INDEX
PRODUCTS LIABILITY
I. STATUTE OF LIMITATIONS ..................................................................................... 1
Manufacturer’s Products Liability ................................................................................ 1
Breach of Warranty .................................................................................................... 1
Savings Statutes ......................................................................................................... 1
II. PROCEDURAL MATTERS ........................................................................................ 1
Need for Affidavit of Meritorious Claim ....................................................................... 1
Non-Manufacturing Defendant Affidavit ...................................................................... 1
Right to Indemnity Up the Chain of Distribution .......................................................... 1
Right to Contribution Against Tortfeasors and Plaintiff’s Employer ............................. 2
Requirements to be a Proper Plaintiff ......................................................................... 2
Right to Plead Punitive Damages ............................................................................... 2
Theories of Liability Available to Plaintiffs ................................................................... 2
No Cause of Action for Civil Conspiracy ..................................................................... 3
III. PROPER PARTIES AS DEFENDANTS .................................................................... 3
All Parties in Chain of Distribution .............................................................................. 3
Supplier ...................................................................................................................... 3
Commercial Lessors ................................................................................................... 3
Processors, Assemblers, Distributor, Retailer ............................................................ 3
Service Provider ......................................................................................................... 4
Sellers of Used Products ............................................................................................ 4
IV. STATE PRODUCTS LIABILITY LAWS ..................................................................... 4
V. REQUIREMENTS OF STRICT LIABILITY CLAIM ...................................................... 4
Definition of Product .................................................................................................... 4
Selling Requirement .................................................................................................... 4
Physical Harm ............................................................................................................. 4
Defective Product Theories ......................................................................................... 4
Unreasonably Dangerous ............................................................................................ 5
Foreseeability .............................................................................................................. 5
Defenses ..................................................................................................................... 5
VI. DUTY TO WARN ........................................................................................................ 6
Elements of Existence of Duty .................................................................................... 7
Adequacy of Warnings ................................................................................................ 7
Sophisticated User Defense ........................................................................................ 7
Learned Intermediary Doctrine .................................................................................... 8
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VII. DAMAGES ................................................................................................................. 8
Statutory Damage Cap ................................................................................................ 8
Punitive Damages ....................................................................................................... 8
Economic Losses ........................................................................................................ 9
Application of Collateral Source Rule .......................................................................... 9
Attorney’s Fees ........................................................................................................... 9
VIII. WARRANTY ACTIONS ............................................................................................. 9
Statutory Citation ......................................................................................................... 9
Disclaimers .................................................................................................................. 10
IX. SPOLIATION OF EVIDENCE ..................................................................................... 10
Criminal Action ............................................................................................................ 10
Penalties for Spoliation of Evidence ............................................................................ 10
X. TOXIC TORTS ............................................................................................................. 10
Fear of Increased Risk of Disease .............................................................................. 10
Medical Causation ....................................................................................................... 11
Product Identification and Exposure ............................................................................ 11
Case Specific Defenses .............................................................................................. 12
XI. TORT REFORM AND MISCELLANEOUS ................................................................. 12
Asbestos and Silica Claims Issues .............................................................................. 12
Expert Affidavits in Professional Negligence Cases .................................................... 14
Firearm Manufacturers Liability Immunity.................................................................... 15
Food Distributor/Seller Liability Immunity from Obesity Claims ................................... 16
Admissibility of Seat Belt Use in Civil Proceedings ..................................................... 17
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PRODUCTS LIABILITY LAW
I. STATUTE OF LIMITATIONS
1) Manufacturer’s Products Liability - Two (2) years from date of injury or when a
reasonably prudent person acquires sufficient information which, if pursued, would
lead to the true condition of things. A plaintiff is held to have knowledge of facts
that he ought to have discovered in the exercise of reasonable diligence. 76 O.S. §
5.5; Daugherty v. Farmers Co-Op. Ass’n., 1984 OK 72, 689 P.2d 947, 951; and
Huff v. Fibreboard Corp., 836 F.2d 473, 479 (10th Cir. 1987).
2) Breach of Warranty - Five (5) years. 12A O.S. § 2-725.
3) Savings Statute – If any action is commenced within due time, and a judgment
thereon for the plaintiff is reversed, or if the plaintiff fails in such action otherwise
than upon the merits (e.g., voluntary or court ordered dismissal, which is deemed
to be without prejudice unless specifically designated as being with prejudice), or, if
he should die, and the cause of action survive, the plaintiff or his representative
may commence a new action within one (1) year after the reversal or failure
although the time limit for commencing the action shall have expired before the
new action is filed. 12 O.S. § 100.
II. PROCEDURAL MATTERS
Need for Affidavit of Meritorious Claim
None needed.
Non-manufacturing Defendant Affidavit
None needed.
