Oregon’s Revised and Expanded Product Liability Statute of Repose

hourglass.1Oregon, like many states, has a statute of repose (“SOR”) that sets a time frame in which product liability lawsuits must be filed. Prior to 2009, ORS 30.905(2), the statute governing Oregon’s SOR, set an 8 year limitation period that started to run when the product was first purchased for use or consumption. The rule was clear: if a lawsuit was not filed 8 years from that date, it was time barred. Simply stated, case closed.

In 2009, the Oregon legislature revisited its SOR. First, the legislature extended the SOR from 8 years to 10 years. Second, and more importantly, the legislature added a “look away” provision which allows a claimant to extend the SOR further if the state where the product was made or imported into has a SOR longer than 10 years.

ORS 30.905(2), as amended in 2010, now reads as follows:

A product liability civil action for personal injury or property damage must be commenced before the later of:

(a) Ten years after the date on which the product was first purchased for use or consumption; or
(b) The expiration of any statute of repose for an equivalent civil action in the state in which the product was manufactured, or, if the product was manufactured in a foreign country, the expiration of any statute of repose for an equivalent civil action in the state into which the product was imported.

Accordingly, if a product in Oregon is more than 10 years old, the “look away” language in subsection (b) above requires that a determination of the SOR for the State in which the product was manufactured or imported into be made in any product liability claim. If the manufacturing/importing state has a SOR longer than 10 years or no SOR at all, the claim in Oregon may not be barred. Interestingly, 5 states have SORs longer than Oregon’s and 32 states do not have product liability SORs at all. A question therefore exists regarding what SOR time period to apply if the state where the product was manufactured does not have a SOR. In this situation, manufacturers argue that if the state where the product was made has no SOR, Oregon’s 10 year SOR applies. Claimants whose product is beyond the 10 year statute argue that if the state where the product was made has no SOR, the time period is indefinite.

In revising ORS 30.905, the Oregon legislature debated the pros and cons of the proposed changes to the SOR extensively. An examination of the debates suggests support for the argument that the legislature did, in fact, contemplate that claimants would benefit from an expanded and/or indefinite SOR if the look away state does not have a product liability SOR. The Legislative News Release that was issued once the bill was passed is telling:

This Senate passed legislation this morning that keeps courtroom doors open for consumers harmed by dangerous products that are greater than 8 years old. SB 284 increases the statute of ultimate repose – age of a defective product – for product liability actions from its current limit of 8 years to 10 years. The bill also includes a “look away” provision to the state of manufacture, giving the injured party the length of time allowed in the state where the product was originated.

Oregon Legislative News Release, 5/26/2009 (underlining added).

As you can see, determining exactly when Oregon’s product liability SOR runs is not as straightforward as it might seem.  This blog will be updated should any further developments occur that provide clarity to exactly how to interpret the “look away” provision.

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