Category Archives: Product Liability

Aviation, Burn injuries, Catastrophic Injury, Damages, Heavy Equipment Manufacturing, Heavy Machinery, Helicopters, Litigation, Manufacturing, Personal Injury, Product Liability, Steel, Trials, Workplace Injuries

Variables that can affect burn injury cases

Most experienced defense lawyers know that the variables in burn injury cases prevent anything resembling a guarantee of a good result.  The following variables can affect the outcome of a case, including the potential financial exposure that a defendant or its insurer or worker’s compensation carrier may face:

– the different types of skin grafts and skin graft surgical procedures commonly involved in burn cases;

– whether, in high total body surface area (tbsa) burns, complete excision and grafting can be completed in a single principal procedure;

– the treatment technique, surgical technique and treatment philosophy of the physician; and

– the relative size of the burn center, as larger centers tend to be able to perform certain procedures–not because of greater skill, but because of the size and number of  surgical teams necessary.

Skin Graft Classification and Skin Graft Surgical Procedures

In burn injury cases, surgical removal (excision or debridement) of the damaged skin is followed by grafting.  The grafting is designed to reduce the course of hospital treatment and improve function and cosmetic appearance.  There are typically two types of skin grafts–mesh grafts and sheet grafts.  A less-common, third type of graft is a composite graft.

Mesh Grafts

Mesh grafting is known as partial-thickness grafting, or split-thickness grafting.  With mesh grafting, a thin layer of skin is removed from a healthy part of the body, known as the donor site.  It is processed through a mesher, which makes apertures into the graft. The graft then becomes mesh-like, allowing it to expand approximately nine times its original size.  Such grafts are used to cover large areas and the rate of auto-rejection is lower.  Harvesting of these grafts from the same site can occur again after as little as six weeks.  The surrounding skin requires dressings and the donor site heals by reepithelialization.

Using a dermatome, the surgeon usually produces a split-thickness graft which is carefully spread on the bare area to be covered.   It is held in place by a few small stiches or surgical staples.   The graft is initially nourished by a process called plasmatic imbibition in which the graft drinks plasma.  New blood vessels begin growing from the recipient area and into the transplanted skin within 36 hours in what is called capillary inosculation.  To prevent accumulation of fluid, the graft is frequently meshed by making lengthwise rows of short interrupted cuts, each a few millimeters long, with each row offset to prevent tearing.  This allows the graft to stretch and more closely approximate the contours of the affected area.

Sheet Grafts

In the alternative, a sheet graft, which is a full-thickness graft, involves pitching and cutting away skin from the donor section.  Sheet grafts consist of the epidermis and entire thickness of the dermis.  Sheet grafts must be used for the face, head and hands because contraction must be minimized.  If sheet grafting is necessary but the donor sites are insufficient, the outcome is likely to be less satisfactory, and the financial exposure in such cases will be higher.

With sheet grafting, the donor site is either sutured closed directly or covered by a split-thickness graft.  Sheet grafts are more risky in terms of rejection, yet counter-intuitively leave a scar only on the donor section.  Sheet grafts also heal more quickly and are less painful than partial-thickness grafting.

Sheet grafting is usually difficult in severe aviation or manufacturing burns because those involve high-percentage tbsa burns and donor sites are therefore limited.

Composite Grafts

The third type of graft, a composite graft, is a small graft containing skin and underlying cartilage or other tissue.  Donor sites would include the ears and other cartilage to reconstruct, e.g., nasal rim burns.

In High TBSA Burns, When Immediate, Complete Excision and Grafting is Completed in a Single Procedure, Damages Amounts May Be Lower.

In cases involving clearly severe, high tbsa burns, whether full or partial thickness, immediate, complete excision and grafting is usually indicated.  If immediate excision and grafting is complete–that is, done in a single procedure–a much larger surface area surgery can be completed with less blood loss.  This minimizes transfusion needs and dangers and also speeds physiological restoration.

Furthermore, an immediate, complete excision and grafting procedure can often allow use of good skin for grafting that would otherwise need to be excised.  If the procedure is not done immediately, less skin may be available for grafting.  In other words, skin that otherwise may have been healthy and usable when the plaintiff was first admitted to the hospital may die if the procedure is not done immediately, particularly if that skin is close to the burn site.

