Oregon law says product manufacturers and sellers must give warnings about the dangers of using their products. Some product manufacturers have argued that they need to warn only about danger caused directly by their own products, not about the danger of using their product with products made by others — like marine pumps with asbestos parts. However, the Oregon Court of Appeals recently rejected that argument, and the Oregon Supreme Court has now denied review of that decision. TCNF appellate counsel Jim Coon represented the family of the Paul McKenzie, who died of mesothelioma because he was exposed to airborne asbestos fibers while maintaining marine pumps for the Navy. McKenzie v. A. W. Chesterson Co., 277 Or App 728, review denied 2016 Or LEXIS 580 (Sept. 15, 2016).
Warren Pumps made marine pumps for Navy ships in the late 1940s. It sold those pumps to the Navy with asbestos parts, like gaskets, packing and insulation. When workers like Paul McKenzie serviced those pumps in the 1950s and ‘60s, they would chip and grind the asbestos parts off and replace them as they put the pumps back together. That meant asbestos particles in the air, and Warren gave no warning about the danger of breathing asbestos, so Paul and other workers did not wear respirators or other breathing protection. Paul got mesothelioma, a fatal disease caused by exposure to asbestos, which takes decades to develop, and he filed a claim in court against Warren Pumps in 2009. The pump company argued that Paul couldn’t prove it had manufactured the asbestos parts that caused his mesothelioma – they could have been asbestos parts made by someone else. Warren argued the products that injured Paul were not the pumps it sold the Navy, but the asbestos parts that could have been made by someone else. That is called the “bare metal defense.” It says “We are responsible for warning only about the thing we made; we don’t have to warn about our product’s use with other products, even though we know those products will be used together.” The trial court agreed with Warren and dismissed the case before it ever got to a jury.
TCNF appealed on Pauls’ behalf, and The Court of Appeals reversed the trial court decision, rejecting Warren’s argument. The Court said the pumps were originally provided with asbestos parts, and, when Paul serviced the pumps, they were in the same condition as when they left Warren’s factory. The asbestos parts were part of the pumps that Warren sold to the Navy. And Warren should have known that the pumps would be used in the future with asbestos parts made by others, so it had a duty to put a warning on its pumps about the need for respirators or other protection against breathing asbestos fibers. The Oregon Supreme Court denied review, and the case will go back to the trial court for a jury trial.