaking Metallurgy, Prentice and Hall (1993).

Carbon is the primary alloying element, and its content in steel is between 0.002% and 2.1% by weight.  Additional elements are also present in steel, including manganese, phosphorous, sulfur, silicon, and traces of oxygen, nitrogen, and aluminum.  Carbon and other elements act as hardening agents, preventing dislocations in the iron atom crystal lattice from sliding past one another.

Varying the amount of alloying elements and the form of their presence in the steel (solute elements precipitated phase) controls qualities such as the hardness, ductility, and tensile strength of the resulting steel.  Steel with increased carbon content can be made harder and stronger than iron, but such steel is also less ductile than iron.  Ashby, Michael F. and Jones, David R.H.  Engineering Materials 2 (with corrections ed.) Oxford:  Pergamom Press.  ISBN 0-08-032532-7 (1992 [1986]).

Alloys with a higher than 2.1% carbon content are categorized as cast iron.  Because cast iron is not malleable even when hot, it can be worked only by casting, where it has a lower melting point.  Steel is also distinguishable from wrought iron, which may contain a small amount of carbon.

Even in the narrow range of concentrations that make up steel, mixtures of carbon and iron can form a number of different structures with very different properties.  One of the most important polymorphic forms of steel is martensite, a metastable phase that is significantly stronger than other steel phases.  When the steel is in an austenitic phase and then quenched rapidly, it forms into martensite, as the atoms “freeze” in place when the cell structure changes from FCC to BCC.  Depending on the carbon content, the martensitic phase takes different forms.  Below approximately 2% carbon, it takes a ferrite BCC crystal form, but at a higher carbon content, it takes a body-centered tetragonal (BCT) structure.  There is no thermal activation energy for the transformation from austenite to martensite.  Moreover, there is no compositional change to the atoms, which generally retain their same neighbors.  Smith, William F., Hashemi, Jared, Foundations of Materials Science and Engineering (4th ed 2006) McGraw Hill ISBN 0-07-295358-6.

Special Modern High Performance Alloys

There are a number of extremely complex super-alloys and other metals available today for high performance aviation and other uses, including Transformation Induced Plasticity (TRIP) steel and Twinning Induced Plasticity (TWIP) steel.  A complete discussion of these super-alloys merits a separate article, and one will be forthcoming shortly.

Introduction To The Modern Process

In the modern era, there are two major processes for making steel.  The first is basic oxygen steelmaking, which uses liquid pig iron from the blast furnace and scrap steel for the main feed materials.  Alternatively, iron ore is reduced or smelted with coke and limestone in the blast furnace, producing molten iron that is either cast into pic iron or carried to the next stage as molten iron.  In the second stage, impurities such as sulfur, phosphorus, and excess carbon are removed, and the alloying elements such as manganese, nickel, chromium, and vanadium are added to produce the steel required.  The vast majority of steel in the world is produced using the basic oxygen furnace.  In 2011, approximately 70% of the world’s steel was produced in this way.  R. Fruehan, The Making, Shaping and Treating of Steel (11th ed. AIST 1999).

The second major modern process is electric arc furnace (EAF) steelmaking, which either uses scrap steel or direct reduced iron (DRI) as the main feed material.  Oxygen steelmaking is fuelled predominantly by the exothermic nature of the reactions inside the vessel, whereas in EAF steelmaking, electrical energy is used to melt the solid scrap and/or DRI materials.

In recent times, EAF steelmaking technology has moved closer to Oxygen steelmaking as more chemical energy is introduced into the process.  E.T. Turkdogan, Fundamentals of Steelmaking, IOM (1996).  EAF steelmaking is predominantly used for producing steel from scrap and involves melting scrap, and combining it with iron ore.

Alternatively, the oxygen method can involve melting DRI using electric arcs (either AC or DC).  It is common to start the melt with a “hot heel” (molten steel from a previous heat) and use gas burners to assist with the meltdown of the pile of scrap.  EAF furnaces typically have capacities of around 100 tons every 40 to 50 minutes.

