April 28, 2016

The Oregon Court of Appeals - in a unanimous 3-0 decision - rejected the “bare metals” defense in McKenzie v. A.W. Chesterson, 277 Or.App 728 (2016). The Court specifically declined to follow the line of cases of our sister states, Washington (Simonetta v. Viad Corp., 165 Wash 2d 341, 197 P3d 127 (2008); Braaten v. Saberhagen Holdings, 165 Wash 2d 373, 198 P3d 493 (2008)0 and California (O’Neil v. Crane Co., 53 Cal 4th 335, 266 P3d 987 (2012).

The Court held that the Oregon Product Liability Statute, ORS 30.920, relying on the Restatement (2nd) Torts, 402A, supported Plaintiff’s theories that it was foreseeable asbestos-containing replacement parts made by others would be used its equipment. Therefore, plaintiff was entitled to put on her case to the jury that the defendant owed a duty to warn of the risks of working with our around those asbestos-containing components parts.

 What was important for purposes of strict products liability under ORS 30.920(1) was whether the asbestos-containing pumps manufactured by and sold to the US Navy were unreasonably dangerous at the time of sale and not substantially changed by the time of exposure to plaintiff.  And, by substantially changed, the court did not find persuasive that the gaskets, packing and insulation were no longer OEM.  It is the entire pump itself which saw no change even after significant ship overhaul.  The Court and the plaintiff admitted that the plaintiff was not exposed to any asbestos-containing gaskets, packing and insulation provided by the pump manufacturer. 

Quoting from the comments to the Restatement 402A, the Court agreed with the plaintiff that if a seller has reason to anticipate that danger may result from a particular use, the seller may be required to provide adequate warning of the danger, and a product sold without such warning is in a defective condition.  Also, the court noted that that a defective condition may arise not only from “harmful ingredients, not characteristic of the product itself” for also for other external objects such as how the product is prepared or packaged, and the product should be locked at as an “integrated whole” in terms of the consumer.   

Warren Pumps intends to seek discretionary review to the Oregon Supreme Court.  However, of note, Justice Nakamoto, who authored the opinion, was recently appointed to the Oregon Supreme Court.  So, going forward, until such as time as the Oregon Supreme Court holds to the contrary, we expect the focus of an asbestos case, particularly one involving asbestos containing component parts to be on the nature of the product at the time of sale to the end user and whether at the time of sale it contained unreasonably dangerous components parts which the manufacturer knew or should have know would be replaced with similarly dangerous component parts.


Contact our Portland or Seattle team for additional information.