McKenzie v. A.W. Chesterson Co.

• Decision Date: 20 April 2016
• Docket Number: 090607908,A145735.
• Citation: 373 P.3d 150,277 Or.App. 728
• Parties: Paul George McKENZIE and Dana Jeunea McKenzie, husband and wife, Plaintiffs–Appellants, v. A.W. CHESTERSON COMPANY, et al., Defendants, and Warren Pumps, LLC, individually and as successor-in-interest to Quimby Pump Company, Defendant–Respondent.
• Court: Oregon Court of Appeals

277 Or.App. 728

373 P.3d 150

Paul George McKENZIE and Dana Jeunea McKenzie, husband and wife, Plaintiffs–Appellants

v.A.W. CHESTERSON COMPANY, et al., DefendantsandWarren Pumps, LLC, individually and as successor-in-interest to Quimby Pump Company, Defendant–Respondent.

090607908

A145735.

Court of Appeals of Oregon.

Argued and Submitted Feb. 11, 2014.

Decided April 20, 2016.

James S. Coon, Portland, argued the cause and filed the briefs for appellants. With him on the opening brief was Swanson Thomas & Coon. With him on the reply brief was Swanson, Thomas, Coon & Newton.

Laurie Hepler argued the cause for respondent. On the briefs were J. Michael Mattingly, Allen Eraut, and Rizzo Mattingly Bosworth PC.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and NAKAMOTO, Judge pro tempore.

NAKAMOTO

, J. pro tempore.

Plaintiff appeals in this product liability civil action resolved by summary judgment in favor of defendant Warren Pumps, LLC. Plaintiff's late husband, Paul McKenzie, served on two aircraft carriers during his naval career, working on and around various pumps that defendant had manufactured and sold to the United States Navy in the 1940s. In claims for strict product liability, negligence, and loss of consortium brought against defendant, plaintiff alleged that her husband had developed mesothelioma

after his exposure to asbestos-containing replacement gaskets, insulation, and packing used with defendant's pumps. Plaintiff contended that it was foreseeable that those replacement items would be used with the pumps and that defendant should have warned of the dangers of asbestos exposure with the use of its pumps.¹ Defendant filed a summary judgment motion in which it argued, among other things, that, even if plaintiff could prove that McKenzie had been exposed to asbestos through the replacement items, plaintiff failed to adduce sufficient evidence that defendant had manufactured them or supplied them to the Navy and, therefore, that it was entitled to judgment in its favor on all claims as a matter of law. The trial court granted defendant's summary judgment motion on plaintiff's claims.

On appeal, plaintiff argues that defendant is subject to liability on all her claims because, at the time McKenzie worked around the pumps, they were in substantially the same condition as when defendant had sold them to the Navy and it was foreseeable that seamen would be exposed to asbestos through the replacement gaskets, packing, and insulation used with defendant's pumps, even though defendant had not manufactured or sold the replacements. On the issue presented as to plaintiff's strict product liability claim, a matter of first impression in Oregon, we conclude that the statute that governs strict product liability in Oregon permits plaintiff's theory of liability. We also conclude that plaintiff has adduced facts supporting the disputed causation element of her negligence claim. Finally, we conclude that the trial court erred in dismissing plaintiff's loss of consortium claim, which piggy-backed on the strict liability and negligence claims. Accordingly, we reverse and remand.

I. FACTS

The material facts are primarily undisputed for purposes of this appeal from summary judgment. When they are not, we state the facts in the light most favorable to plaintiff, the nonmoving party. ORCP 47

C.

McKenzie served in the United States Navy for almost 20 years, retiring in 1972. During part of his naval career, McKenzie served on two steam-powered Essex Class aircraft carriers, the USS Boxer and the USS Hancock. During the 1940s, defendant had sold 51 pumps of numerous types that were installed on the USS Boxer and the same number of pumps that were installed on the USS Hancock. Both carriers went into service in 1944, and McKenzie worked aboard each carrier years later: on the USS Boxer from 1954 to 1959 and on the USS Hancock from 1968 to 1970.

Defendant's sales records indicated that some of defendant's pumps sold for those carriers originally had asbestos-containing gaskets, packing, or external insulation material. Defendant did not manufacture those items; rather, defendant purchased them from third parties. Defendant manufactured the pumps, and it sold the pumps with gaskets, packing, or insulation as “a complete package.”

Defendant's corporate witness, Roland Doktor, testified that defendant designed the pumps and obtained the Navy's approval of pump design drawings. Doktor also explained that, if defendant's pumps had not met the Navy's specifications, they would have been rejected.

