The plaintiff alleged strict product liability, negligence, and loss of consortium against various defendants after her husband developed and died from mesothelioma. Defendant Warren Pumps was granted summary judgment, and plaintiff appealed. The court reversed and remanded.
During his 20-year naval career, the decedent served on two aircraft carriers — the USS Boxer and the USS Hancock — working on and around various pumps. Warren sold 51 pumps that were installed on the USS Boxer and 51 pumps that were installed on the USS Hancock in the 1940s. Some of these pumps originally had asbestos gaskets, packing, or external insulation, and were sold as a complete package. Warren’s corporate witness testified these were sold according to Naval specifications. The decedent worked with gaskets, packing, and insulation for these pumps. Neither party submitted evidence that Warren sold replacement parts to the Navy for these pumps. Both of these ships had been overhauled by the time decedent served on them, and decedent was not exposed to original Warren materials. No asbestos warnings were supplied with the pumps.
Regarding strict liability, the parties differed over the interpretation of Oregon law. The plaintiff argued that under Oregon law, it did not matter whether decedent encountered replacement asbestos parts sold by others to the Navy; what mattered was whether the pumps were substantially the same as when Warren originally sold them. Warren argued the relevant unreasonably dangerous products for purposes of Oregon law were not the pumps, but the gaskets, packing, and insulation that contained asbestos. Warren made the pumps, which were metal, and the decedent was exposed to asbestos products supplied by others. The court agreed with the plaintiff in that the products at issue were the pumps. First, this is what plaintiff alleged; second, Oregon law permitted the plaintiff’s theory; and third, comments to section 402A of the Restatement supported the plaintiff’s view. Further, Oregon case law was inconsistent with Warren’s urging of this “bare-metal defense, “and case law clearly stated that the statutory scheme controlled strict liability claims. The court did not accept the case law from other jurisdictions cited by Warren as persuasive. The court stated: “Regardless of whether the pumps might or might not operate without asbestos-containing gaskets and packing, plaintiff adduced evidence that defendant had every reason to know that the Navy, having required the placement of asbestos-containing parts in and on the exterior of some pumps by defendant’s design and pursuant to the Navy’s specifications, would continue to use such parts in and on the pumps defendant supplied to the Navy for the Essex Class aircraft carriers on which McKenzie served.”
Regarding negligence claims, the plaintiff argued Warren sold asbestos products, knew or should have known about asbestos hazards, and did not provide adequate warnings. Warren argued that the plaintiff alleged harm from asbestos replacement parts sold by non-parties, not the pump itself, and therefore failed to prove a causal link. However, the plaintiff’s theory was that Warren knew that pump maintenance required removal/replacement of asbestos parts. In Oregon, liability in negligence was based on foreseeability, which the jury could find in this case.