Immediate, complete excision and grafting also cuts down on the number of procedures and allows important vascular redevelopment to begin occurring sooner and supplying the graft locations with blood flow, which is essential to healing.

 The Treatment Technique, Surgical Technique and Treatment Philosophy of the Physician Can Be Outcome-Determinative

The simple fact is that some surgeons are more skilled than others, so the outcome may be better or worse depending on the skill of the physician.

There are also some advances in burn surgery that particular physicians are able to employ.  For example, in the most serious burn cases, grafts may be taken from other animals.  Such grafts are known as heterografts and, by design, they serve as temporary dressings that the body will unquestionably reject within days to a few weeks.  They are used in severe cases to reduce bacterial concentration of an open wound and reduce fluid loss.

Additionally, some surgeons are able to use cell cultured epithelial autograft (CEA) procedures, which involve removal of skin cells from a patient and the growth of new skin cell sheets in a lab.  Although the new sheets will not be rejected, they are typically only a few cells thick and do not stand up to trauma.  As a result, many such grafts do not take and the procedure must be repeated or an alternate procedure employed.

Furthermore, some physicians prefer to do more sheet grafting versus mesh grafting.  The physicians who prefer mesh grafting like it because they can cover much larger areas in a shorter period of time.  Conversely however, mesh grafting requires more revision surgeries, more of a risk that the grafts don’t take, and more contraction, which is disfiguring and requires further surgery.

Different groups of surgeons have their own philosophies and cultural preferences.  In Portland, Oregon, for example, there is one group of approximately five, highly-skilled burn surgeons who staff the Oregon Burn Center at Emanuel Hospital.  Due to the relatively small size of the burn center, they tend to wait four to seven days before conducting major graft procedures so that they can have a better assessment of the full extent of the injury.

The Relative Size of the Burn Center Can Be Outcome-Determinative

Larger burn centers, such as the ones at UC Davis or Harborview in Seattle, do not necessarily provide better treatment, but they are typically capable of complete excision and grafting at admission when there is a high percentage of the total body that sustains full-thickness burns or a combination of full-thickness and lesser degree burns.  This is a function of burn center size, not the skill of the physicians.  A full excision and grafting procedure is lengthy and generally requires two full surgical teams and at least two attending physicians and two assistant surgeons.  This type of procedure is generally not possible at relatively smaller burn centers such as the Oregon Burn Center.

Using Variables in Burn Cases to Assess Case Value and Adequately Prepare

The variables discussed above vary from case to case.  It is important to assess each one when valuing a burn injury case in order to determine the defendant’s likely exposure and prepare adequately for productive settlement discussions and, if absolutely necessary, trial.

 

Aviation, Burn injuries, Catastrophic Injury, Damages, Defective Products, Heavy Equipment Manufacturing, Heavy Machinery, Helicopters, Litigation, Manufacturing, Personal Injury, Product Liability, Steel, Trials, Uncategorized, Workplace Injuries

An Introduction to Burn Injury Significance and Burn Centers

Burns Are Significant Injuries and Can Lead to Some of the Highest Jury Verdicts

Olson Brooksby appreciates the potential high-exposure value of burn injury cases.  Scott Brooksby has significant experience in serious, total body surface area (tbsa) burn injury and wrongful death cases.  Our lawyers understand the delicate nature of large burn injury cases and work to minimize exposure to our clients.

Defendants potentially subject to burn injuries should employ best safety practices and make every attempt to avoid such injuries.  Burns are one of the most serious injuries in personal injury cases.  They may be the result of chemical fire or exposure, explosions, paints, solvents, or conventional fire.  Sometimes burns are the result of contact with hot equipment or other product liability related events.  The defense of serious burn injuries, including those related to aviation, product liability and heavy manufacturing is a large part of the defense practice of Olson Brooksby.  A bad burn case in an aviation or heavy manufacturing accident, or as the result of a product liability defect can easily present high financial exposure to manufacturers and/or insurers.  Settlement exposure can climb into the millions or tens of millions, with verdicts at least as high.

Even when there appears to be a strong defense, defendants should not underestimate the overwhelming sympathy a jury will feel when it sees a burn victim, particularly with serious facial burns or burns to the extremities.  A good plaintiff’s lawyer will ask the jury to consider things like the profoundly disfiguring effects of a bad facial burn and the pain that everyday exposure to sunshine will cause its victim for life, or the lifelong gawking stares it will draw.

