Recent Products Cases in OR, WV

A decision from the Oregon Supreme Court held that a hospital that supplies and administers a dangerous defective drug while rendering emergency services is a product “seller” under the state’s product liability statute:

Providence Health Sys. v. Brown, 372 Or. 225, 227, 239, 548 P.3d 817, 820, 826 (2024) (holding that “a hospital that supplies and administers a dangerously defective drug in conjunction with providing a healthcare service can be a ‘seller’ that is ‘engaged in the business of selling’ for purposes of liability” under state products liability statute; “[T]he distinction between one who is ‘engaged in the business of selling’ a product and one who is not depends on whether the seller sells the product as part of the usual course of its business, even if selling the product is ancillary to providing services to the consumer”).

An opinion from the West Virginia Supreme Court of Appeals adopted the requirement that a plaintiff in a design defect case must prove that a reasonable alternative design exists, but emphasized that the alternative design need only have substantially reduced, and not necessarily eliminated, the risk of the specific injury suffered by the plaintiff:

Shears v. Ethicon, Inc., ___W. Va.___, ___, 902 S.E.2d 775, 777, 785 (2024) (answering certified question) (accepting the requirement that “[a]s part of a prima facie case of strict product liability based upon a design defect, a plaintiff is required to prove that an alternative, feasible design existing at the time the subject product was made [that] would have substantially reduced the risk of the specific injury suffered by the plaintiff”; emphasizing that the alternative design must only have substantially reduced, and not eliminated, the risk of the specific injury suffered by the plaintiff).