Beginning on May 1st, Joel Leonard will join EOP. Mr. Leonard represents clients in court in commercial, construction, trade secrets and insurance matters. He also negotiates contracts for doctors, counsels health care providers, and when needed, represents them in litigation. Mr. Leonard has substantial experience litigating products liability and insurance coverage disputes.

Mr. Leonard's focus on appellate advocacy began early in his career when he served as law clerk to the Hon. Nathan Heffernan, Chief Justice of the Wisconsin Supreme Court. He later practiced as a trial lawyer in both Wisconsin and Massachusetts. Before joining the Oregon and Washington bars, Mr. Leonard and his wife spent a year and a half running a mission hospital in Kenya, and he continues to maintain an interest in Africa. Mr. Leonard is a graduate of Harvard College, qualified for a Postgraduate Diploma in Law from the University of Dar Es Salaam and earned his J.D. and was elected Order of the Coif at the University of Wisconsin Law School.

Published Articles & Books

• "Advocate Beware: Oregon Products Claims," Construction, Newsletter - Fourth Quarter 2003
• "Physician Noncompetes: Still Necessary and Useful?" Oregon Health Law, Newsletter - Spring 2003. OSB version
• Forthcoming: "Judgments," Federal Civil Litigation in Oregon, OSB-CLE.

Advocate Beware: Oregon Products Claims

December 12, 2003

Joel P. Leonard- Portland

Construction defect cases often include claims that defective products were involved, and that the defects in the products caused or contributed to the damages in the affected structure. In most states, products liability claims of this type are actionable so long as they are brought within a reasonable amount of time. The maximum amount of time to bring suit on a products liability claim is typically measured from the discovery of the defect or resulting damage.^[1] If the case is in Oregon, however, special attention may be required because such claims are controlled by a statute of limitations that runs for two years from the date on which the damage occurred, without regard to discovery.^[2]

For example, suppose a building in Oregon that is clad with synthetic stucco (EIFS) is suffering water intrusion. If the building owners wish to bring a claim against the EIFS manufacturer, that claim will need to be squared with the decision of the Oregon Supreme Court in Gladhart v. Oregon Vineyard Supply Company.^[3] The Gladhart opinion states that there is no discovery rule in Oregon’s products liability statute of limitations.^[4] Thus, the owner of this hypothetical EIFS-clad building would need to commence an action against the EIFS manufacturer within two years after the damage occurred — regardless of whether the damage or defect had actually been discovered — or face finding this claim time-barred.^[5]

Clever lawyers might attempt to extend the time frame in which a products liability suit may be brought by alternatively pleading a products liability claim as a claim for negligence. However, under Oregon law, this will likely be an unsuccessful means of avoiding the products liability statute of limitations.^[6] A more effective strategy may be for a third party to bring the products liability claim as a claim for indemnity or contribution, and argue that those actions are controlled by a lengthier statute of limitations that runs from the date of payout by a third party.^[7] The theory of contribution or indemnity, and a consequently longer limitations period, fits best in a products liability case where an innocent party in the product supply chain has been sued in a timely manner. However, that is not necessarily how claims for indemnity and contribution arise against manufacturers in construction defect cases. In construction defect cases, the parties asserting such claims are typically actively involved in designing around, modifying or installing the allegedly defective building product. Furthermore, the third party plaintiffs are frequently sued on other causes of action and are not joined within the brief window of time for products liability actions. Thus, in cases such as these, there is a good argument that the much shorter products liability statute of limitations^[8] controls any products liability claim.

When the Oregon Supreme Court pointed out this unusual wrinkle of Oregon law in the Gladhart opinion, they also indicated a solution. The court noted that the legislature has the power and ability to draft a discovery rule if it so desires.^[9] Perhaps not surprisingly, the Oregon legislature has changed Oregon’s products liability statute of limitations to add an express discovery rule, which applies to injuries or damages that occur after January 1, 2004.^[10] Where damages may have occurred earlier, careful attention is needed to make sure that product defect claims in Oregon meet the fast-moving deadline imposed by the two-year statute of limitations.

For more information, e-mail Joel Leonard at joel@eoplaw.com or call 503-224-7112.
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1. See, e.g., FLA. STAT. § 95.011(3); 95.031(2)(b) (2002) (four years from discovery); 735 ILL. COMP. STAT. 5/13-213 (2001) (two years from discovery); Fidler v. E.M. Parker Co., 394 Mass. 534, 476 N.E.2d 595 (1985) (two years from discovery); Martz v. Weyerhaeuser Company, 965 S.W.2d 584 (Tex. App. 1998) (two years from discovery).

2. As set forth in footnote 18, below, the statutory scheme described in this article applies to products liability damages or injuries which occur before January 1, 2004.

3. 332 Or. 226, 26 P.3d 817 (2001).
   

4. OR. REV. STAT. § 30.905(2) (2001).
   
5. As happened in Evenstad v. Culp, Yamhill County Circuit Court case no. CV00312, where summary judgment was awarded against the building owner, and in favor of the EIFS manufacturer, on the basis of the Gladhart opinion and OR. REV. STAT. § 30.905(2).

6. See Lindemeier v. Walker, 272 Or. 682, 685, 538 P.2d 1266 (1975) (stating that the “predominant characteristic [of the action], not plaintiff’s election, governs” the time within which an action must be brought).

7. See Huff v. Shiomi, 73 Or. App. 605, 699 P.2d 1178 (1985), but query whether the rule of Huff has complete vitality after Gladhart. See also OR. REV. STAT. § 12.080 (2001) (declaring that the statute of limitations for indemnity or contribution is six years).

8. OR. REV. STAT. § 30.905(2) (2001).
   

9. Gladhart v. Oregon Vineyard Supply Co., 332 Or. 226, 233, 26 P.3d 817 (2001) (“[W]hen the legislature intends to condition commencement of a limitation period on the discovery of the harm, it knows how to express that intention.”).

10. See H.B. 2080, 72nd Leg., Reg. Sess. (Or. 2003), 2003 Oregon Laws, chapter 768, all soon to be codified in OR. REV. STAT. § 20.905 (2003). The changes brought by this now-enacted bill include, among others, discovery rules and a ten year statute of repose for damages that occur on or after January 1, 2004.