Similarly tragic are severe burns to the hands, which cannot be restored to even near full function or pre-burn aesthetics and result in pain every time the victim is touched.  When liability is clear, burn cases should be settled because, unlike other personal injury cases, deformities caused by burns can incense juries to the point where they cannot put their emotions aside.  The result can be verdicts in the millions or tens of millions, including punitive damages (particularly if children are involved or there is perceived recklessness).  Although the amount of burn verdicts used to depend on the region of the country where the case originated, such verdicts are now generally high in every jurisdiction.

If the burn injury case must be tried, it must be done with great sympathy for the victim  and careful attention to the medical aspects of the case, including future treatment, which may last decades and cost into the six or seven figures.

When trying a burn injury case, it is important to know where the injury occurred.  If a plaintiff has to be air lifted to a burn center, that can radically change the extent of the injury.  Similarly, it is important to know the details of the burn center where the plaintiff was treated because that can also change the extent of the injury and thus affect the jury verdict amount.

The Location of the Accident Can Change the Extent of the Injury and the Jury Verdict

In those industries where serious conventional burns are common, such as aviation disasters or steel or metal manufacturing, “serious” can arbitrarily be defined as full-thickness burns over 20% or more of the tbsa.  The location of a burn center and the length of time to transport the victim to the burn center can be outcome-determinative.  This is also particularly true where babies and children or those over sixty-five are the victims, or where there are serious burns to the face, head, extremities, or internal organs.

Manufacturers and insurers obviously do not choose where burn centers are located.  After an accident, first responders will obviously make needed decisions about transport.  Most heavy manufacturing, including that of aviation hot section components, is done near large metropolitan areas that typically have at least one burn center.  Perhaps some of the greatest danger lies in cases in remote areas where individuals are subject to burns from allegedly defective products.  For example, a person camping in a remote area of the Western United States who is badly burned by kerosene at a remote campsite may not be able to reach a burn center for hours.  There may be no cellular phone service and a helicopter ambulance may have to be dispatched from hundreds of miles away.

Depending on the severity and tbsa burned, the size and related capabilities of the burn center will have a direct impact on the plaintiff’s recovery, and consequently, the ultimate exposure to the manufacturer and/or insurer in any settlement or verdict.

All Burn Centers are Not the Same–They May Have Varying Treatment Philosophies, Training and Capabilities

The size of the burn center can also be outcome-determinative because smaller centers, such as the Oregon Burn Center at Emanuel Hospital, are generally not large enough to perform a full excision and grafting in high tbsa burn cases.  A full excision and grafting is where they do all of the procedures at once instead of one at a time.  Some burn physicians believe that, depending on the case, better outcomes are achieved through full excision and grafting in high tbsa burn cases.

There are approximately 45 regional burn centers in the United States.  Verification of burn centers is a joint program administered in the form of a rigorous review of the applicant centers by the American Burn Association (ABA) and the American College of Surgeons (ACS).  Many states do not have a regional burn center and most states have only one or two.  California has the most, with seven.  Most burn centers are run by a single group or an extremely limited number of groups of burn surgeons who practice at the facility.

Unlike hospitals, burn centers do not typically extend general privileges to physicians.  Most burn surgeons have been trained as general surgeons, and then have gone on to receive additional specialized training in burns.   Along the population corridor running down I-5 between Seattle and Davis, California there are three verified regional burn centers, one each in Seattle (Harborview), Portland (The Oregon Burn Center at Emanuel Hospital), and The UC Davis Regional Burn Center.

Training and available resources vary from center to center.  Burn centers also tend to have more pronounced treatment philosophies and cultures because they are staffed by relatively few surgeons who generally practice in the same group or just a few groups.  However, although burn center practice varies, it is imperative that those who are seriously burned reach a regional burn center as soon as possible because specialized treatment is inarguably outcome-determinative

The mechanics of injury, lots of fire, accelerant, and contact with temperatures in excess of 1,000 degrees are factors that are considered when determining whether burns are graftable from point of admission.  In any serious burn case, most intermediate facilities such as a conventional hospitals will seek to transfer a seriously burned patient, almost always by air, to a regional burn center as soon as stabilization occurs.

