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.



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.




NTSB Hearing on Medical Helicopter Crash Considers Pilot Texting Ban

Close up of judge raising gavel in courtroom

The NTSB held a hearing on a fatal medical helicopter crash that took place in 2011.  After finding that smart phone texting was a contributing factor in the fatal crash, the NTSB recently considered a ban on pilot texting.  It is surprising that such a regulation is not already in place or under more serious consideration.  Because there was evidence that the pilot had not been texting during the 19 minutes before the crash, however, the NTSB did not take any formal action on such a ban.

This is part of a larger issue that demands attention — the egregiously high incidence of fatal and critical Helicopter Emergency Medical Services (HEMS) crashes, and resulting personal injuries.

Olson Brooksby practices a wide variety of aviation law.  We have experience representing airlines, aviation insurers, aviation product manufacturers, and airplane owners.  Our attorneys have handled a broad variety of aviation law matters, including personal injury defense; product liability defense litigation; contract and lease drafting; contract negotiation and disputes; and general aviation commercial litigation.

Much of the firm’s practice is devoted to aviation law, and we are one of the few firms in Oregon with aviation trial experience.  Scott Brooksby leads our aviation practice, devoting a substantial amount of his time and practice to aviation-related matters.  Scott served as local counsel for one of the largest aviation manufacturers in the world in a nine-week trial in Oregon state court.  The trial involved product liability issues and concerned a helicopter crash that resulted in burns, permanent injuries, and multiple deaths.  Mr. Brooksby is on the aviation subcommittee of the American Bar Association’s Mass Torts section.  Mr. Brooksby has also been featured as a speaker and a moderator at the American Bar Association’s Aviation Litigation National Institute in New York, New York.

Assess Steel Quality Control Testing For Potential of Personal Injury

Despite the recent domestic economic downturn, global demand for steel, other metals and heavy equipment continues to increase in emerging markets and elsewhere.  With the increasing demand for production, a potential source of personal injury that is often overlooked is quality control testing.  Manufacturers face pressures to produce, poor communication with and between workers, and what can sometimes be decades-old equipment.  This equipment has usually been continuously retrofitted and appears to function perfectly well, but that is not always the case and serious injury can occur during secondary procedures.

For example, Scott Brooksby defended a steel mill against the claim of a temporary worker who was subject to injury when he was struck in the head by a tail sample cut during sample burning operations.  During steel production, tail samples are typically cut from sheet steel.  At temperatures approaching 1300 degrees, the tails, which vary in size, are routed on a conveyor system into a sample burning room so that samples can be taken for routing to the laboratory to conduct tensile, radiographic and other quality control tests.  The conveyor system is a series of metal rollers controlled by a series of steel gates that regulate the tail samples so that they do not collide and cartwheel into the air or fall from the conveyor, posing a danger to workers.

In Scott Brooksby’s case, a steel tail approximately 8 feet long and 1.5 inches thick was cut from a sheet in the main production roller room.  At approximately 1350 degrees Fahrenheit, the sample, which approached 500 pounds, was routed into the sample burner room.  Sample burning and many other quality control processes may take place in smaller rooms adjacent to the main production halls.  The sample tail is diverted from the main hall after being cut from sheet steel via a steel roller conveyor system where it would pass through a series of gates controlled either electronically or by a set of foot or hand pedals.  By the time the eight foot sample reaches the penultimate steel gate it has cooled to approximately 1,000 degrees.  Theoretically, after passage through the final gate, the section is cut into smaller lengths, approximately 18-21 inches long, which can be used to stretch and test tensile strength or other quality control issues.

On this particular day, the final gate, at the sample burner itself (which is a laser torch used to cut the 18-21 inch tails), jammed shut just as the penultimate gate opened, allowing the eight-foot section to roll down the conveyor.  The section collided with the sample still clutched by the final sample burner gate and cartwheeled into the air, striking one of the two operators in the head and causing injury before falling and smashing the electronic control system.  The injured worker’s co-worker was able to deactivate further sample conveyance through use of a retrofitted electronic emergency estop.  The steel mill processed approximately 30,000 samples per year and the age of the conveyor system was unknown, but believed to be in excess of 40 years old.

Such cases can be important reminders that the original testing equipment may function perfectly well, but may be retrofitted with any number of safety devices.  It is critical that the documentation, if available on older machinery, be preserved and that any maintenance records, including the addition of such safety features as light curtains (which did not exist at the time older, but still functional equipment was manufactured).  If a steel or metal mill, foundry, or component manufacturer is operating older equipment, it may be prudent to do a safety engineering study on machinery such as sample burners that exist in virtually every steel mill to determine whether retrofitting available safety devices is an option.  For example, with the conventional sample burning conveyor system, it may be that the equipment is custom designed and custom safety add-ons such as horizontal spacers can be welded or bolted across the top of the conveyor at sufficient intervals so that the potential for a sample tail to cart wheel off the conveyor becomes impossible because any vertical force is arrested inches above the conveyor rollers.

