Lawyers, Business Groups Go to Task over Ore. Product Liability Laws

June 25, 2007

Business advocates and trial lawyers could be headed for a showdown over Oregon’s product liability laws before the legislative session comes to its scheduled end next week, and the verdict is anything but certain.

The fight is over the ban Oregon places on the right to sue a manufacturer if you’re harmed by a defectively designed product that’s more than eight years old. Lawyers say that’s one of the shortest windows in the nation, second only to North Carolina’s six year limit.

They’re pushing to put Oregon in line with neighboring California, Washington and Idaho and allow residents to sue the manufacturer for damages within “the useful life of the product,” a decision that’s made on a case-by-case basis.

They say that would bring justice to Oregonians like the five teachers from the Lake Oswego school district, whose eyes were badly burned by radiation leaked from a broken metal halide light hanging in an elementary school gymnasium.

The teachers — most of whom still can’t venture outside without sunglasses, and must deal with constant burning and itchiness in their eyes — have been unable to sue the New Jersey-based manufacturer of the bulbs, because of the Oregon law’s eight-year window.

Confronted with such stories in the past, lawmakers have tended to carve out exemptions to the eight year rule: for families hurt by exploding sidesaddle gas tanks, breast implants and asbestos exposure.

Just this session, lawmakers extended the statute of limitations for civil claims for injury or death linked to the use of some painkillers, including Vioxx, which has been linked to the increased risk of heart attack or stroke.

Lawyers say such cases are relatively rare, but that the mounting list of exemptions has made the case for a wholesale overhaul of the statute.

Business groups, though, are arguing vociferously against any such thing, saying it could drive up insurance costs, particularly for manufacturers, encourage frivolous lawsuits and scare away new businesses.

And they point out that manufacturers can’t be responsible for how a product is treated or maintained after it has been sold.

‘Asking manufacturer to be responsible for acts of others which we have no control over is poor public policy,” said Howard Werth, controller of Gunderson LLC, the Portland-based railcar manufacturer, at a recent hearing in front of a House committee.

But trial lawyer Richard Lane told lawmakers at the same hearing that in order to sue, plaintiffs would have to show that defects were present at the time of initial sale, and that there had been no alteration or misuse of the product.

Though Republicans have traditionally been more aligned with business interests, and Democrats tend to be more sympathetic to pleas from the legal community, the proposed bill has its advocates and opponents from both parties.

Some Democrats, like Rep. Mike Schaufler, D-Happy Valley, have already made it clear that they’ll be siding with industry on this one. And some Republicans, like Rep. Dennis Richardson of Central Point, have come down on the side of the lawyers.

“Individual families have lost their rights because of an arbitrary date,” said Richardson, who is also a lawyer. “When people are seriously injured by defectively designed products, those responsible for the design should pay. Otherwise, it shifts responsibility to the taxpayers, which is unfair and irresponsible.”

Odds for passage this session look dicey, since lawmakers have plans to exit no later than June 29, and the bill hasn’t yet had a hearing on the floor of either chamber.

But it could wind up as a last-minute bargaining chip, party insiders said.

“At the end of every session, there are always a number of important bills that are passed, and they wait because they are hard to pass,” said Rep. Greg MacPherson, D-Lake Oswego, a lawyer who heads the House Judiciary committee. “My guess is that this bill will still move.”

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