Regardless of the process used, through casting, hot rolling and cold rolling, the steel mill then turns the molten steel into blooms, ingots, slabs, and sheet.

At the typical steel mill, the raw materials are batched into a blast furnace where the iron compounds in the ore give up excess oxygen and become liquid iron.  At intervals of a few hours, the accumulated liquid iron is tapped from the blast furnace and either cast into pig iron or directed to other vessels for further steelmaking operations.  During the casting process, various methods are used, such as the addition of aluminum so that impurities in the steel float to the surface where they can be cut off the finished bloom.


The steelmaking process involves exposure to hundreds of tons of molten metals, often poured manually into ceramic, wax, or other casting forms or hot rolled into shapes.  The potential for catastrophic injury or death is everywhere in the steelmaking process, and it is essential that workers be trained and supervised to avoid lapses in safety that could result in such unfortunate occurrences.  Although automation continuously decreases the exposure of workers to significant injury or death as a result of virtually every phase of the process, the utmost care should still be exercised by all who enter a steel mill.

Component Part Manufacturer Liability in Oregon

Oregon Did Not Adopt Caveat (3) In Its Adoption of The Restatement (Second) of Torts, § 402A (1965)

Component part liability is important in products liability cases and especially in aviation cases, where the aircraft may have a long air-frame life but require service or replacements of hundreds of parts over its years of service.  Although Oregon adopted the Restatement (Second) of Torts, § 402A contains a caveat (Caveat 3 (1965)) regarding whether strict liability should be extended to component part manufacturers.  The Oregon Legislature, however, did not adopt this caveat as an interpretive guide for the courts.  Therefore, both pre-codification and post-codification Oregon Supreme Court rulings hold that strict liability can extend to component part manufacturers for the sale of defective components.  See State ex rel Hydraulic Servocontrols v. Dale, 294 Or 381 (1982); Smith v. J.C. Penney Co., 269 Or 643 (1974) (fabric manufacturer held liable because of flammable character of fabric, even though fabric was sold to the coat manufacturer before reaching consumer).  If the component part is dangerously defective and it causes injury, the component part manufacturer (or seller or distributor) is subject to liability.

Oregon law also follows the Restatement (Third) of Torts: Products Liability, which takes the position that if the component part is defective and causes injury, the component part manufacturer (or seller or distributor) is subject to liability.  Additionally, if the component part manufacturer “substantially participates in the integration of the component into the design of the product,” the component manufacturer is subject to liability. Restatement (Third) Of Torts: Products Liability § 5 (1998).

Oregon Law Involving Alleged Misapplication of a Raw Material:  Misapplication of a Raw Material Does Not Give Rise To Liability As To the Supplier

The manufacturer of a component part, however, is not subject to strict liability if the component was misapplied rather than defectively designed.  In Hoyt v. Vitek, Inc., 134 Or App 271 (1995), after experiencing problems with her temporomandibular joint (TMJ), the joint that connects the jaw bone to the skull, the plaintiff, Hoyt, had a prosthetic device implanted in her jaw.  The device gradually fragmented and released particles of Teflon, which caused a serious adverse reaction.  Du Pont Company manufactured Teflon and sold it to Vitek, Inc., which used the Teflon as a component part in its TMJ device.

Vitek designed, manufactured and marketed the device.  In 1977 DuPont informed Vitek that it manufactured Teflon for industrial purposes only and had sought no FDA rulings on the safety or effectiveness of surgical uses, and that Vitek would have to rely on its own medical and legal judgment.  Du Pont was aware of studies that warned of abrasion and fragmentation with medical Teflon implants and passed along this information to Vitek.  In 1983, Vitek received permission from the FDA to market the device pending “specific performance standards.”  Hoyt, supra, 134 Or App at 277.