Right to Indemnity up the Chain of Distribution (vendors, etc.)
1) Manufacturer has implied obligation to indemnify its dealer upon a claim for loss
stemming from manufacturer’s liability for harm caused by defective product. The
duty may be implied by operation of law. Braden v. Hendricks, 1985 OK 14, 695
P.2d 1343.
2) In strict liability action, the liability of the manufacturer and distributor is co-
extensive, even though distributor was not responsible for the presence of the
defect. Id. Verdict in favor of a manufacturer absolves a retail dealer of liability
where the alleged defect is said to be attributable solely to the manufacturing
process rather than any conduct on the part of the distributor. Id.
3) Those parties at the end of the distribution chain can sue for indemnity from the
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party or parties above them in the distribution chain. Friend v. Eaton Corp., 1989
OK CIV APP 74, 787 P.2d 474.
4) A manufacturer shall indemnify and hold harmless a seller against loss arising out
of a product liability action, except for any loss caused by seller’s negligence,
intentional misconduct, or other act or omission, such as modifying or altering the
product, for which the seller is independently liable. 12 O.S. §832.1.
Right to Contribution Against Joint Tortfeasors
When two or more persons become jointly and severally liable in tort for the same injury
to persons or property or for the same wrongful death, there is a right of contribution
among them even though judgment has not been recovered against any or all of them.
12 O.S. §832.
Requirements to be a Proper Plaintiff
1) Doctrine of manufacturer’s products liability extends to:
a) Any user or consumer using the product for its intended use. Kirkland v.
General Motors Corp., 1974 OK 52, 521 P.2d 1353; and/or
b) Bystanders who could foreseeably be injured by the product. Moss v. Polyco,
Inc., 1974 OK 53, 522 P.2d 622.
2) No action in product liability for injury only to the product itself resulting in purely
economic loss. Waggoner v. Town & Country Mobile Homes, Inc., 1990 OK 139,
808 P.2d 649.
Right to Plead Punitive Damages
In Oklahoma, “a plaintiff may allege and prove exemplary and punitive damages as an
element of damage in an alleged manufacturers’ product liability case.” Thiry v.
Armstrong World Indus., 1983 OK 28, 661 P.2d 515, 517.
Theories of Liability Available to Plaintiffs
1) Manufacturer’s Products Liability (or strict liability in tort) - Plaintiff must prove:
a) Product was a cause of injury;
b) Defect existed in product at time product left manufacturer’s possession and
control; and
c) Defect made product unreasonably dangerous.
2) Breach of Express Warranty – Governed by UCC 2-318 and 2-714
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3) Breach of “Implied Warranty” – This theory of liability has been merged into
manufacturer’s products liability so as to make it unnecessary in a products liability
action to consider a recovery based on “implied warranty.” O’Neal v. Black &
Decker Mfg. Co., 1974 OK 55, 523 P.2d 614.
No Cause of Action for Civil Conspiracy
To the extent that the plaintiff claims civil damages from the mere existence of a
conspiracy, he may not recover under Oklahoma law. Unless something is actually
done by one or more of the conspirators pursuant to the scheme and in the furtherance
of the object, which acts result in damage, no civil action lies against any one. The gist
of the action is the damage and not the conspiracy; and damage must appear to have
been the natural and proximate consequence of defendant’s act. O’Banion v. Owens-
Corning Fiberglas Corp., 968 F.2d 1011, 1017 (10th Cir. 1992); quoting Nance v.
Menefee, 1925 OK 712, 242 P. 224, 226.
III. PROPER PARTIES AS DEFENDANTS
All Parties in Chain of Distribution
Manufacturer’s products liability doctrine allows plaintiff to sue any or all of parties in
chain of distribution of allegedly defective product. Friend v. Eaton Corp., 1989 OK CIV
APP 74, 787 P.2d 474.
Supplier
A supplier may also be a proper defendant. A supplier is one who injects product into
stream of commerce, whether through sale or other means. Gonser v. Decker, 1991 OK
CIV APP 64, 814 P.2d 1056.
Commercial Lessor
A commercial lessor may be defendant if lessor has placed article into stream of
commerce. Dewberry v. LaFollette, 1979 OK 113, 598 P.2d 241.
Processor, Assembler, Distributor, Retailer and All Similarly Situated Parties
A processor, assembler, distributor, retailer and all other similarly situated parties in
processing and distribution are included in the definition of a “manufacturer.” Kirkland v.
General Motors Corp., 1974 OK 52, 521 P.2d 1353.
Service Provider
Strict tort liability is not extended to a party who is neither a seller nor lessor of the
product, but merely uses and allows its own equipment to be used in providing a
service. Gonser v. Decker, 1991 OK CIV APP 64, 814 P.2d 1056.