 

Aviation, aviation attorney, aviation attorney, aviation, aviation law, aviation lawyer, aviation law, aviation lawyer, Catastrophic Injury, Evidence, Helicopters, Litigation, NTSB, Personal Injury, Product Liability, Trials

NTSB Releases Statistics on Aviation Fatalities in 2011

The National Transportation Safety Board is a unique federal agency.  It is not a federal executive branch agency.  Rather, it is congressionally chartered with a single aviation mandate: to investigate every aviation accident in the Unites States, determine the probable cause of the accident, and make recommendations to help protect against future accidents.  See 49 U.S.C. §§ 1131, 1132, 1135 (Lexis Nexis 2006 and Supp. 2011).  Although the full extent of the operational and investigative methods of the NTSB are beyond the scope of this article, 49 U.S.C. § 1154(b) prohibits litigants from using the final probable cause report prepared by the Board in any manner.  However, the NTSB has a team of investigators in different specialty areas who prepare factual reports that do not involve conclusions regarding the cause of the crash.  Use of these reports depends on the particular judge’s rulings on the rules of evidence, particularly Rule 803(8).

The NTSB recently released aviation data and statistics for transportation fatalities in 2011, including aviation.  According to the NTSB, there were 494 aviation fatalities in 2011.  Those fatalities are broken down by area as follows:  General Aviation (444); Air Taxi (41); Foreign/Unregistered (9); Airlines (0); and Commuter (0).

Olson Brooksby PC maintains an active aviation accident and aviation component part product liability defense practice.  For further information, please contact our office.

Consumer Expectation Test, Consumer products, CPSC, Defective Products, Failure to warn, Jury selection, Litigation, Personal Injury, Product Liability, Strict liability, Trials

The Single Test for Product Liability in Oregon

Olson Brooksby Has Extensive Experience With Product Liability Work in Oregon

Olson Brooksby defends product liability (including consumer products regulated by the CPSC such as lead toys and non-consumer products such as aircraft) and personal injury cases, with an emphasis on the defense of high exposure cases.

Both Kristin Olson and Scott Brooksby have tried product liability cases to verdict.  Their product liability practice includes, but is not limited to: aviation (aircraft and components), heavy equipment (including tractors, forklifts, loaders, logging equipment, and scissor-lifts), and industrial equipment used in the fabrication of raw steel and metals (including rollers, punch-presses, laser torches and other sample burners and test equipment).

Kristin Olson and Scott Brooksby also have experience with the following kinds of cases:

– Aviation, aircraft and their component parts.

– Paints, solvents, coatings, detergents, and pesticides, including benzene and toluene cases which resulted in liver and kidney transplants.

– Toys and recreational products, including paint ball guns, toys containing battery fire hazards, pogo sticks, pools, lead toys imported from India that were swallowed by children, toys allegedly containing lead paint, and inflatable and other recreational towables pulled behind boats.

– Tempered glass and conventional glass.

– Foreign objects or other alleged dangerous defects in food and drink products and packaging.

– Drug and medical device cases, including fraudulent vitamins and device replacements for hips, knees, ray cages and pedicle screws.

– Home appliance cases involving allegedly defective washers, dryers, stoves, heaters and heating equipment, green technology, and water heaters.

– Chemicals that resulted in a fatal automobile fire, burning a family of five, including fatal burns to two children.

The Consumer Expectation Test

Three types of product defects are recognized in Oregon: design defects, manufacturing defects, or failure to warn.  In any of these cases, to prevail on a product liability claim, the plaintiff must prove that the product was unreasonably dangerous.  In design defect cases, risk-utility proof is not required to make a prima facie case.

Although Kristin Olson and Scott Brooksby have defended cases involving countless different types of consumer and other products, the test for liability in each case in Oregon is “the consumer expectation test” and this test is always the same.  It applies regardless of whether the case is a negligence case or a strict liability action.

Under the consumer expectation test, the question 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 plaintiff has the burden of proving that a product is unreasonably dangerous.

The consumer expectation test is objective.  Jurors may not consider their own personal subjective views as to whether 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 case.  For a good overview of Oregon product liability law, the McCathern decision is worth reading.

Who are Proper Defendants?