Hoyt sued Du Pont, contending that Teflon was unreasonably dangerous because it was defectively designed and because of Du Pont’s failure to warn the medical community.  The court of appeals found that the component part was not defective.  The court of appeals also relied on the “raw material supplier” doctrine in deciding not to apply strict liability.  When a multiuse raw material is not unreasonably dangerous in itself, but becomes unreasonably dangerous when incorporated into certain uses, the supplier cannot be sued based on strict liability.  Hoyt, supra, 134 Or App at 284-286.  See Crossfield v. Quality Control Equip. Co., 1 F3d 701 (8th Cir 1993); Childress v. Gresen Mfg. Co., 888 F2d 45 (6th Cir 1989).

Cases in Which Component Parts Are the Allegedly Defective Product

Plaintiffs did allege that defective replacement parts were supplied after the first sale of a helicopter in Evans v. Bell Helicopter Textron, 1998 WL 1297138 (D Or 1998), but the service bulletins proffered by plaintiffs were insufficient to establish that the defective component parts were installed in the engine after the first sale.  The helicopter was manufactured in 1979, and crashed seventeen years later.  Defendants’ motion for summary judgment was granted on the basis of ORS 30.905 because plaintiffs could not support their allegation that an affirmative misrepresentation occurred after the first sale of the helicopter by defendants.

In Allstate Indem. Co. v. Go Appliances LLC, 2006 WL 2045860 (D Or 2006), plaintiff alleged that a defective compressor installed on a used refrigerator caused a fire in its subrogor’s house.  The opinion does not state when the refrigerator was originally first sold and does not discuss product liability time limitations.  However, the court held that plaintiff could assert a products liability action against the defendant, who sold the used appliance and installed the allegedly defective new compressor.

The statute of ultimate repose in both strict product liability cases and negligence cases is beyond the scope of this article.  However, one of the controlling Oregon cases relevant to a replacement component part is Erickson Air-Crane Co. v. United Technologies Corp., 303 Or 281 (1987), mod. on recons. 303 Or 452.  Although Erickson discussed the application of the products liability statute of ultimate repose in the context of post-sale negligent misrepresentation, the case is relevant to a discussion regarding application of the statute of ultimate repose to a post- sale installation of a defective component part.

In Erickson, plaintiff purchased a helicopter in 1971.  Defendant allegedly made misrepresentations regarding the useful safe life of a compressor disc in 1977.  After the helicopter crashed in 1981 due to exhaustion of the compressor disc, plaintiff filed suit in 1983.  The plaintiff’s complaint alleged that defendant was negligent in providing erroneous information, failing to warn plaintiff as to the erroneous information, and failing to warn that the helicopter was dangerous after expiration of the true safe life of the compressor disc.  Erickson, 303 Or at 284-85.

The Oregon Court of Appeals found that plaintiff’s action against the manufacturer was a product liability action, and that because the action was commenced more than eight years after the first purchase of the helicopter, the statute of ultimate repose barred the action.  Id. at 285-86.  The Supreme Court reversed, holding that:  “ORS 30.905 applies only to acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption.’  Acts or omissions occurring after that date are governed by the statute of ultimate repose contained in ORS 12.115.”[1]  Id. at 286.  Because the defendant relayed the false information about the useful safe life of the compressor after the helicopter was first purchased, ORS 30.905 did not apply.  Id. at 289. (“The difference between the present case and the type of case that the legislature meant to cover under ORS 30.905(1) is that, in this negligence case, the reasonableness of certain of defendant’s actions after plaintiff’s purchase are in question while, in a product liability case governed by ORS 30.905, it is the condition of the article at the date of purchase that is in question.”) (emphasis in original).

The Erickson holding, when viewed in the context of installations of new components, supports the argument that such alterations cannot “restart” the statute of ultimate repose on the original product.  Erickson holds that ORS 30.905 only applies to “acts, omissions or conditions existing or occurring before or at the ‘date on which the product was first purchased for use or consumption,’” and a post-sale negligent misrepresentation leading to the installation of a new product necessarily occurs after the date the product was first purchased.  A manufacturer can argue that under Erickson, the statute of ultimate repose should run on the original product from the date it entered the stream of commerce, regardless of whether component parts were installed post sale.