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Sellers of Used Products
A commercial seller of a used product is not liable if the seller did not create the alleged
defect and if the product is sold in essentially the same condition as when it was
acquired for resale. Allenburg v. Bentley Hedges Travel Sent Inc., 2001 OK 22, 22 P.3d
223. However, strict liability is extended to commercial sellers of used products who
recondition or make repairs to the product. Id. at 226.
IV. STATE PRODUCTS LIABILITY LAWS
Oklahoma does not have a specific statutory law section on products liability other than
UCC Breach of Warranty laws.
V. REQUIREMENTS OF STRICT LIABILITY CLAIM
Definition of Product
No specific definition in Oklahoma.
Selling Requirement
See Proper Parties As Defendants section above.
Physical Harm
No action lies in a manufacturer products liability for injury only to product itself resulting
in purely economic loss. Waggoner v. Town & Country Mobile Homes, Inc., 1990 OK
139, 808 P.2d 649. However, when there are personal injuries as well as injury to a
product, damages are recoverable under a products liability theory. Dutsch v. Ray
Boats, Inc., 1992 OK 155, 845 P.2d 187.
Defective Product Theories
Alleged product defect may be a design defect or a manufacturing defect, or it may be
the result of inadequate warnings regarding the use of the product. Holt v. Deere & Co.,
24 F.3d 1289 (10th Cir. 1994).
Unreasonably Dangerous
Unreasonably dangerous means dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the ordinary knowledge
common to the community as to its characteristics. Hurd v. American Hoist and Derrick
Co., 734 F.2d 495 (10th Cir. 1984).
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Foreseeability
Products liability only extends to persons who are ordinary consumers of the product or
a foreseeable purchaser or user of the product. Also, a manufacturer has no duty to
warn of dangers that may occur from the use of the product when it is not known or
could not be known that such hazards exist. Rohrbaugh v. Owens-Corning Fiberglass
Corp., 965 F.2d 844, 846 (10th Cir. 1992).
Defenses
1) Assumption of Risk - Voluntary assumption of a known risk is a complete
defense to strict product liability. Plaintiff can assume risk without specific or
technical knowledge of cause of defective condition, but must be subjectively
aware and appreciate specific dangers. Holt v. Deere & Co., 24 F.3d 1289 (10th
Cir. 1994).
2) Abnormal Use or Misuse
a) Abnormal use or misuse of product is an affirmative defense to a products
liability claim and occurs where claimant’s use of the product was not that
which product manufacturer intended or could reasonably forsee. Treadway
v. Uniroyal Tire Co., 1988 OK 37, 766 P.2d 938.
b) There is a distinction between “use for an abnormal purpose” or misuse and
use “for a proper purpose but in a careless manner.” Use for a proper
purpose but in a careless manner is considered contributory negligence and
is not a defense to a products liability claim. Cummings v. General Motors
Corp., 365 F.3d 944, 952 (10th Cir. 2004).
3) Alteration - An essential element of a products liability case is proof that defect
existed at time product left vendor’s possession and control. Lapse of time and use
by the consumer tend to establish that defect was not present at time of sale.
Hawkins v. Larrance Tank Corp.,1976 OK CIV APP 2, 555 P.2d 91.
4) Lapse of Time/Extended Use and State of Art - Lapse of time/extended use and
“state of art” are not absolute defenses but may be relevant and/or persuasive
evidence. Smith v. Minster Mach. Co., 669 F.2d 628 (10th Cir. 1982).
5) State of the Art
a) State of the art means the custom and practice in an industry. Compliance
with such standard does not constitute an absolute defense. Smith v. Minster
Mach. Co., 669 F.2d 628 (10th Cir. 1982).
b) State of the art may be considered relevant to whether the manufacturer is or
should be aware of various dangers and whether the product was dangerous
beyond the expectation of the ordinary consumer. Id.
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c) Compliance with state of the art does not excuse manufacturer from liability or
the duty to warn if product is otherwise unreasonably dangerous. O’Banion v.
Owens-Coming Fiberglass Corp., 968 F.2d 1011 (10th Cir. 1992).
6) Unavoidably Unsafe Product - The defense of unavoidably unsafe applies when
the following criteria are met: 1) the product is properly manufactured and contains
adequate warnings, 2) its benefits justify its risks, 3) the product was at the time of
its manufacture incapable of being made more safe. Tansy v. Dacomed Corp.,
1994 OK 146, 890 P.2d 881.
7) Contributory and Comparative Negligence
a) Contributory and comparative negligence are not defenses to strict tort
liability. McMurray v. Deere and Co., Inc., 858 F.2d 1436 (10th Cir. 1988).
b) Negligence of user of defective product will not bar recovery. McMurray v.
Deere and Co., Inc., 858 F.2d 1436 (10th Cir. 1988).