Strict tort liability applies to any person engaged in the business of selling or leasing products for use or consumption.  This includes manufacturers, wholesalers, retailers, distributors, lessors, or in short, any person in the “stream of commerce”.  For a party to be held strictly liable in tort, that party must have sold or leased a product under the statute.  The Oregon product liability statute, codified at ORS 30.900 et. seq. provides that, “a manufacturer, distributor, seller or lesser of a product” may be subject to an action for a product that is unreasonably dangerous.  The Oregon Legislature did not adopt the caveat to RESTATEMENT (SECOND) OF TORTS §402A caveat 3 (1965), which contains the caveat for component-part manufacturers.  The Oregon
Supreme Court has ruled that component part manufacturers can be subject to strict liability for the sale of defective components.  However, the manufacturer of a component part is not the subject of strict liability if the component was misapplied rather than defectively designed.

Important Considerations When Defending Products Cases in Oregon

One of the most important considerations at trial is jury selection.  What are the perspective jurors’ views of governmental regulation of the product involved and products generally?  Does the jury have preconceived attitudes and experiences that will make them favorable opinion leaders during jury deliberations, or do they have negative attitudes and opinions toward manufacturers or corporations that make them predisposed to award plaintiffs large verdicts no matter what the evidence?

Does one of the many defenses, including statute of limitations, statute of ultimate repose, alteration or unforeseeable misuse or modification apply?  Was the danger of the product so open and obvious, and an alternative unavailable such that the utility and necessity of the product outweighed any danger?  These and many other defense questions will require further analysis well before trial begins, and often before discovery begins.  Disciplined defense strategy formation and execution, exhaustive development of potential defenses, and jury research are all be valuable in attempting to obtain defense or low verdicts.

 

 

 

Compliance, Consumer Product Safety Act, Consumer Product Safety Commission, Consumer products, CPSA, CPSC, Defective Products, Litigation, Manufacturing, Personal Injury, Product Liability, Product recalls

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

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

Federal Regulation

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

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

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

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

The Requirement of Reporting Consumer Product Defects to the CPSC

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

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

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

Why Familiarity And Compliance With CPSC Mandatory Reporting Requirements Matters

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

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

 

 

Amputation, Catastrophic Injury, Heavy Equipment Manufacturing, Heavy Machinery, Metal Punch Presses, OSHA, Personal Injury, Product Liability, Steel, Workplace Injuries

Mitigating Risk of Punch Press Amputations

With the incredible advances in safety equipment in and standards, one would think that punch press amputations would be a thing of the past.  However, they still occur today, and manufacturers with press operations need to be vigilant both about their safety equipment and practices, as well as their record-keeping

Extremely large metal punch presses can range in strength from about ten tons to 50,000 tons.  Larger presses that exceed something in the neighborhood of 150 tons can cost into the seven figures and present a tremendous capital investment burden, particularly for the small or mid-size metal component manufacturer.  Because of the incredibly high cost of this equipment, and because of the long life of the equipment and the possibility of retrofitting with modern safety devices, many ultra-heavy-duty punch presses are still in use today.  It is important that older equipment both be retrofitted with modern safety devices that comport with industry standards and that records of safety modifications or changes be maintained.

Scott Brooksby recently defended a mid-sized manufacturer that operated a hydraulic punch press that had been manufactured in approximately 1928 and was acquired by a client in approximately 1979.  After fifty-one years of continuous use, the punch press was still in excellent operating condition.  One day, for reasons that are not completely clear, the press descended and partially amputated the right hand of the manufacturer’s employee.  In the nearly 30 years before this accident, there had never been a single accident reported on the punch press.

These situations are often complicated by the number of, and nature of, control mechanisms, which can include foot pedals, hand pedals, electronic switches, buttons, or pedals that provide for slow “inch mode” movement, etc.  Often different operators will prefer different methods of use.  In this case, the primary operator was stationed at the front of the machine and would activate the press using an inch mode to set dies and then produce product more quickly as the operator at the rear removed and inserted the die in a continuous cyclical fashion, while the front operator operated the machine with a series of hand and foot pedals.

Although the press was originally built some eighty years before the accident, the manufacturer had diligently retrofitted the press with up-to-date safety modification, including 360-degree light curtains.  A commonly relied on safety device, light curtains are designed to stop descention of the press in the event that a hand or any object penetrated the light curtain.  In this case, the light curtains were installed both on the front and rear.  The light curtain appeared to have been interrupted at the time of the accident.  The precise cause of the accident will likely never be known.