[1] ORS 12.115 is the generic statute of ultimate repose for negligence actions, and provides that “any action for negligent injury to person or property of another” must be commenced within “10 years from the date of the act or omission complained of.”

Oregon Law Requires Places of Public Assembly (Including Large Brick and Mortar Retailers) To Have At Least One Automated External Defibrilator

Premises owners should be aware that at least one automated external defibrillator (“AED”) may be required in their buildings.  On January 1, 2010, Senate Bill (S.B.) 556, codified as ORS 431.690, took effect, requiring certain building owners to place at least one automated external defibrillator (“AED”) on their “premises.”  The requirement applies to “places of public assembly” which are defined as “facilities” that have at least “50,000 square feet” of “floor space” and where: (1) the “public congregates for purposes such as deliberation, shopping, entertainment, amusement or awaiting transportation;” or “business activities are conducted;” and (2) at least 25 people “congregate” there on a “normal business day.”  S.B. 556 (1)(a)-(b).

In 2011, S.B. 1033 amended ORS 431.690 to require the placement of at least one AED in public and private schools and health clubs as well.

In other words, businesses and facilities with over 50,000 square feet of floor space must have a defibrillator on their premises if at least 25 people “congregate” there on a normal day.  A copy of the statute requiring AEDs is found at

It is safe to assume that most product manufacturing facilities comprise 50,000 or more square feet.  However, despite the fact that this law has been in effect for more than three years, many Oregon businesses affected by the law are not compliant.


The AED law does not provide a definition for the word “congregate,” nor does it specify whether 25 people must be present at one time or can come and go over the course of an entire business day.  When Oregon courts interpret ambiguous language, they focus primarily on the text and context of the statute and secondarily on legislative history.  State v. Gaines, 346 Or. 160, 172, 206 P.3d 1042 (2009).  When analyzing the text of a statute, it is useful to consider the dictionary definition of any ambiguous words.  The dictionary definition of “congregate” is “to come together; to assemble; to meet,” or “to collect into a group, crowd, or assembly.”   Black’s Law Dictionary 301 (6th ed., West 1990), Merriam Webster’s Collegiate Dictionary 243 (10th ed., Merriam-Webster, Inc. 1997)

Given the dictionary definitions, one could reasonably argue that the new law applies only to businesses that have at least 25 people present at some point during the day (i.e. “assembled” or “together” at one time).  However, the legislative history of the bill may suggest a different interpretation.  S.B. 556 originally had no 25-person requirement, and therefore would have applied to all businesses with floor space exceeding 50,000 square feet.  This specification requiring at least 25 people to congregate was added by way of an amendment suggested during a work session of the Health Care and Veterans’ Affairs Committee (held on April 4, 2009).  At that meeting, Senator Wayne Morse expressed concern that the bill would require industrial warehouses with very few employees to install AEDs.  One of the bill’s sponsors, Senator Jeff Kruse, agreed and said that they intended the bill to apply to “big department stores,” shopping centers, “office buildings” and the like, but not sparsely populated warehouses.  Relying on this legislative history, it is more likely that the 25 person requirement was not intended to exempt stores that have more than 25 visitors during a day even if they are not all present at the same time.

For a business such as a large brick and mortar retailer, there are two threshold questions that determine whether ORS 431.690 (S.B. 556 applies).  First, does the store or other business have over 50,000 square feet of floor space?  And, second, do at least 25 people congregate at the business on a typical business day?  If the answer to both questions is yes, the business is subject to the AED requirement.  If a minimum of 25 people did not congregate during a typical business day, then there is a good argument that the business would be exempt from the law.

Note that the statute places no limitations on the reason the 25 people have congregated in one place.  The statute provides a nonexclusive list of some of the reasons people have for gathering in these places – “deliberation, shopping, entertainment, amusement or awaiting transportation.”  In the context of a “big box” retailer, for example, the 25 people would likely consist of any person present in the store including, but not limited to, all employees, shoppers, repair or maintenance contractors, or anyone else visiting the store.