8) Manufacturer Liability Immunity for Inherently Unsafe Products Known to be
Unsafe
a) In a product liability action, a manufacturer or seller is not liable if the product is
inherently unsafe, and known by the ordinary consumer who consumes the
product to be unsafe. 76 O.S. §57(A).
b) The claim that the product is inherently unsafe is an affirmative defense. In
order for the affirmative defense to apply, all of the following are to be shown:
a) the product was a common consumer product intended for personal
consumption; b) the product’s utility outweighs the risk created by its use; c)
the product’s risk was known by the ordinary consumer who consumes the
product with the ordinary knowledge common to the community; d) the product
was properly prepared/reached the consumer without substantial change in
condition; and e) adequate warnings surrounding the risk of the product were
given by the manufacturer/seller. 76 O.S. §57(B)(1)-(5).
c) With regard to manufacturer liability immunity for inherently unsafe products
known to be unsafe, the term “product liability action” does not encompass
manufacturing defect or breach of warranty. 76 O.S. §57(C).
VI. DUTY TO WARN
Failure to properly warn may render product unreasonably dangerous when
manufacturer knows or should know that hazards exist. Rohrbaugh v. Celotex Corp., 53
F.3d 1181 (10th Cir. 1995).
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Elements of Existence of Duty
1) Manufacturer’s duty to warn consumers of potential hazards extends only to
ordinary consumers and users of product and those who would foreseeably be
expected to purchase or use the product. Rohrbaugh v. Owens-Coming Fiberglas
Corp., 965 F.2d 844 (10th Cir.1992).
2) Manufacturer not required to disclose dangerous propensities of product if dangers
are open and obvious. Grover v. Superior Welding, Inc., 1995 OK 14, 893 P.2d
500.
3) Supplier has duty to warn if:
a) Knows chattel is dangerous;
b) Has no reason to believe those who will use chattel will realize its dangerous
condition; and
c) Fails to exercise reasonable care to inform them of its dangerous condition.
Duane v. Oklahoma Gas & Elec. Co., 1992 OK 97, 833 P.2d 284.
Adequacy of Warnings
Adequacy of warning is a question for the jury. Kams v. Emerson Electric Co., 817 F.2d
1452, 1452 (10th Cir.1987).
Sophisticated User Defense
There is no duty to warn of a product-connected danger that is obvious or generally
well-known, and there is no duty to warn knowledgeable users of a product of dangers
associated with the product. Duane v. Oklahoma Gas & Elec. Co., 1992 OK 17, 833
P.2d at 286.
Learned Intermediary Doctrine
1) Mainly applicable in prescription drug cases and prosthetic implant cases.
Operates as an exception to the manufacturer’s duty to warn the ultimate
consumer and shields manufacturers of prescription drugs from liability if the
manufacturer adequately warns prescribing physicians of the dangers of the drug.
Edwards v. Basel Pharmaceuticals, 1997 OK 22, 933 P.2d 298.
2) There are two situations when the Learned Intermediary Doctrine does not apply.
a) The first exception applies to mass immunizations because the patient may
not receive individualized attention from medical personnel when receiving
the immunization.
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b) The second exception applies when the FDA mandates that a warning be
given directly to the consumer. Id.
VII. DAMAGES
Statutory Damage Caps
1) Economic Damages: There is no cap on economic damages such as lost wages,
lost earning potential, past and future medical bills, etc.
2) Non –Economic Damages: Pursuant to 23 O.S. §61.2 there is a $400,000.00 cap
on non-economic damages awarded to plaintiffs in bodily injury cases, regardless
of the number of defendants. These types of damages include loss of
companionship, mental anguish, pain and suffering, and other intangible damages.
The cap only applies to bodily injury cases. The cap does not apply to wrongful
death cases.
The cap may be lifted if the trier of fact finds by a preponderance of the evidence
that:
a) The Plaintiff suffered permanent and substantial physical injury; or
b) The defendant’s acts or omissions were
i. In reckless disregard for the rights of others,
ii. Grossly negligent,
iii. Fraudulent, or
iv. Intentional or with Malice.
Punitive Damages
1) In an action for the breach of an obligation not arising from contract, the jury may
award punitive damages for the sake of example and by way of punishing the
defendant based upon the following factors:
a) Seriousness of the hazard to the public arising from the defendant’s
misconduct;
b) Profitability of the misconduct to defendant;
c) Duration of misconduct and any concealment of it;
d) Degree of defendant’s awareness of the hazard and its excessiveness;
e) Attitude and conduct of the defendant upon discovery of the misconduct or
hazard; and/or
f) Financial condition of the defendant.
2) To award punitive damages, the jury must find by clear and convincing evidence
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that the defendant has been guilty of reckless disregard for the rights of others or
has acted intentionally and with malice towards others. 23 O.S. § 9.1.
