Between the Sheets by OTLA Guardians Nadia Dahab, Cody Hoesly and Elizabeth Savage DECISIONS OF THE OREGON SUPREME COURT Oregon law establishes a presumption against parties using a contract to waive tort liability. Any waiver of tort liability in a contract must be clear and explicit. Certain Underwriters at Lloyd’s London v. TNA NA Manufacturing, Inc., 372 Or 64 (2024), Bronson, J. The plaintiff was represented by Sara Kobak. The plaintiffs are insurers of a plant-based food company. In 2012, the company entered into a contract to purchase certain manufacturing equipment from the defendants. Four year later, the food company experienced a listeria outbreak resulting in approximately $20 million in damages. The plaintiffs thereafter sued the defendants for negligence and product liability. The defendants moved for summary judgment, arguing that four provisions of the purchase contract, when read together, constituted a waiver of tort liability and therefore barred the plaintiffs’ action. The trial court granted the defendants’ motion and the Court of Appeals affirmed. The Oregon Supreme Court affirmed in part and reversed in part, holding that, to waive tort liability, contract language must be clear and explicit, and waiver cannot be deduced solely from inference or implication. The court explained that generic text that purports to waive all liability will typically be insufficiently specific to overcome the presumption against the waiver of tort liability. In this case, the Supreme Court concluded contract language that did not plainly, directly and unequivocally speak to liability outside of liability arising under the contract was not sufficient to constitute a waiver. A hospital that supplies and administers a drug in conjunction with providing health care services may be a “seller” that is “engaged in the business of selling” under Oregon’s products liability law. Brown v. GlaxoSmithKline, LLC, 372 Or 255 (2024), Flynn, C.J. The plaintiff was represented by Travis Eiva. Kristi Gifford filed a brief on behalf of OTLA. The plaintiffs brought a strict products liability claim under ORS 30.920(1) against the defendant Providence Health System-Oregon, alleging their child had suffered irreparable heart defects as a result of in utero exposure to the drug Zofran, which was administered by a Providence nurse. Providence moved for summary judgment, arguing that it could not be liable under ORS 30.920(1) because, under the statute, a “seller” “engaged in the business of selling” does not include hospitals that supply products when providing healthcare services. The trial court agreed and granted Providence’s motion. The plaintiffs appealed and the Court of Appeals reversed. NADIA DAHAB specializes in appeals, civil rights, and general civil and class action litigation. She contributes to OTLA Guardians at the Guardians Club level. Dahab is a shareholder at Sugerman Dahab, 101 SW Main St., Ste. 910, Portland, OR 97204. She can be reached at nadia@sugermandahab.com or 503-228-6474. CODY HOESLY specializes in appeals, financial fraud and commercial cases. He contributes to OTLA Guardians at the Guardians Club level. Hoesly is a shareholder at Barg Singer Hoesly PC, 121 SW Morrison St., Ste. 600, Portland, OR 97204. He can be reached at 503-241-8521 or choesly@bargsinger.com. ELIZABETH SAVAGE specializes in appeals, personal injury and family law. She is co-chair of the OTLA Amicus Committee. Savage operates Elizabeth Savage Law, 7805 SW 40th Ave., #80278, Portland, OR, 97219. She can be reached at 971-430-4030 or elizabeth@savage-attorney.com. 52 Trial Lawyer | Summer 2024
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