We’ve seen Griffith v. Blatt, 51 P.3d 1256 (Or. 2002), cited – and not just by plaintiffs – for broad propositions, like Oregon abolished the learned intermediary rule in strict liability cases, or that strict liability, generally, is strait-jacketed by legislative adoption of Restatement (Second) of Torts §402A (1965) and its comments.
We don’t think that’s so.
First, let’s start with the Oregon product liability statute that the Oregon Supreme Court applied in Griffith. There is, indeed, a provision that does exactly what Griffith held – Or. Rev. Stat. §30.920. This section of the product liability statute provides:
(1) One who sells or leases any product in a defective condition unreasonably dangerous to the user or consumer or to the property of the user or consumer is subject to liability for physical harm or damage to property caused by that condition, if:
(a) The seller or lessor is engaged in the business of selling or leasing such a product; and
(b) The product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold or leased.
(2) The rule stated in subsection (1) of this section shall apply, even though:
(a) The seller or lessor has exercised all possible care in the preparation and sale or lease of the product; and
(b) The user, consumer or injured party has not purchased or leased the product from or entered into any contractual relations with the seller or lessor.
(3) It is the intent of the Legislative Assembly that the rule stated in subsections (1) and (2) of this section shall be construed in accordance with the Restatement (Second) of Torts sec. 402A, Comments a to m (1965). All references in these comments to sale, sell, selling or seller shall be construed to include lease, leases, leasing and lessor.
(4) Nothing in this section shall be construed to limit the rights and liabilities of sellers and lessors under principles of common law negligence or under ORS chapter 72.
In addressing the learned intermediary rule, the Griffith court interpreted Section 30.920(3) strictly to apply only §402A and its comments – which do not reference (they date from 1965) the learned intermediary rule:
Pursuant to ORS 30.920(3), we must construe ORS 30.920(1) and (2) “in accordance with” the cited comments to Restatement (Second) of Torts §402A. . . . , [which] indicate that a seller of a drug may be required to give an adequate warning of the product’s danger to a consumer when the seller has knowledge or should have knowledge of the danger. . . . It is sufficient for present purposes to conclude that, contrary to Stout’s argument, Oregon’s product liability statute does not create a defense to strict liability based on the learned intermediary doctrine.
51 P.3d at 1262.
Some of our more long-term (and sharp-eyed) readers might notice something unusual about this last quote. Normally, we don’t leave party names in quotations. But that’s critical here. Who are the defendants?
Rugby manufactured the lotion and Stout, a pharmacist, filled the prescription.
Id. at 1258 (emphasis added). The actual manufacturer was dismissed on the statute of limitations, and that dismissal was affirmed in Griffith. Id. at 1261. Thus, the pharmacist, Stout, was the only defendant left in the case.
That’s critical, because the statute distinguishes throughout between four classes of entities in the chain of sale of a product – the “manufacturer,” “distributor,” “seller,” and “lessor” of the product at issue. See Or. Rev. Stat. §§30.900, 30.902; 30.905(5); 30.907(3)(b); 30.908(4-5); 30.910, 30.915(1,3); 30.927(1,3).
Now look back at the language of §30.920, the provision construed in Griffith. It is entitled “Liability of seller or lessor of product.” Neither the title, nor the body of this section is in any way applicable to the “manufacturer” of a product.
This is the key to the widely misunderstood Griffith decision. The only defendant at issue in Griffith was a pharmacist – a non-manufacturing seller of a prescription drug. Likewise, the statutory section construed in Griffith is applicable solely to product “sellers” or “lessors” – and by its terms is not applicable to manufacturers.
Griffith’s recognition of a §402A strait-jacket forbidding the adoption of the learned intermediary rule thus only applies to strict liability cases brought against pharmacists (sellers) and should not displace the learned intermediary rule in cases involving manufacturers – to which §30.920 expressly does not apply – where the rule is well-established under Oregon law. See Oksenholt v. Lederle Laboratories, 656 P.2d 293, 296-97 (Or. 1982); Vaughn v. G.D. Searle & Co., 536 P.2d 1247, 1247-48 (Or. 1975); McEwen v. Ortho Pharmaceutical Corp., 528 P.2d 522, 528 (Or. 1974).
So manufacturing defendants in cases under Oregon law should be careful not to fall for overly expansive arguments based on Griffith. There is no statutory §402A strait-jacket in cases involving manufacturers (as opposed to “sellers” or “lessors”), whether involving the learned intermediary rule or anything else. Any decision or commentary to the contrary is ignoring the manner in which the Oregon legislature structured its product liability statute. It expressly adopted §402A and its comments only to define the liability of product sellers and lessors – not manufacturers.