Economic Losses
No action lies in manufacturer’s products liability for injury only to product itself resulting
in purely economic loss. Waggoner v. Town & Country Mobile Homes, Inc., 1990 OK
139, 808 P.2d 649.
Application of Collateral Source Rule
Defendant cannot take credit for payments made by collateral sources, Weatherly v.
Flournoy, 1996 OK CIV APP 109, 929 P.2d 296, 298.
Attorney’s Fees
Reasonable attorney’s fees are recoverable as a part of damages by an indemnitee so
long as the fees were incurred in defense of the claim indemnified against. However,
indemnification of attorney’s fees is not permissible where an adverse position has been
taken by the claimant against the party from whom indemnity is sought. Booker v. Sears
and Roebuck & Co., 1989 OK 156, 785 P.2d 297.
VIII. WARRANTY ACTIONS
1) Breach of Implied Warranty is no longer an appropriate remedy for recovery in
products liability actions except as provided in the Uniform Commercial Code.
Kirkland v. General Motors Corp., 1974 OK 52, 521 P.2d 1353.
2) Recovery under doctrine of manufacturers’ product liability is independent of UCC
warranty provisions. Recovery under warranty provisions is applicable to losses
flowing from sales contract.
3) As to personal injury or injury to other property, manufacturer’s products liability
and the UCC warranty provisions provide parallel remedies. Waggoner v. Town &
Country Mobile Homes, Inc., 1990 OK 139, 808 P.2d 649.
Statutory Citation
1) UCC 2-318 - Warranty extends to a buyer’s family, household and guests.
2) UCC 2-714 - Damages recoverable in a warranty action:
a) Difference between value of goods accepted and their value had they been
as warranted.
b) Any incidental and consequential damages (including injury to person or
property resulting from breach of warranty).
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Disclaimers
1) A disclaimer of warranties is a means of controlling the liability of the seller by
reducing the number of situations in which a seller can be in breach of contract.
Collins Radio Co. of Dallas v. Bell, 1980 OK CIV APP 57, 623 P.2d 1039.
2) UCC 2-316: Disclaimer must contain the terms merchantability and fitness. An
effective disclaimer of a warranty of merchantability may be written or oral. If it is in
writing, the writing must be conspicuous. An effective disclaimer of a warranty of
fitness must always be both in writing and conspicuous.
IX. SPOLIATION OF EVIDENCE
Criminal Action
Willful spoliation of evidence is a misdemeanor. 21 O.S. §454.
Penalities for Spoliation of Evidence
1) Failure of a litigant to produce decisive evidence that is within his power to produce
authorizes a presumption that the evidence, if produced, would have been
unfavorable to the litigant. Loyal Protective Ins. Co. v. Shoemaker, 1036 OK 491,
63 P.2d 960.
2) When a party’s expert or attorney conducts an examination of evidence that they
could reasonably foresee to be destructive and intentionally or negligently destroys
evidence, the court is empowered to either dismiss the suit or otherwise ameliorate
the ill-gotten advantage. Waddle v. Hawley, 1998 OK 53, 967 P.2d 1180.
X. TOXIC TORTS
Fear of Increased Risk of Disease
1) The U.S. Supreme Court recognizes 2 categories of claimants:
a) Those whose emotional distress from fear of increased risk of disease is
unaccompanied by any physical injury, for which recovery is limited by the
common-law zone-of-danger test; and
b) Those whose fear is brought on by a physical injury. Claimants in the second
category are allowed to seek compensation for the fear of an increased risk of
disease. Norfolk & Western Ry. Co. v. Ayers, 538 U.S. 135, 136 (2003).
2) Claimant seeking compensation for fear of increased risk of disease that
accompanies a physical injury has the burden of proving alleged fear is genuine
and serious. Id. at 137.
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3) Under Oklahoma law, damages which are purely speculative are nonrecoverable.
O’Banion v. Owens-Corning Fiberglass Corp., 968 F.2d 1011, 1013 (10th Cir.
1992).
Medical Causation
1) Plaintiff needs expert testimony to establish medical causation of injury “where
injuries are of a character requiring skilled and professional person to determine
cause/extent thereof.” Williams v. Safeway Stores, Inc., 1973 OK 119, 515 P.2d
223, 227.
2) Evidence of risk of developing disease from Defendant’s product is only admissible
when “a reasonable degree of medical certainty” exists that the plaintiff will develop
the disease. O’Banion, 968 F.2d 1011, 1013 (citing Lohrmann v. Pittsburgh
Corning Corp., 782 F.2d 1156, 1160 (4th Cir. 1986)).
3) A reasonable degree of medical certainty exists when there is more evidence in
favor of a proposition than against it; a greater than 50% chance that a future
consequence will occur. Lohrmann, 782 F.2d at 1160.