If manufacturers have questions about the adequacy of the retrofitting of safety devices on older equipment, they should consider contacting the workplace safety regulatory agency in their state.  In some states, OSHA will work with companies and may even provide free safety audits during which the party requesting the audit is granted a period of immunity to correct safety violations that are discovered.  Manufacturers should check with their state safety agencies to determine whether such programs are available and should be sure to determine whether immunity from citation is provided in exchange for the voluntary request for inspection.

The additional safety precautions are particularly important in quality control test facilities such as the sample burning room where often less-experienced workers, or temporary workers who may not be sufficiently trained or conscious of the dangers, begin work.

Recall also that any such serious injury must generally be reported to OSHA immediately and certainly within 24 hours.  In such cases OSHA investigators may also appear at the premises unannounced and, in most states, there is no right to have counsel present when OSHA is conducting its initial interviews with employees, so management should consider a plan for unplanned requests for interviews from safety investigators and ensure that employees are instructed in advance to focus on only what they actually saw, heard, or said during such interviews.

Oregon Supreme Court Upholds Personal Injury Claims Cap

A helicopter releases fire-suppressant chemicals on a forest fire.

In Howell v. Boyle (March 14, 2013), the Oregon Supreme Court found that the Oregon Tort Claims Act (OTCA) limited plaintiff’s approximately $1 million in damages to $200,000 (the OTCA cap) and that the cap was not unconstitutional under article I, section 10 of the Oregon Constitution.

This case is significant because if the remedy clause of the Oregon Constitution, Article I, section 10, is at issue, personal injury defense attorneys can now argue that, under Howell, caps are constitutional and should be upheld as long as the plaintiff’s recovery is “substantial.”

In Howell, a city police officer struck the plaintiff with his vehicle at night in an unmarked crosswalk.  (Id. at 2.)  The jury awarded the plaintiff approximately $1 million, finding the plaintiff and the defendant each 50% at fault.  (Id. at 3.)  Accordingly, the court reduced the plaintiff’s damages by half. The defendants argued that the plaintiff’s award should be reduced further to comply with the OTCA cap of $200,000.  (Id. at 1.)  The trial court denied the defendants’ motion and held that the cap violated the remedy clause of Article I, section 10, of the Oregon Constitution.  (Id.)  Ultimately, however, the Oregon Supreme Court overturned the trial court’s ruling and upheld the cap.  (Id. at 2.)  The court reasoned that, even assuming that the plaintiff’s negligence claim was “constitutionally protected by Article I, section 10, the $200,000 limitation on her recovery is constitutionally permissible.”  (Id.)

Under Smothers v. Gresham Transfer, Inc., 332 Or 83, 124 (2001), the Oregon Supreme Court established a two-part formula for analyzing claims brought under the remedy clause: (1) Did the plaintiff allege an injury to one of the absolute rights protected by Article I, section 10?  In other words, when the constitution was drafted in 1857, could one file a claim for the alleged injury under Oregon common law?  If the answer is no, then the remedy clause is not at issue and the analysis is concluded.  Howell at 13.  However, if the answer is yes, “and if the legislature has abolished the common-law cause of action for injury to rights that are protected by the remedy clause,” then we move on to the second question.  Smothers, 332 Or at 124.  (2) Did the legislature provide a “constitutionally adequate substitute remedy for the common-law cause of action for that injury”?  (Id.)

In Smothers, for example, the court found that, because the plaintiff’s claim for employer negligence could have been brought under common law in 1857 and because the workers’ compensation statutes’ exclusive remedy provision completely eliminated such a claim, the statute was unconstitutional.  Id. at 136.

Determining whether a substitute remedy is constitutionally adequate is difficult.  However, under Smothers, the remedy cannot be “emasculated.”  Id. at 119.  Rather, it must be capable “of restoring the right that has been injured.”  Id.  In other words, the remedy must be “‘substantial.'”  Howell at 13 (quoting Smothers, 332 Or at 120 n 19).  Whether an award is “‘substantial’ requires ‘flexibility and a consideration of the facts and circumstances that each case presents.'”  Howell at 18 (quoting Hamlin v. Hampton Lumber Mills, Inc., 349 Or 526 (2011)).

The Oregon Supreme Court has concluded that damages limitations “are constitutionally inadequate in only two cases,” Neher v. Chartier, 319 Or 417 (1994) and Clarke v. OHSU, 343 Or 581 (2007).  Howell at 19.  In Neher, the court held that the remedy was inadequate because the parents of the victim were completely deprived of any remedy, while the estate benefitted from $3,000 in burial costs under the workers’ compensation law.  Howell at 19.  In Clarke, the court held that the plaintiffs were deprived “of all but one percent of the more than $17 million in damages that they would have otherwise recovered[.]”  Howell at 19.

