In Lunsford v. Dynacco, et al., plaintiff brought product liability claims against Dynacco and others, alleging plaintiff’s decedent died as a result of exposure to benzene-containing products. MS&M defended Dynacco and obtained dismissal of all claims based on Oregon’s product liability statute of repose (ORS 30.905). Plaintiff appealed, arguing the statute of repose was unconstitutional. In 2015, the Oregon Court of Appeals upheld the constitutionality of ORS 30.905 and affirmed the dismissal. Plaintiff petitioned for review by the Oregon Supreme Court, which Court ultimately allowed review and remanded for reconsideration in light of Horton v. OHSU, the Oregon Supreme Court’s May 2016 decision regarding Oregon’s noneconomic damages cap.
On April 26, 2017, the Court of Appeals again affirmed dismissal of the Lunsford case. The Court wrote:
On remand, we again conclude that plaintiff’s challenge under the remedy clause is foreclosed by a controlling Supreme Court opinion. In the wake of Horton, we now arrive at the same result by following Sealey v. Hicks, 309 Or 387, 396, 788 P2d 435 (1990), in which the Supreme Court rejected an Article I, section 10, challenge to the statute of ultimate repose under a remedy clause paradigm that—although previously disavowed by the Supreme Court—has now been restored by Horton. We reject plaintiff’s argument that we can distinguish or disregard Sealey. We also adhere to our prior conclusion that Sealey requires us to reject plaintiff’s Article I, section 17, challenge. Accordingly, we affirm.
Plaintiff has again petitioned for review by the Oregon Supreme Court and that petition is currently pending.