Although this insight into the legislative history may be interesting, businesses should not get lost in debating the letter of the statute or meaning of what “congregate” signifies.  If the business believes it might in any way meet the parameters of the statutory requirements, they should simply install an AED.

The law does not specify where the AED should be located or contain any provisions regarding access.  The law merely specifies that the AED shall be “on the premises.”  Based on the absence of any specification, it does not appear that the AED necessarily need be available to any member of the public in the establishment at the time the AED is needed.

Part of S.B. 556 (now codified at ORS 30.802) Provides Protection From Liability For Those Who Comply With The AED Requirement

A provision of S.B. 556, now codified at ORS 30.802, provides a fairly broad immunity provision for those locations which comply with the statutory requirement and maintain an AED on premises, so long as the business is in compliance with the particulars of the immunity provision such as making sure there are employees trained in the use of the AED.  A copy of the statute providing liability protection is found at

The cost of AEDs has dropped precipitously with increased competition and more efficient mass production.  The benefits of compliance with the Oregon statute, including immunity from suit, vastly outweigh the risks of non-compliance.  Moreover, there is conclusive evidence that AEDs save lives.  If you have questions, please contact our office.

Olson Brooksby often represents national retailers with large brick and mortar locations.

“Secondary Processes” Don’t Translate to Secondary Risks

Steel manufacturers know that the global demand for steel is almost always increasing, and customers require greater engineering performance.  Customers also require variations in the performance characteristics of specialized, costly alloys, which warrant investment in safe, efficient QC testing equipment.  Specialized components, such as those used in aviation, require precision machining.  Aircraft turbine engine compressor blades, for example, may require precision casting to tolerances of seven microns or less.

The urgency to increase production and focus on key production values can sometimes lead to risk of serious workplace injury, often due to under-recognized dangers in secondary processes.  QC testing operations – where injuries often involve equipment that lacks necessary retrofitting with safety devices, or compliance with published ANSI, ASTM, ISO, or other industry standards – is a case in point.

Additionally, secondary processes like QC testing are what might be called “first assignment” areas for new, contract, or temporary workers who all too often are under-trained and unaware of the potential dangers of metal production.

The “class” of worker is noteworthy because the differing ways in which injury compensation is handled have financial implications for the employer.  Basically, employees are limited to the exclusive remedy provision of worker’s compensation law, which does not provide for non-economic damages.  Other classes of workers may be able to sue for non-economic damages, resulting in verdicts or settlements that can cripple a company.

Our firm was involved in a real-world example as counsel for a large steel mill that burns roughly 30,000 quality-control test samples a year.  In that case, eight-foot-long, 500-pound tail samples were cut from sheet steel in the main roller room and were channeled onto a customized metal roller conveyor system that diverted samples to the sample burning room.  A series of gates restrained and managed each sample’s movement along the conveyor until a final gate clamped down on the tail sample so a laser could cut the sample into smaller segments for QC testing.

In this case, however, with the final gate on the conveyor shut, the penultimate gate opened, freeing an uncut tail sample to continue down the conveyor and collide with the slab in the clutch of the final gate.  The uncut slab careened into the air, striking an employee in the head.  The injured employee was hired through a service, and it was his first day on the job.

It was a tragedy in personal terms, and the steel company lived up to its responsibilities to the injured worker.  Additionally, by following a number of prudent practices, both before and after the accident, the company was protected from legal action that might have created a serious financial threat to the business.  Here are some operations and legal steps every metal manufacturer should consider to reduce personal injury on the job and damaging financial liability in secondary process areas:

  • Immediately examine older equipment and put requisite safeguards into place.  It is natural to be focused on mainline production safety and operations.  However, a safety audit may reveal necessary retrofitting in areas such as QC sampling.  In this case, a post-accident engineering study resulted in the installation of horizontal spacers spanning the conveyor track to prevent tail samples from jumping the conveyor.  The spacers were not required by written standard, but they provided extra safety.
  • Ensure compliance with published industry standards.  The litany of ASTM, ANSI, OSHA, ISO, and other standards for production of metal and component parts and machine safety is beyond the scope of this article.  Consider retaining an occupational safety engineer to conduct an audit that closely assesses older QC test equipment.
  • Ensure that contracts with any temporary worker service providers expressly state that the provider will provide worker’s compensation coverage.  For your employees, worker’s compensation is the “sole remedy” for claims in the event of workplace injury.   However, temporary, contract and other classes of workers – again, often placed in secondary process positions – may be able to sue under Employer Liability Law (“ELL”) that can include non-economic damages such as pain and suffering.