On the USS Boxer, McKenzie worked in and around boiler rooms, ascending through the ranks from Fireman to Boilerman Chief. The boiler rooms to which McKenzie was assigned contained at least seven of defendant's pumps.

McKenzie's responsibilities included overseeing the proper operation, maintenance, and repair of pumps, including those manufactured and sold by defendant. McKenzie's work on the USS Boxer exposed him to asbestos.

Part of McKenzie's work was to replace packing inside pumps, which sometimes involved his exposure to asbestos fibers. Packing was located on both ends of the pump and sometimes contained fibrous material, such as plant fiber or asbestos. McKenzie had to remove and replace packing multiple times. He did so as part of a major overhaul of the USS Boxer; he replaced packing every few months to maintain bilge pumps; and he disassembled the fire pump and changed its packing “a lot” of times because it was in his area.

McKenzie also worked on gaskets. Internal gaskets that defendant originally used within some of its pumps, which were regularly replaced, contained asbestos. Although he primarily worked with external flange gaskets, which were installed between a pump and the ship's piping and which defendant had not supplied to the Navy, McKenzie sometimes worked on internal gaskets.

In addition, McKenzie had to remove insulation on the outside of the pumps to service them, which exposed him to asbestos. Doktor testified that, as specified by the Navy, defendant insulated cylinders

on defendant's steam pumps with “[i]nsulating material of 85 percent magnesia.” The insulation around the steam pumps was then encased in sheet metal housing. (The Navy similarly insulated pipes and boilers on board the carrier.) Doktor explained that 85 percent magnesia “does have some asbestos material in it.” He also noted that some pump cylinders were encased with an asbestos metallic cloth ring. When McKenzie had to replace packing on a pump valve, he first had to remove the external insulation.

McKenzie's job duties were different when he served aboard the USS Hancock. By that time, McKenzie was in charge of maintenance and operation of the boiler rooms and performed mostly administrative tasks. However, he still spent time in the fire rooms and boiler rooms and occasionally provided hands-on help as needed. In terms of engine rooms, fire rooms, and equipment on the vessel, the USS Hancock was “exactly the same” as the USS Boxer.

Doktor testified that defendant would, if required by a specific Navy order, supply a set of replacement parts (onboard spares) made of the same material as the originals, with an initial pump delivery. The onboard spares included gaskets and packing but not external insulation. Neither party submitted evidence that, after delivery of the pumps, defendant sold replacement parts to the Navy for use on the USS Boxer or the USS Hancock.

Given when the aircraft carriers went into service, McKenzie was not exposed to asbestos from asbestos-containing gaskets, packing, or insulation supplied by defendant for its pumps. Both the USS Boxer and the USS Hancock had undergone overhauls by the time McKenzie served on them. The repair records for the USS Boxer detailed extensive pump maintenance, and the USS Hancock was overhauled or repaired at least eight times before McKenzie reported onboard. Defendant's documents showed that any original asbestos-containing gaskets and packing would have been removed and replaced during necessary maintenance and overhaul, and McKenzie himself believed that any pumps on the ships on which he served would have had gaskets and packing replaced before he ever encountered the equipment. Thus, for purposes of this appeal, plaintiff concedes in her reply brief that, although “McKenzie was exposed to asbestos when working on those pumps,” asbestos-containing gaskets, packing, and insulation originally supplied with a pump defendant made and sold “would have been replaced with other asbestos parts that plaintiff did not prove were sold by [defendant].”

Defendant did not supply warnings with respect to the hazards of asbestos with any of its pumps that it sold to the Navy. Almost four decades after his retirement from the Navy, McKenzie was diagnosed with mesothelioma

.

Plaintiff sued defendant and numerous other manufacturers and distributors, who, according to plaintiff, manufactured, sold, or distributed “asbestos-containing products or products that were used in conjunction with asbestos” at job sites where McKenzie worked. Plaintiff asserted three claims: strict product liability, negligence, and loss of consortium. For her strict liability claim, plaintiff alleged that defendant sold “asbestos-containing products or products that were used in conjunction with asbestos, including, but not limited to pumps.” Plaintiff also alleged that defendant's products were “unreasonably dangerous and defective” because (a) they “caused pulmonary disease

and/or cancer if inhaled by individuals”; (b) they “continued to release asbestos fibers into the atmosphere” once installed; and (c) defendant “did not provide sufficient warnings and/or instructions of the harm caused by exposure to asbestos-containing products or adequately notify the public of [its] products' dangerous propensities.” For her negligence claim, plaintiff alleged that defendant (1) distributed or sold asbestos-containing products when defendant...