Santa’s 2017 Naughty & Nice List

Courtesy of the Rizzo Mattingly Bosworth elves

By Allen Eraut

Santa took time out of his busy schedule to confer with us on this year’s Naughty & Nice List of Pacific Northwest legal developments. Here’s what made the list in 2017…

Nice:Railroads and out-of-state companies. In Barrett v. Union Pacific, the Oregon Court of Appeals affirmed the dismissal of Union Pacific for lack of personal jurisdiction. Barrett endorsed the approach taken by the United States Supreme Court in Daimler AG v. Bauman, which held that general jurisdiction for companies exists in the company’s state of incorporation and principal place of business. Barrett is a good case to use to protect against last-minute holiday forum shopping.

Nice:Damages caps. The Oregon legislature did not raise Oregon’s $500,000 non-economic damages cap (ORS 31.710), which is a powerful negotiation tool in defending high-exposure cases. However, in Vasquez v. Double Press Mfg., the Oregon Court of Appeals held that Oregon’s $500,000 non-economic damages cap on a personal injury award in a product liability case was unconstitutional as applied to a plaintiff who was awarded $4.8 million in non-economic damages.

Naughty:Loss of chance. In Smith v. Providence Health, the Oregon Supreme Court recognized for the first time that a plaintiff who sustained some physical harm could state a common law medical negligence claim by alleging that the defendant caused a loss of the plaintiff’s chance at recovery.

Naughty:Bare metal defense in asbestos cases. In Woo v. General Electric, a Washington court reversed summary judgment in favor of an equipment manufacturer where there was evidence that the equipment manufacturer knew that asbestos-containing insulation, gaskets, and packing were a necessary function of the equipment, and the equipment manufacturer knew that only asbestos-containing components were available during the time period of the exposure. Woo signals a return to the days when asbestos defendants were held liable for products they did not manufacture or sell.

Naughty:Verdicts. This was not the best year for verdicts in asbestos cases, with an $81 million Washington verdict in Coogan, and a $5.7 Oregon verdict in Sprague. But the year ended better with only (relatively speaking here) a $975,000 Washington verdict in Leren.

Nice & Naughty: Attorney fees. This one could go either way, depending on whether you are recovering attorney fees or faced with a fee claim. In Hunters Ridge Condo. Assoc. v. Sherwood Cross., LLC, the Oregon Court of Appeals found that attorney fees in a construction defect action could be covered under a commercial general liability policy, either as “damages” or under the “Supplementary Payments” coverage.

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