4) A plaintiff in asbestos-related products liability litigation may not rely on any form of
collective liability as a theory for relief where the plaintiff is unable to identify
specific tort-feasors. Case v. Fibreboard Corp., 1987 OK 79, 743 P.2d 1062.
Product Identification and Exposure
1) A plaintiff must “prove that the product was the cause of the injury; the mere
possibility that it might have caused the injury is not enough.” Kirkland v. General
Motors Corp., 1974 OK 52, 521 P.2d 1353.
2) A plaintiff may not rely on any form of collective liability (e.g., market share) as a
theory for relief where the plaintiff is unable to identify specific tortfeasors. Case v.
Fiberboard Corp., 1987 OK 79, 743 P.2d 1062.
3) The plaintiff bears the burden of establishing a causative link between the plaintiff’s
injuries and the specific tortuous acts of the defendant. Id., at 1067; Dillon v.
Fibreboard Corp., 753 F.Supp. 898, 900 (W.D. Okla. 1988), rev’d on other
grounds, 919 F.2d 1488 (10th Cir. 1990).
4) The plaintiff must establish that there is a significant probability that the
defendant’s acts were related to plaintiff’s injury. To establish a reasonable
inference of the significant probability of a causative link between the plaintiff’s
injuries and the manufacturers’ products, there must be evidence of exposure to a
specific product on a regular basis over some extended period of time in proximity
to where the plaintiff actually worked. Dillon, 753 F.Supp. at 900; According to
Lohrman, the plaintiff must “prove that the product was the cause of the injury; the
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mere possibility that it might have caused the injury is not enough.” Lohrman v.
Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986).
Case Specific Defenses
Amosite/Chrysotile Defense: If a plaintiff’s exposure to amosite and chrysotile asbestos
fibers occurred prior to 1969, the defendant had no duty to warn plaintiff of the dangers
associated with such fibers because it was unknown that they could cause disease or
injury. Rohrbaugh, 965 F.2d 844.
XI. TORT REFORM AND MISCELLANEOUS
Asbestos and Silica Claims Issues
1) The purpose of the Asbestos and Silica Claims Priorities Act is twofold: (1) to give
priority to asbestos and silica claimants with clear physical impairment due to
asbestos and silica exposure; and (2) to preserve the legal rights of claimants who
have been exposed to asbestos and silica, but cannot demonstrate physical
impairment, until such time the claimants can demonstrate such impairment. 76
O.S. §61(B)(1)-(2).
2) 76 O.S. §62 is the definitional section of the Asbestos and Silica Claims Priorities
Act.
3) Pulmonary function testing is to be interpreted by a physician who is both (1)
licensed to practice by a state of the United States, and (2) board certified in
pulmonary medicine, occupational medicine, internal medicine, oncology, or
pathology at the time of issuing the relevant medical report. 76 O.S. §63.
4) In bringing an asbestos claim, a prima facie showing of asbestos-related
malignancy or impairment is required. 76 O.S. §64(A).
a) To carry his or her burden regarding a showing of asbestos-related
malignancy, plaintiff must show:
1) he or she has been diagnosed with mesothelioma or other asbestos-
related malignancy;
2) exposure to asbestos was the proximate cause of the diagnosed
mesothelioma or other asbestos-related malignancy, accompanied by
conclusion that the exposed person’s medical problems were not likely
the result of other causes;
3) and for asbestos-related malignancies other than mesothelioma, the
exposed person has an underlying non-malignant asbestos-related
condition, and at minimum 15 years have elapsed between first
exposure and diagnosis of the malignancy. 76 O.S. §64(A)(1).
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b) To carry its burden regarding a showing of a nonmalignant asbestos-related
condition, plaintiff must provide:
1) a report by a board-certified physician that the plaintiff has been
diagnosed with a nonmalignant asbestos-related condition, and
2) confirms the physician: (a) either performed a physical exam of the
exposed person, or reviewed medical records of the person is said
person is deceased; (b) took an occupational and exposure history of the
person; (c) took a medical and smoking history, including a review of the
person’s significant past and present medical problems relevant to the
exposed person’s disease;
3) The report must set out things such as the exposed person’s medical
and occupational history, and confirm that a minimum of 15 years
elapsed between first exposure and diagnosis of the condition. Certain
other minimal things must be demonstrated by the report. 76 O.S.
§64(A)(2).
5) In bringing a silica claim, a prima facie showing of impairment as demonstrated by
medical report must be met by plaintiff. 76 O.S. §65.
a) If the plaintiff is alleging silicosis, the medical report must set out certain things,
as regulated by 76 O.S. §65(B)-(D).
b) If the plaintiff is alleging any other silica-related impairment, the medical report
must set out certain things, as regulated by 76 O.S. §65(E).