After the press was acquired by the manufacturer, some add-ons and wiring and safety modifications were made.  The precise timing of the modifications was unclear.  The press was retrofitted with light curtains which were designed to prevent inch movement when the light curtains were broken. The front and rear light curtains appear to have been installed at different times. At some point prior to the accident, the light curtains were replaced with updated versions.  As part of routine maintenance procedures, the press was fitted with a new brake in 2004 or 2005. The new brake was not a safety add-on. The brakes on the machine were tested immediately after the accident and found in good order.

When the State Occupational Health and Safety Administration investigated, the accident maintenance records could not be located.

There are two important things to learn from this case:

1. Virtually every steel company, metal company, or manufacturer of component parts using these materials will have old (even decades-old) equipment that is working perfectly well and is perfectly safe by modern standards through the addition of retrofitted safety devices.  However, it is critical that such retrofitting be documented and that the documents be retained indefinitely, or maintained in strict compliance with a formal document destruction policy.

2. In most states, the OSHA agency conducting the investigation will want to interview, and will be entitled by statute or regulation to interview, employees involved in the workplace accident outside the presence of counsel, even if counsel has been retained and requested to be present.  This warrants the cost and discipline associated with diligent training.  Management should consider including a training module so that workers who are interviewed outside the presence of counsel focus only on speaking about what they saw, what they said, or what they heard others say, all limited to a first-hand perspective.

 

 

 

Consumer Expectation Test, Litigation, Negligence, Personal Injury, Product Liability

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.

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Helicopter Crashes in Helicopter Air Medical Operations

People are surprised to learn that helicopter crashes are more prevalent in Helicopter Air Medical Operations.  Generally, the statistical number of incidents of injury, accident or death in 14 C.F.R.§ 121 (known as “Part 121”, or commercial passenger aviation) operations are incredibly low.  There are more serious injuries and deaths resulting from helicopter air medical operations.

For example, in 2010, according to the NTSB (which is charged with investigating every aviation accident in the United States, and many abroad), there were no fatalities in any of the Part 121 accidents in 2010.  This despite some 17.5 million Part 121 flight hours.  Of all of the Part 121 flight hours in 2010, the most common defining event was a turbulence encounter, accounting for 26% of all Part 121 accidents in 2010.

Most of the defining events for Part 121 accidents in 2010 (just as they have been in general for the last 10 years) were events such as ground collisions, ground handling, runway incursion, cabin safety, system failure, bird strikes etc., many or most of which are ground events.  More than half of the Part 121 accidents that occurred in 2010 occurred during takeoff or landing (according to NTSB data, this is generally true of Part 121 accidents every year).  Less than half of Part 121 accidents in 2010 happened en route.  However, the major factor in Part 121 accidents is turbulence (even though, as a cumulative total, there are more incidents during takeoff and landing than there are en route).  En route, turbulence is the biggest factor in accidents because commercial airlines fly at multiples of the altitude that, for example, helicopters do.

Given the relative flying altitudes, flight durations, weather events, cruise speeds etc., involved in Part 121 operations, turbulence, as it is understood in Part 121 accidents, does not have anything to do with the relatively high incidents involved in helicopter air medical operations or helicopter accidents in general.

Interestingly, according to NTSB data, most helicopter air medical operations involving fatalities do not occur when patients are being transported.  Rather, most occur when helicopters are en route to get patients or when they are transporting organs.  The inference to be drawn is that, while helicopters have great pilots, those pilots are taking chances while flying that they do not take when a patient is on board.

Air medical operations are conducted under both Part 135 and Part 91, depending on whether patients are being carried on board the aircraft.  Helicopter Emergency Medical Services (“HEMS”) missions en route to collect patients, or organs, or to reposition aircraft after accomplishing patient transport operations, are generally conducted under Part 91.  Trips conducted to transport patients or organs on board are conducted under Part 135.  Some air medical helicopter operations, particularly for emergency medical services are conducted by state or local government entities as public use flights, whether patients are on board or not.

Although fixed-wing aircraft are also used for Part 91 and Part 135 medical missions, there were only 10 fixed wing fatalities in air medical operations during the entire decade between 2000 and 2009.