To maintain consistent standards of coverage and liability across a mixed workforce, your worker-service contracts need to delineate that your contractor’s worker’s compensation coverage is the sole remedy for temporary workers.  Although plaintiffs may challenge contractual provisions in court, manufacturers should put in place contractual indemnity provisions that result in consistent protection across all worker classes and forms of claims.

  • Ensure that contracts contain an indemnity provision providing that the service provider will fully indemnify the metal manufacturer for injuries of any kind to the temporary worker.  Clauses that provide an exception for the “sole negligence of the manufacturer” can often lead to expensive litigation and leave the door open for exposure.  Protect your company by resisting the inclusion of such language in your service contracts.

To close, as important as it is for metal manufacturers to meet growing demand and concentrate on the principal staffing, processes, and equipment of main-line production, experience indicates that the dynamics and risks associated with secondary production processes also deserve increased attention.

Managing burn risks in the manufuacturing industry


Lawyers for the manufacturing industry should pay particular attention to assisting their clients with managing burn risks.  One of the under-recognized aspects of workplace injury risk has to do with the relationship between the level of technology and the potential for risk.  The following is from Scott Brooksby’s article published in a manufacturing trade online magazine,, which delivers to a global community the most up-to-date news, trends and opinions shaping the manufacturing landscape–

The Manufacturing Industry Should Assess Its Technology Ladders When Addressing Burn Risk

There are few more sophisticated and complex high-heat metallurgy manufacturing industry processes — and few with less tolerance for error — than the processes involved in manufacturing components of the hot-section of an aviation gas turbine engine. This precision minimizes the risk of catastrophic aviation disasters such as uncontrolled engine failure.

Involving super-heated, liquefied metals and extremely hot smelters, furnaces, crucibles or molds, it might be assumed that hot-section manufacturing constitutes a high-risk burn environment.  Actually, the danger of serious burns in any manufacturing environment often are misunderstood or underappreciated — as are the staggering human and economic costs. With a single bad burn, a worker can be scarred for life, and manufacturers or insurers may be exposed to tens of millions of dollars in worker’s compensation payments, settlements or verdicts. And no class of burns creates greater tragedy or higher financial costs than 4thdegree, full-thickness burns to the hands and face associated with super-hot metal production.

Just to illustrate, burn-center treatment of a 4th degree burn covering 20 percent of a victim’s body — a “serious large burn” — easily can exceed $750,000 for the first few months of intensive treatment at a burn center. Reconstructive surgery can continue for decades, and pain and the humiliation of disfigurement can be a life-long burden for the victim.

Precision not the only benefit of sophisticated automation

But burns in aviation hot-section parts production are relatively rare for three basic reasons. First, and principally, automated technology that delivers micron-level tolerances minimizes human error — systems that utilize computerized ovens and robots so complex that molten metals are measured to the microgram are unlikely locations for human error that leads to a burn injury.

Second, largely due to the complexity of the process and technology, the hot-section manufacturing workforce frequently is uncommonly long-tenured, highly skilled and well-educated. Last, workers are subject to disciplined safety training, and benefit from high-tech personal protective equipment — principally to reduce the risk of burns. Phenomenal technology, great training and a superior workforce all combine to mitigate the hazards of super-heated metals production.

With turbine fan blade manufacturing as a case in point, let’s review the correlation between technology sophistication, training and burn risk.

Moving down the technology ladder moves you up the burn-risk ladder

At the height of technology and its attendant safety halo are compressor, turbine disc and turbine blade manufacturing stages, with computer-controlled processes delivering incredible product quality while keeping workers safe from burns.

