Oregon Supreme Court issues an opinion in a products liability case against an elevator service provider who installed parts man

The Oregon Supreme Court issued an important decision regarding products liability and the scope and meaning of ORCP 47E in Two Two v. Fujitec, et al, a products liability claim against an elevator service company.

                Two passengers were injured after the elevator they were riding in suddenly dropped. They filed products liability and negligence claims against the defendant, who had been hired to modernize the elevator.  The defendant moved for summary judgment on the strict liability claim, arguing that it had only provided a service by installing component parts during repair work and was not a seller, manufacturer, or distributer of any of the parts. The trial court agreed and granted summary judgment. The court of appeals affirmed, writing that “the evidence only supports the allegation that [defendant] provided a service by installing…” the parts. The Oregon Supreme Court declined to decide whether a business that supplies and installs a defective product may be strictly liable for injuries caused to a plaintiff by that product.  However, the court affirmed the trial court decision to dismiss the product liability claim, finding that plaintiffs did not have any evidence that the Defendant supplied the component parts at issue.  Of note, the court found the plaintiffs’ evidence that the defendant had received payment for unidentified parts and labor unpersuasive.

                The defendant had also moved the trial court for summary judgment on the negligence claim. In response to that motion, the plaintiffs submitted an affidavit under ORCP 47E alleging that plaintiffs had retained an expert who would support their claims that the defendant was negligent in the service and maintenance of the elevator. Oregon does not allow for expert discovery, and allows a party to oppose a summary judgment motion with an affidavit stating that the party has retained a qualified expert whose testimony will create an issue of material fact at trial. A party need not specify who the expert is or what the specific testimony will be.

In Two Two, the plaintiffs’ attorney stated before the trial court that the expert had not been retained to testify that the defendant’s negligence caused the plaintiff’s injuries. The trial court granted defendant’s motion, concluding that the affidavit was sufficient to defeat summary judgment on the issue of negligence, but did not address the issue of whether that alleged negligence caused the plaintiffs’ injuries.  The court of appeals agreed and found that the plaintiffs had not specified in the affidavit itself that the expert would testify on the issue of causation. But the Oregon Supreme Court reversed and found that the affidavit was sufficiently broad to create a question of fact on “all issues in the negligence claim on which the expert testimony would be necessary, including the element of causation.” 

                Plaintiffs will likely use this decision to support a broad reading of ORCP 47E affidavits submitted in response to summary judgment motions.  But the Two Two court also affirms the rule that if a party specifically identifies the issues that an expert will testify about in an ORCP 47E affidavit, that expert’s testimony will be considered to be limited to those issues for purposes of summary judgment.  The ruling will also be helpful in defending product liability claims with little evidence that the defendant manufactured, sold, or supplied the product at issue.



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