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.

ORS 20.080–An overlooked attorney fee statute in Oregon

Companies doing business in Oregon should be aware of ORS 20.080, which can provide for attorney fees in cases seeking damages of $10,000 or less.  That statute provides that prevailing plaintiffs may be awarded attorney fees under specified conditions described below. Therefore, in cases seeking compensatory damages of $10,000 or less, attorney fees can quickly approach or even outstrip the compensatory damages under ORS 20.080.

Whether the plaintiff “prevails” depends on a number of factors. Under the statute, the plaintiff must make a demand to the defendant AND the defendant’s insurer, if known to the plaintiff, for payment in writing no less than 30 days before filing a lawsuit. The written demand must include (if applicable and if the information is reasonably available to the plaintiff at the time): the medical records and bills, documentation of the repair of the property, an estimate for the repair of the property, and/or an estimate of the difference in value of the property before the damage and the value of the property after the damage.

If, after the plaintiff has made her written 20.080 demand and before she has filed the lawsuit, she obtains any additional written information that the demand would include, such as additional medical bills, she must send those documents to the defendant and the defendant’s insurer as soon as possible.

The only way the defendant can escape attorney fees in such cases is if the defendant offers the plaintiff more than the damages ultimately awarded to the plaintiff before the lawsuit is filed. In other words, if the plaintiff recovers $5,000, but the defendant offered $3,000 before the lawsuit was filed, the plaintiff still gets her attorney fees.

If the lawsuit is filed and the defendant has a counterclaim of up to $10,000 and the defendant prevails in the lawsuit, the defendant gets its reasonable attorney fees. What is “reasonable” is decided by the court.

It is important to notify your attorney right away after receipt of an ORS 20.080 letter to ensure that you strategize appropriately.  Although it may seem unpalatable, generally the best strategy is for defendant to make their best offer first, to minimize the risk of an award in excess of the offer and exposure to attorney fees. Many times, lawyers don’t receive cases until the lawsuit is filed and, in ORS 20.080 cases, that is usually too late.

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. (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. (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. (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. (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.



Strategies for companies defending against claims for PTSD

Most plaintiff and defense attorneys would likely admit that treatment of forensic psychological experts and posttraumatic stress disorder (PTSD) claims on behalf of their respective clients is difficult.  For the defense of a personal injury claim involving PTSD, it is essential that defense counsel have a thorough understanding of the interaction between the DSM-5, standardized testing, how the testing was scored, whether the tests administered had validity scales, and what other personal historical factors and information the plaintiff’s examining physician had available to him or her.  It is also important to determine whether the plaintiff’s expert considered other mental diseases or defects besides PTSD.  All of this is necessary for thorough cross-examination of a plaintiff’s expert and attacking misdiagnosed claims of PTSD.

There is no single test that will clinically establish the presence of PTSD.  Typically a number of tests such as the MMPI, the TSI or other standardized tests are administered.  Defense counsel should understand whether there are validity scales and what they show and be prepared to cross-examine the plaintiff’s expert in that regard.

Defense counsel should also cross-examine the plaintiff’s expert on his or her awareness of recent longitudinal studies done on PTSD  Defense counsel must determine whether the plaintiff’s expert is an experienced clinician.  What clinical judgment did the plaintiff’s expert apply to reach his or her diagnosis?  Did the plaintiff’s expert account for malingering?  If so, how?

Defense counsel should also cross-examine the plaintiff’s expert extensively on key diagnostic criteria such as “life-threatening” and “persistence”.

Posttraumatic Stress Disorder (“PTSD”) (DSM-IV-TR Code 309.81) is categorized by the DSM-IV(TR) as an Anxiety Disorder.

Posttraumatic Stress Disorder (PTSD) will be included in a new chapter in DSM-5 on Trauma- and Stressor-Related Disorders. This move from DSM-IV, which addressed PTSD as an anxiety disorder, is among several changes approved for this condition that is increasingly at the center of public as well as professional discussion.

“The essential feature of PTSD is the development of characteristic symptoms following exposure to an extreme traumatic stressor involving direct personal experience of an event that involves actual or threatened death or serious injury, or other threat to one’s physical integrity; or witnessing an event that involves death, injury, or a threat to the physical integrity of another person, or learning about unexpected or violent death, serious harm, or threat of death or injury experienced by a family member or other close associate.”  DSM-IV-TR at p. 463.