Highly trained technical workers oversee the automated process of powder metallurgy, in which titanium is heated to its melting point of 3,000°F and spun onto a rapidly rotating turntable, transforming the molten metal into microscopic droplets that quickly cool and form a fine metal powder. In enclosed ovens, the powder is reheated to more than 1,000°F, and pressed at 25,000 psi into a disc. All of this takes place in a sealed environment.

Turbine discs and blades, also formed through powder metallurgy, are subject to even greater stresses because of the intense heat of the nearby engine combustors.

Here we begin stepping down the technology ladder and up the risk ladder, as molten metal often is hand-poured into molds. First, copies of the blades are formed by pouring wax into metal molds. Once set, the wax shape is removed and immersed in a super-heated ceramic slurry bath, forming a ceramic coating. Each cluster of shapes is heated to harden the ceramic and melt the wax, and molten metal is poured into the hollow left by the melted wax.

Depending on the material being formed, turbine blades are subject to temperatures of from 1,000 to 2,500°F, so they are coated in ceramic thermal barrier coatings. The ceramic must be melted, and the blades dipped by workers into the molten ceramic, again at temperatures far exceeding 1,000°F.

While major portions of the fan blade stages take place in compartments, production of parts such as combustion chambers and compressor blades revert back to traditional casting methods, with workers directly exposed to liquefied titanium and metal alloys being poured into molds, which often are manually handled.

Burn risk skyrockets in secondary processes

It’s axiomatic to say that burn risk escalates as a production line transitions from fully automated to a blend of automated and manual processes, to strictly manual processes. Less well-recognized is the reality that for virtually all metals manufacturers, the least automated, dirtiest and most dangerous aspects of production are secondary processes — such as mold cleaning in aviation engine hot-section manufacturing. Unfortunately, the combination of “first assignment” areas for new, contract or temporary workers and lack of automation can lead to tragic result.

In hot-section cleaning departments, parts are dipped in large, open tanks of high-temperature caustic chemicals such as sodium hydroxide and potassium hydroxide to remove most of the casting shell.  The chemicals themselves pose a potential danger, and the threat of burns escalates due to combination of heat and the mechanical nature of the work — which industry to date hasn’t yet found a way to automate.

Further, in this setting, workers periodically climb into empty tanks to undertake a potentially perilous task known as “tank digging.” It’s been documented that in some cases, workers with less than 90 days on the job have been assigned a supervisory role in this processes.

A caution regarding temporary workers where burns may occur

Although as noted, aviation component manufacturing generally employs a highly skilled workforce, but even here, the intersection of low technology and temporary or less skilled workers is a dangerous one. First, new or inexperienced workers frequently aren’t fully aware of risks and dangers involved in a job, and secondly, because of legal and financial ramifications in the event of a burn injury to a contract worker.

This is especially critical since, in most states, worker’s compensation is the worker’s sole remedy against the employer. Worker’s compensation does not typically provide for non-economic damages (pain and suffering), which dramatically spike the value of litigated settlements or verdicts in burn cases. However, other classes of workers — notably temporary and other contract workers — may be able to sue for non-economic damages resulting in verdicts or settlements that can cripple a company.

Therefore, burned workers will look for employer targets who do not ensure protections typically afforded through worker’s compensation or indemnity across all classes of workers.

Decrease risk to the business as well as to workers

In addition to investing deeply in training and the safest manufacturing equipment, every manufacturer first needs to be aware of legal and financial ramifications in the event of a burn injury to a contract worker. Employers should exercise caution in the placement of temporary workers, and closely review contracts with temporary worker service providers to ensure that iron-clad provisions are in place to contractually obligate service providers to provide worker’s compensation for the temporary employee. Also, manufacturers also should insist on indemnity provisions that protect against any claims brought by the temporary worker for injury.

In many areas, the aviation hot section component manufacturing industry represents a pinnacle of safety training and manufacturing technology.  But a lesson can be learned in recognizing the increased threat of burn risk at stages where the technology footprint is light, and the workers are less trained and less invested.