McKenzie v. A. W. Chesterson Co.
373 P.3d 150
Or. Ct. App.2016Background
- Plaintiff sued Warren Pumps after her husband McKenzie developed mesothelioma from asbestos exposure while working on USS Boxer and USS Hancock; defendant sold pumps to the Navy in the 1940s that were installed on those ships.
- Defendant sold pumps as a "complete package" that originally included asbestos-containing gaskets, packing, or insulation, but did not manufacture those component parts itself; replacement parts later used were sold by third parties.
- McKenzie worked on and maintained pumps in the 1950s–1960s and was exposed to asbestos when replacing packing, gaskets, and removing external insulation; original asbestos parts would have been replaced long before his service.
- Plaintiff pleaded strict product liability (failure to warn), negligence (failure to warn/tests), and loss of consortium; defendant moved for summary judgment arguing plaintiff could not prove defendant supplied or manufactured the asbestos-containing replacement parts McKenzie encountered (the "bare-metal" defense).
- The trial court granted summary judgment for defendant; on appeal the Oregon Court of Appeals reversed and remanded, holding plaintiff’s theories survived summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Identity of the product for strict liability (ORS 30.920) | Pumps sold by Warren (including asbestos-containing parts or reasonably expected replacements) are the product; strict liability applies if the pump reached users substantially unchanged | Only the asbestos-containing gaskets/packing/insulation (made/sold by others) caused the harm; Warren cannot be strictly liable for others' products ("bare-metal" defense) | Court: the pumps as sold (including foreseeable asbestos-containing components/replacements) can be the product under ORS 30.920(1)(b); bare-metal defense does not bar plaintiff at summary judgment |
| Failure-to-warn strict liability — foreseeability and substantial sameness | Warren knew or should have anticipated that asbestos-containing parts would be used/replace pumps and thus had duty to warn under ORS 30.920 and Restatement 402A comments | Even if foreseeable, Warren did not sell the replacement parts that actually emitted asbestos, so no causation or duty as a matter of law | Court: record contained evidence that (a) pumps were sold with/as expected to have asbestos parts and (b) Navy specifications made continued asbestos use foreseeable; summary judgment inappropriate |
| Negligence (Restatement §388 duty to warn) | Warren, as supplier, knew or should have known pumps used with asbestos parts were dangerous and failed to warn about respiratory protection | Causation fails because Warren did not supply the replacement asbestos parts; alternatively, no duty beyond chain of distribution (relying on Washington/California no-duty cases) | Court: §388 applies; foreseeability of continued asbestos use and exposure can support negligence claim; summary judgment improper |
| Loss of consortium | Derivative of strict liability and negligence — if those survive, this claim survives | Dependent on dismissal of underlying claims | Court: Because strict liability and negligence claims survive, loss-of-consortium claim also survives |
Key Cases Cited
- Griffith v. Blatt, 334 Or 456 (discussing statutory control of strict liability claims and learned-intermediary context)
- McCathern v. Toyota Motor Corp., 332 Or 59 (codification and scope of ORS 30.920)
- Simonetta v. Viad Corp., 165 Wash 2d 341 (Washington no-duty/bare-metal rule rejecting certain Restatement 402A comments)
- Braaten v. Saberhagen Holdings, 165 Wash 2d 373 (applies no-duty rule to replacement asbestos parts)
- O'Neil v. Crane Co., 53 Cal 4th 335 (California Supreme Court adopting constrained no-duty approach with limited exceptions)
- May v. Air & Liquid Systems Corp., 446 Md 1 (rejects bare-metal defense where asbestos was integral and replacement foreseeable)