The court distinguished Howell from Neher and Clarke because, in Howell, the plaintiff was not devoid of a remedy and the remedy was “far more substantial” than that in ClarkeHowell at 19.

The Howell court also recognized a quid pro quo at work in the OTCA cap because “the city remains liable for the torts of its employees committed within the scope of employment.”  Id. at 19-20.  And although there is a cap, the OTCA substitutes the “‘deep pocket'” of the city for the individual employees.  Id. at 20.  “Plaintiffs, in other words, have been conferred a substantial benefit in exchange for the damage limitation.”  Id.

The plaintiff argued that her right to be made whole was eliminated by the cap and that, under common law, the plaintiff had the right to obtain the full measure of damages.  Id. However, the court reiterated that, under Clarke, the legislature can “‘vary and modify both the form and the measure of recovery for an injury[.]'”  Howell at 21-22 (quoting Clarke, 343 Or at 606) (emphasis added in Howell).  The Howell court pointed out that there is no guarantee that plaintiff be given a “whole remedy,” rather that plaintiff not be left “‘wholly without remedy'”.  Id. at 22.

The dissent in Howell argued that a partial remedy, via the OTCA cap, was inadequate (i.e., emasculated) because, under the substitute remedy of the cap, the plaintiff was not wholly restored as required by the the text and context of the constitution.  Id. at 25.  However, the court’s majority pointed out that, under Smothers, “what must be ‘restored’ is an injury that would have been recognized as the basis for a cause of action in 1857.”   Howell at 26 (emphasis in original).  In 1857, negligence claims were subject to the contributory negligence doctrine, where any fault by the plaintiff would operate to completely bar the plaintiff’s claim.  Id.  The court found that, therefore, the $200,000 in damages that the plaintiff would receive under the cap was fully “‘restorative’ of her common-law negligence claim.”  Id. at 33.

Therefore, the court concluded, the cap does not “leave plaintiff with a constitutionally inadequate remedy under Article I, section 10, of the Oregon Constitution.”  Id. at 36.


Attendance of counsel or other third parties at IMEs in Oregon

Close up of judge raising gavel in courtroom

Today, in Lindell v. Kalugin, an en banc opinion, the Oregon Supreme Court, issued an an important ruling for the defense concerning IMEs in Oregon.  The court ruled that a plaintiff is not automatically entitled to be accompanied to an independent medical examination (IME).

An ongoing dispute for many years in Oregon has been whether a plaintiff’s counsel or a family member or friend can attend an IME requested by the defense.  After performing a balancing test, the court ruled that the defense was entitled to have the plaintiff examined without having a family member, friend, or counsel in attendance.  The court noted that this was in part so that the IME examiner, and by extension the defense, could evaluate the true responses of the plaintiff unaltered by the presence of the third party and get a true unencumbered and uninfluenced sense of the plaintiff’s condition.

The court did not, however, rule that under no circumstances would a third party be permitted.  Rather, the court ruled that the proper showing of need had not been made.

This opinion likely does not alter the customary practice in Oregon of trial court judges allowing a third party to be present at an IME in cases involving children or vulnerable adults.

However, this opinion will likely have particular importance in sex abuse cases where psychological, psychiatric or other evaluations are done that involve testing.



Proving economic damages in Oregon

Oregon’s economic damages statute, ORS 31.710(2)(a) provides that:

“Economic damages” means objectively verifiable monetary losses including but not limited to reasonable charges incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less.

Under ORS 31.710(2)(a), what is the nature and amount of proof necessary to establish economic damages?  In Kahn v Pony Express Courier Corp., 173 Or App 127, 160-61 (2001), rev den, 332 Or 518 (2001), the Oregon Court of Appeals clarified that only reasonable probability is required to prove economic damages and no particular amount of proof is necessary.  Under ORS 31.710(2)(a), the term “objectively verifiable” means only that damages are “’capable of confirmation by reference to empirical facts.’”  Kahn, 173 Or App at 160 (quoting DeVaux v. Presby, 136 Or App 456, 462 (1995)).  For instance, in a case involving the plaintiff’s loss of earning capacity, the statutory standard is met even if a plaintiff’s loss can only be approximated using probabilities to calculate the loss.  Id. at 161.

Kahn did not change the requirement that a Plaintiff’s expert express the claimed economic damages in terms of a reasonable degree of medical, economic, or other scientific probability.  Id.  But a plaintiff’s expert can prove economic damages by testifying “to economic assumptions that necessarily rest on estimates and predictions of uncertain future events.”  Id. (internal citation and quotation marks omitted).

Under OEC 703, defense counsel is entitled to, and should in many cases, exhaustively cross-examine plaintiff’s expert to ensure that the plaintiff’s damages are within a reasonable degree of probability.

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.  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.



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