6) The person bringing the claim must serve the medical report on each defendant
who answers or appears; a minimum of 90 days must pass after the report has
been served on the defendants, and before the case is allowed to proceed to trial.
76 O.S. §66.
7) Defendant is allowed to file a Notice of Appearance in lieu of an Answer to the
Complaint if plaintiff provides inadequate prima facie evidence. If plaintiff then
provides enough evidence to make a prima facie case, the trial may proceed, but
the trial may not proceed until plaintiff has done so. If the plaintiff is bringing suit
for mesothelioma, the plaintiff may request an expedited trial. The trial court has
discretion to grant this request, but a minimum of 120 days must pass after
granting of the motion, and a minimum of 6 months must pass between the initial
filing and the trial date. 76 O.S. §67.
8) Entities that offer health benefit plans may not, in any way whatsoever, penalize a
plaintiff that meets his or her prima facie showing by rejecting, denying, limiting,
canceling, refusing to renew, increasing premiums, or otherwise. 76 O.S. §69.
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9) The statute of limitations does not begin to run until the exposed person discovers
or should have discovered that the exposed person is physically impaired;
asbestos or silica claims that arise out of a nonmalignant condition are treated
differently from claims dealing with cancer. Bringing a claim alleging a
nonmalignant condition does not affect ability to later bring a separate claim arising
out of asbestos or silica-related cancer. 76 O.S. §70.
10) The Act applies to all claims filed on or after November 1, 2009. Further, it applies
to previously-filed claims that have not gone to trial (excluding instances where
retroactive application would be unconstitutional). 76 O.S. §71.
11) 76 O.S. §73 is the definitional section of the Innocent Successor Asbestos-Related
Liability Fairness Act.
12) 76 O.S. §69 applies to any innocent successor corporation, as defined in 76 O.S.
§73. The §69 limitations do not apply to worker’s compensation benefits paid
under the Worker’s Compensation Act or comparable workers’ compensation law,
any claim against a corporation that does not constitute a successor asbestos-
related liability, or any obligations under the National Labor Relations Act. 76 O.S.
74.
13) The cumulative successor asbestos-related liability of the innocent successor
corporation is strictly limited to the fair market value of the total gross assets of the
transferor, to be determined at the time of merger or consolidation. The liability is
limited to the fair market value of the total assets of a prior transfer if the present
transferor was involved in a previous merger or consolidation. 76 O.S. §75.
14) 76 O.S. §76 deals with how to determine the fair market value of the gross assets
of a transferor. This value is increased annually at a rate of the current prime rate
plus 1%. 76 O.S. §77.
15) Nothing in the Act limits liability of transferors, except to extent the transferor
becomes a successor. The Innocent Successor Asbestos-Related Liability
Fairness Act applies to claims filed on or after November 1, 2009, or against any
innocent successor in which a claim was filed before the effective date, but the
case has not yet proceeded to trial. 76 O.S. §78.
Expert Affidavits in Professional Negligence Cases
1) In any professional negligence claim, plaintiff must attach to petition an affidavit,
which states:
a) plaintiff has consulted/reviewed facts with a qualified expert;
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b) the qualified expert has given a written opinion (which must include things set
forth in 12 O.S. §19(A)(3)) to plaintiff stating that the allegations against defendant
constituted professional negligence;
c) based upon the consultation with the expert, plaintiff has concluded his or her
claim is justified and based on good cause. 12 O.S. §19(A)(1).
2) If the professional negligence action is filed without such affidavit attached, and the
court does not grant a time extension to plaintiff, the action must be dismissed by
the court without prejudice upon motion by defendant. 12 O.S. §19(A)(2).
3) The qualified expert’s written opinion is not admissible at trial for any purpose.
Further, no inquiry is permitted regarding the written opinion either at discovery or
trial. 12 O.S. §19(A)(3).
4) If the plaintiff fails to attach the affidavit required by 12 O.S. §19(A), the court may,
for good cause shown, grant plaintiff a time extension, not exceeding 90 days after
the filing (again, unless good cause is shown for a longer extension), in order for
plaintiff to include in the filing the affidavit regarding the written opinion from the
qualified expert. 12 O.S. §19(B). If plaintiff fails to file the affidavit within the time
extension, then unless good cause for this failure is once again shown, upon
defendant’s motion, the court must dismiss the action without prejudice. If good
cause is shown by plaintiff for the subsequent failure, the court may grant another
time extension to plaintiff, not exceeding 60 days. 12 O.S. §19(B)(2).
5) Upon defendant’s written request to plaintiff in such an action, within 10 business
days of receipt, plaintiff must provide defendant with a copy of the written opinion
of the qualified expert, and give authorization to defendant for release of any and
all medical records for the previous 5 years prior to the incident at issue. 12 O.S.
§19(C).