A Statistical Overview of HEMS Accident Frequency and Type

HEMS accounted for about 80 percent of all air medical accidents during the ten-year period 2001-2010.  Against this backdrop, we examine HEMS accidents, where in 2010 alone, there were 13 Helicopter Emergency Medicine Accidents (“HEMS”), 7 of which were fatal.  http://www.ntsb.gov/doclib/reports/2012/ARA1201.pdf (at page 2)  Six of the Seven HEMS fatalities in 2010 involved operations under Part 91.  From 200 through 2010 (the most recent year NTSB statistics are available), 33 percent of HEMS accidents were fatal.  Most HEMS accidents occurred during airborne phases of flight and during 2010, all HEMS fatalities occurred during airborne phases of flight.

Obviously this is explained in part by the fact that unlike fixed-wing air medical operations, HEMS do not generally operate out of establish aerodromes.  Instead, they operate out of off-airport locations where patients are in need of timely, critical care.  In every year except 2007, the number of Part 91 air medical helicopter accidents without patients aboard have been significantly higher than any other category of air medical flying.  http://www.ntsb.gov/doclib/reports/2011/ARA1101.pdf (at page 23)

It may be useful to breakdown the 31 accidents involving 32 helicopters in air medical operations between 2007-2009.  Eighteen were being operated under Part 91, 13 were conducted under Part 135, and one was conducted as a public use flight.  Eleven of the accidents, involving 12 helicopters, were fatal.  Collision with objects on takeoff or landing accounted for 7 of the 31 accidents, but no fatalities.  On the other hand, four of the five controlled flight into terrain accidents were fatal, including the crash of the Maryland State Police Public use flight carrying accident victims on approach to Andrews Air Force Base.  Two of the three loss of control in-flight accidents were fatal, as were two of the three unintended flights into instrument meteorological conditions accidents.  The midair collision between two HEMS helicopters conducting Part 135 operations in Flagstaff, Arizona, in June 2008 was also fatal to all on board.  The other two fatalities involving a non-power plant system were coded as other.  http://www.ntsb.gov/doclib/reports/2011/ARA1101.pdf (at page 24)

What Are The Typical Causes?

In any aviation operation, pilot training and experience, and pilot judgment are some of the most important factors in safe flight.  With helicopter operations generally, and particularly HEMS operations, pilot experience, training and judgment are even more critical because of the conditions they fly in, such as bad weather, night, rural areas where wires or other low strike points may not be lighted or marked and air-traffic may be uncontrolled.  HEMS operations also face an unparalleled need for speed to save lives.  Review of individual NTSB probably cause reports, NTSB factual data and other aviation industry data would tend to suggest that fatal and serious injury helicopter accidents are most often the result of a number of factors including loss of control, visibility issues, wired strikes, system component failure or post-impact fire.  Although some of these issues pose dangers during Part 121 operations, they simply do not pose the same risks, largely due to obvious differences in the nature of the aviation operation, the equipment, altitude, avionics, take-off and landings from tightly controlled air-space and the use of aerodromes.  In addition, HEMS operations often involve situations in which minutes may literally save life and limb, prompting hurried behavior.  While that is not to suggest that HEMS pilots are not some of the best helicopter pilots flying, they do face particular challenges, to which Part 121 pilots or even fixed-wing air medical operations pilots are less exposed.

There are also tremendous swings in helicopter air medical pilot training.  From 2007-2009, for example, NTSB data suggest that the accident helicopter pilots’ median age was 54, ranging from 35 to 69.  Median total flight hours were 7,125 with a range from 2,685 to 18,000.  The median time in the type of accident helicopter was 375 hours, ranging from 11 to 4,241.  Statistics suggest that such variations in flight time and the corollary impact on experience and judgment may be significant factors in the number of crashes. http://www.ntsb.gov/doclib/reports/2011/ARA1101.pdf (at page 26).  HEMS operations more often than not must use unimproved landing sites at accident scenes and helipads and hospitals or medical facilities.  Loss of control in flight was the most common event for both fatal and non-fatal helicopter crashes, followed by collisions on takeoff or landing and system component failure of the power plant.

Even though HEMS pilots may have thousands of flight hours, and are unquestionably some of the best helicopter pilots in the world, owners and operators of HEMS operations should continuously emphasize the consistent causes of HEMS crashes and adapt training programs to focus on those causes.

Olson Brooksby has an active aviation accident and aviation component product liability defense practice.  For more information, please contact our office.