The response to the event must involve intense fear, helplessness, or horror.  In children, the response must involve disorganized or agitated behavior.  Characteristic symptoms include persistent re-experiencing of the traumatic event, persistence of stimuli associated with the trauma and numbing of general responsiveness and persistent symptoms of increased arousal.  DSM-IV-TR also states that the full symptom picture must be present for more than one month and the disturbance must cause clinically significant distress or impairment in social, occupational, or other important areas of functioning.

A nonexclusive list of traumatic events that are experienced directly include military combat, violent personal assault (sexual assault, physical attack, robbery, mugging), being kidnapped, begin taken hostage, terrorist attack, torture, incarceration as a prisoner of war or in a concentration camp, natural or manmade disasters, severe automobile accidents, or being diagnosed with a life-threatening illness.  For children, sexually traumatic events may include developmentally inappropriate sexual experiences without threatened or actual violence  or injury.

An individual will have persistent symptoms of anxiety or increased arousal that were not present before the trauma.  These symptoms may include difficulty falling or staying asleep that may be due to recurrent nightmares during which the traumatic event is relived, hyper-vigilance, and exaggerated startle response.  Some individuals report irritability or outbursts of anger or difficulty concentrating or completing tasks.

Associated Descriptive Features and Mental Disorders 

Part of the difficulty in an accurate diagnosis of PTSD, is that it is associated with many other anxiety and other mental disorders.  PTSD is also associated with increased rates of Major Depressive Disorder, Substance-Related Disorders, Panic disorder, Agoraphobia, Obsessive-Compulsive Disorder, Generalized Anxiety Disorder, Social Phobia, Specific Phobia, and Bipolar Disorder.  These disorders can either precede, follow, or emerge concurrently with the onset of PTSD.

PTSD Prevalence Rates

The DSM-IV-TR discusses community-based studies which reveal a lifetime prevalence for PTSD of approximately 8% of the adult population in the United States.  Information about general prevalence rates in other countries is not available.   Studies of at-risk individuals yield variable findings, with the highest rates (ranging between one third and more than half of those exposed) found among survivors of rape, military combat and captivity, and ethnically or politically motivated internment and genocide.

Differential Diagnosis

The DSM-IV-TR emphasizes that with PTSD, the stressor must be of an extreme, (i.e., “life-threatening) nature. DSM-IV-TR at p. 467.  In contrast, other mental disorders often mistakenly diagnosed as PTSD include Adjustment Disorder, where the stressor can be of any severity.  The test also points out that not all psychopathology that occurs in individuals exposed to an extreme stressor should necessarily be attributed to PTSD and may be the result of many other mental disorders.  Mentioned are Acute Stress Disorder, Obsessive Compulsive Disorder Schizophrenia  and other Psychotic Disorders or Mood Disorders with Psychotic Features.  Significantly, the test emphasizes that “[m]alingering should be ruled out in those situations in which financial remuneration, benefit eligibility, and forensic determinations play a role.”  DSM-IV-TR at p. 467.  Although a discussion of all diagnostic criteria is beyond the scope of this article, virtually each of the diagnostic criteria for PTSD emphasize that persistence of the symptoms, the re-experiencing of the event, and the avoidance of associated stimuli is essential.


Even a complete summary of the criteria and methodology for most effectively questioning or attacking a plaintiff’s claim of PTSD is far beyond the scope of this blog post.  Defense counsel must undertake a thorough investigation and consultation with a qualified expert, preferably one who also maintains a clinical practice.  When defense counsel is cross-examining plaintiff’s expert witness regarding a PTSD diagnosis, there is absolutely no substitute for thorough preparation and understanding of the DSM-IV criteria, clinical judgment, test results, current longitudinal or other studies and an awareness of all factors taken into account by plaintiff’s expert as the plain text of the DSM-IV-TR, and examples of the trauma and criteria typically associated with PTSD can often be easily contrasted with the data to disprove or minimize the emotional distress damages.  Olson Brooksby often defends high-exposure personal injury or product liability cases where plaintiffs seek damages for emotional distress and claim PTSD.  For more information, contact our office.

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