6) If plaintiff does not comply with defendant’s written request, unless good cause is
shown by plaintiff, then upon defendant’s motion, the court must dismiss the action
without prejudice. 12 O.S. §19(C)(2).
Firearm Manufacturers Liability Immunity
1) Unlawful firearm use, and not their manufacture, distribution, or sale, is the
proximate cause of any injury resulting from a firearm’s unlawful use. 76 O.S. §51.
As the result of this finding, no firearm manufacturer, distributor or seller, who
lawfully manufactures, distributes, or sells a firearm is liable to any person or entity,
or to the estate, successors, or survivors of either, for any injury suffered, including
wrongful death and property damage, because of use of such firearm by another.
76 O.S. §52.
2) No association of lawfully licensed seller or manufacturer is liable to any person,
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entity, or estate or successors or survivors of either, for any injury suffered,
including wrongful death and property damage, because of the use of a firearm
sold or manufactured by a licensee who is a member of such an association. 76
O.S. §53.
3) Exceptions to the statement set out in 76 O.S. §51 include: (1) actions for deceit,
breach of contract, or express or implied warranties, or for injuries resulting from
failure of firearms to operate in a normal or usual manner due to defects or
negligence in design or manufacture.; (2) actions arising from the unlawful sale or
transfer of firearms, or situations which the transferor knew/should have known the
recipient would subsequently either unlawfully sell or transfer the firearm, or use
the firearm/allow its use in an unlawful, negligent, or improper way. A firearm’s
potential to cause injury, damage, or death as the result of normal function does
not constitute a defective condition of the product. A firearm is not defective due to
its ability to cause injury, damage, or death when discharged. 76 O.S. §54.
Food Distributor/Seller Liability Immunity from Obesity Claims
1) The Common Sense Consumption Act is designed to prevent frivolous claims
against manufacturers, distributors, carriers, holders, sellers, marketers or
advertisers of food products that comply with the applicable statutory/regulatory
requirements. 76 O.S. §34.
2) Terms of the Act are defined in 76 O.S. §35.
3) Manufacturers, packers, distributors, carriers, marketers, and advertisers, or
associations of one or more of these entities, are exempt from civil liability for any
claim arising out of weight gain or obesity, or a condition resulting from weight gain
or obesity. 76 O.S. §36. However, if the claim of weight gain, obesity, or condition
resulting from weight gain or obesity is based upon:
a) a material violation of an adulteration or misbranding requirement, as set out in
state or federal statute, and the claim was proximately caused by such
violation;
b) or any other knowing and willful violation applicable to any of the named
entities, where the claim was proximately caused by such violation. 76 O.S.
§36(B)(1)-(2).
4) The complaint in any action arising under 76 O.S. §36(B)(1) must state with
particularity: (1) the statute, regulation or other law of Oklahoma or federal law that
was allegedly violated; (2) the facts that are alleged to constitute a violation of the
applicable law; (3) and the facts that show that the violation proximately caused
injury to plaintiff. 76 O.S. §36(C).
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5) The complaint in any action arising under 76 O.S. §36(B)(2) must state with
particularity all of the above, along with facts that give rise to a reasonable
inference that the violation was with intent to deceive or injure consumers, or was
carried out with actual knowledge that the violation would injure consumers. 76
O.S. §36(C).
6) In any action arising under 76 O.S. §36(B), all discovery and other proceedings are
to be stayed while any motion to dismiss is pending, unless particularized
discovery is necessary to preserve evidence/prevent undue injustice to that party.
During the pendency of any stay of discovery, unless otherwise ordered by the
court, any party to an action with actual notice of the allegations contained in the
complaint shall treat all documents, data compilations, including electronically
recorded or stored data, and tangible objects that are possessed by such party and
that are relevant to the allegations, as if they were subject to a continuing request
for production of documents from an opposing party under 12 O.S. §3234. 76 O.S.
§36(D).
7) The Common Sense Consumption Act applies to all claims pending on, or filed
after, November 1, 2009. 76 O.S. §36(E).
Admissibility of Seat Belt Use in Civil Proceedings
1) Violation of 47 O.S. §11-1112, i.e. failure to use a proper child passenger restraint
system or seat belt while transporting a child, is admissible in any civil action or
proceeding for damages, unless the plaintiff in the action or proceeding is under 16
years of age. 47 O.S. §11-1112(E). Further, in any action brought by/on behalf of
an infant for wrongful death or personal injury, in an auto collision, the failure to
have the infant properly restrained during the collision is not allowed to be used in
the aggravation or mitigation of damages. Id.
2) 47 O.S. §§12-416-420 may be used in any civil proceeding, and the use or nonuse
of seat belts shall be submitted into evidence in any civil suit in Oklahoma unless
the plaintiff in the suit is under 16 years old. 47 O.S. §12-420.
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