Unpublished Disposition, 916 F.2d 716 (9th Cir. 1990)

MEMORANDUM^* 

INTRODUCTION

Plaintiffs appeal from the district court's grant of summary judgment in favor of defendant, Shiley, Inc. ("Shiley"). For the reasons stated below, we affirm.

FACTS

Shiley manufactures the Bjork-Shiley prosthetic heart valve. All plaintiffs, except for Norman Pryor, have received Shiley valves. Plaintiffs allegedly suffered emotional distress after they were informed that Shiley's valves were susceptible to a relatively high rate of failure. Plaintiffs Virginia Pryor, Norman Pryor, and Eileen Helbing filed their actions in Oregon state court. Shiley filed petitions for removal, in which it alleged diversity jurisdiction under 28 U.S.C. § 1332. The other plaintiffs filed complaints in the United States District Court for the District of Oregon and alleged jurisdiction based on diversity.

Plaintiffs alleged that Shiley was negligent because it sold heart valves with knowledge of their high failure rate, failed to provide proper information to the parties concerned, failed to maintain quality control, and failed to investigate "strut fractures" in heart valves. Plaintiffs also asserted claims for strict product liability. All plaintiffs except the Pryors and Helbing alleged claims for misrepresentation.

All of these actions were consolidated under the lead case of Kent v. Shiley, Inc. on August 8, 1988. In Kent, the plaintiff alleged negligence and strict liability causes of action. Shiley had filed for summary judgment in the Kent case. The court ordered responses from plaintiffs in these cases to the Kent motion for summary judgment.

The magistrate recommended that the Kent action be dismissed for failure to allege physical harm. The magistrate stated that:

[T]he law of Oregon requires some physical harm to the user or consumer in order to state a claim for negligence or strict liability. In this case, there has not been a product failure or malfunction resulting in an injury to plaintiff. Plaintiff's emotional distress or fear of being injured as the result of a possible future failure or malfunction is not the type of 'injury' recognized by Oregon courts and I decline to extend the law of Oregon to include such claims.

The district court accepted that recommendation and dismissed the Kent action.

Shiley then moved for summary judgment in these actions. The parties consented to have the matters determined by the magistrate. The magistrate then granted Shiley's motions for summary judgment and filed judgments on July 10, 1989. After the judgments had been filed, the parties filed stipulations which stated that the valves in question had not malfunctioned and had not caused physical harm or injury. Plaintiffs filed timely notices of appeal on August 8, 1989. We have jurisdiction under 28 U.S.C. § 1291.

STANDARD OF REVIEW

This court reviews de novo the grant of summary judgment and the district court's interpretation of state law. Morton v. Safeco Ins. Co., No. 89-15193, slip op. 5889, 5893 (9th Cir. June 7, 1990).

DISCUSSION

We first note that plaintiffs do not appeal from the dismissal of their strict liability causes of action. See Or.Rev.Stat. Sec. 30.920(1). We therefore do not address the dismissal of those causes of action.

The negligence causes of action were properly dismissed. Oregon has adopted the position in Restatement (Second) of Torts Sec. 388 (1965), which states that one who supplies a chattel with knowledge of its dangerous propensities is liable for "physical harm" caused by the chattel. See Brizendine v. Visador Co., 437 F.2d 822, 826 n.4 (9th Cir. 1970). See also Restatement (Second) of Torts Secs. 395, 398 (1965) (negligent manufacture and design; same physical injury requirement).

The Oregon Supreme Court has permitted recovery of damages for pure emotional or psychic injury in limited circumstances. Norwest ex rel. Crain v. Presbyterian Intercommunity Hosp., 293 Or. 543, 652 P.2d 318, 327 (1982). One circumstance is when the "defendant's conduct was either intentional or equivalently reckless of another's feelings in a responsible relationship." Norwest, 652 P.2d at 327. Plaintiffs cannot succeed upon that theory, because the claim in question is one for negligence, not intentional conduct. In any event, Shiley was not in a responsible relationship with plaintiffs in the sense delineated in the cases relied upon in Norwest. Cf. Hall v. May Dep't Stores Co., 292 Or. 131, 637 P.2d 126 (1981) (employer-employee relationship); Turman v. Central Billing Bureau, Inc., 279 Or. 443, 568 P.2d 1382 (1977) (debt collector-debtor relationship); Rockhill v. Pollard, 259 Or. 54, 485 P.2d 28, 31 (1971) (doctor-patient relationship).

Another circumstance discussed in Norwest is when the defendant "infringed some legally protected interest apart from causing the claimed distress." 652 P.2d at 327. Plaintiffs also fail to state causes of action under this theory. Shiley does not have any special legal obligation to plaintiffs aside from the obligations normally imposed under common law upon all manufacturers. Cf. McEvoy v. Helikson, 277 Or. 781, 562 P.2d 540 (1977).

In the alternative, plaintiffs rely upon Wilson v. Tobiassen, 97 Or.App. 527, 777 P.2d 1379, rev. denied, 308 Or. 500, 784 P.2d 441 (1989). The Wilson court permitted the recovery of damages for negligent infliction of emotional distress, but only after finding a predicate physical impact. 777 P.2d at 1382-83. Plaintiffs argue that the implantation of the valve suffices as a physical impact. However, the implantation itself was not a wrong. Thus, this case is unlike Wilson in which the very touching that brought about the plaintiff's emotional distress was itself wrongful.

Plaintiffs also rely upon Oksenholt v. Lederle Laboratories, 294 Or. 213, 656 P.2d 293 (1982). Plaintiff in Oksenholt stated a negligence claim, because his economic harm was the equivalent of physical injury. Plaintiffs here stipulated that they have yet to suffer physical injury. Therefore dismissal of the negligence causes of action was appropriate. See also Dortch v. A.H. Robins Co., Inc., 59 Or.App. 310, 650 P.2d 1046, 1051 (1982) (for purposes of Or.Rev.Stat. Sec. 30.905, physical injury required).

The misrepresentation causes of action were properly dismissed also. Oregon treats all product liability actions the same, regardless of the theory asserted. See Or.Rev.Stat. Sec. 30.900. Plaintiffs cannot avoid the physical harm requirement by recasting their failure to warn claims as misrepresentation claims.

In short, this case involves plaintiffs' claims that defendant manufactured and marketed a defective product. Plaintiffs do not allege that the product has failed, nor do they claim that they have suffered any physical harm or injury. Quite the contrary, they stipulated that they have not. They do claim emotional harm but they have neither alleged facts that would exempt them from Oregon's usual restrictive rules nor alleged that defendant specifically intended to inflict that harm upon them. See Sheets v. Knight, 308 Or. 220, 779 P.2d 1000 (1989). Therefore, they have not spelled out a claim under the law of Oregon.

AFFIRMED.