Case Notes

No violation of separation of powers exists where the legislature permits revival of certain product liability litigation for which a court has rendered a final judgment of dismissal. McFadden et al. v. Dryvit Systems, Inc., SC S51901, Supreme Court of Oregon, May 26, 2005.

The McFaddens had an exterior stucco siding system installed. Thereafter, water damage occurred in their residences, which they alleged stemmed from improper installation of the siding system. In 2001, the McFaddens commenced an action against the installer and Dryvit, the manufacturer. The plaintiffs settled with the installer and the action against Dryvit was eventually dismissed as time-barred under ORS 30.905, which imposes a 2-year statute of limitations on product liability actions. Thereafter, the Oregon legislature enacted a statute, effective Jan. 1, 2004, to allow a product liability action to be commenced 2 years after the date the plaintiff discovers or reasonably could have discovered the injury or property damage and the causal connection between the injury or damage and the product. The statute also permitted revival of any cause of action that was filed under the former Oregon statute and dismissed. It was undisputed that the plaintiffs' claims were covered under the statute. The plaintiffs filed a new action against Dryvit on Jan. 22, 2004. Dryvit moved to dismiss, arguing that the statute as revised violates the doctrine of separation of powers.