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Lunsford v. NCH Corp.

Court of Appeals of Oregon

June 3, 2015

Ronda LUNSFORD, Personal Representative of the Estate of Rodney Gale Lunsford, Deceased, Plaintiff-Appellant Cross-Respondent,
v.
NCH CORPORATION, dba Certified Labs, and dba Chemsearch; Aervoe Industries, Inc., fdba Zynolyte Products, Co., Inc.; Rust-Oleum Corporation; the Sherwin-Williams Company, dba Dupli-Color Products, Co., and fdba Dupli-Color Products, Co.; Dupli-Color Products, Co.; and Rodda Paint, Co., Defendants, and DYNACCO, INC., Defendant-Respondent Cross-Appellant. DYNACCO, INC., Third-Party Plaintiff,
v.
RUDD COMPANY, INC., Third-Party Defendant

Argued and Submitted January 29, 2015.

110912644. Multnomah County Circuit Court. Adrienne C. Nelson, Judge.

J. Randolph Pickett argued the cause for appellant-cross-respondent. With him on the briefs were R. Brendan Dummingan, Kristen West McCall, Kimberly O. Weingart, and Pickett Dummingan LLP.

Leslie A. Kocher-Moar argued the cause for respondent-cross-appellant. With her on the briefs were Robert D. Scholz, Megan L. Ferris, Chris L. Wyrostek, and MacMillan, Scholz & Marks, P.C.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

[271 Or.App. 566] FLYNN, J.

Plaintiff, personal representative of the estate of Rodney Gayle Lunsford (decedent), appeals from a judgment dismissing her product liability action against defendant Dynacco, Inc., because the action was not commenced within ten years of sale of the product, as required by ORS 30.905(3)(b) (2008), amended by Oregon Laws 2009, chapter 485, section 1 (the product liability statute of ultimate

Page 805

repose).[1] Plaintiff argues that ORS 30.905(3)(b) (2008) violates the Oregon Constitution, specifically the remedy clause of Article I, section 10, and the jury trial clause of Article I, section 17. We conclude that existing Supreme Court case law controls our disposition of both challenges and, accordingly, affirm.

I. BACKGROUND

The trial court granted a dismissal under ORCP 21 A(9), which is proper if " the pleading shows that the action has not been commenced within the time limited by statute." On review of the dismissal, " we must liberally construe the pleadings and draw all inferences in plaintiff's favor." Simonsen v. Ford Motor Co., 196 Or.App. 460, 473, 102 P.3d 710 (2004), rev den, 338 Or. 681, 115 P.3d 246 (2005) (citation omitted). According to the operative pleading--the third amended complaint--decedent died September 29, 2008, as a consequence of " Acute Myelogenous Leukemia" (AML) caused by long-term exposure to unreasonably dangerous benzene-containing products. One of those products was " Quick Shot," a product manufactured by defendant, purchased by decedent's employer in 1995, and used by decedent approximately once a month from the mid-1990s to the time he was diagnosed with AML. Plaintiff filed this wrongful death action in 2011, which alleges that defendant and others are liable for decedent's death under theories of both negligence and strict product liability. The trial court ruled that the claims against defendant were barred by ORS 30.905(3)(b) (2008) and entered a limited judgment of dismissal, from which plaintiff appeals.

[271 Or.App. 567] II. ANALYSIS

As pertinent to this appeal, ORS 30.905 (2008) provided, in part:

" (3) * * * a product liability civil action[2] for death must be commenced not later ...

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