1 –OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

NATHAN POWELL, No. 3:14-cv-01827-MO

OPINION AND ORDER

Plaintiff, 

v. 

ADLERHORST INTERNATIONAL, INC., a 

California corporation,

 Defendant.

MOSMAN, J., 

Plaintiff Nathan Powell brings this action against Defendant Adlerhorst International, Inc., 

asserting both a strict product liability and a negligence claim for injuries sustained from dog bites on 

April 19, 2012. Defendant moves for summary judgement [26]. I DENY Defendant’s motion. There are 

still genuine issues of material fact concerning whether the dog was defective and unreasonably 

dangerous at the time Defendant sold it to the City of Sherwood and whether Defendant was negligent. 

I. BACKGROUND

Defendant Adlerhorst International, Inc. is a California corporation owned and operated by 

David Reaver. Adlerhorst procures and imports dogs from Europe which have already been trained in 

the Schutzhund sport and sells these dogs to police agencies around the country to be trained and used as 

police service dogs. Mr. Reaver travels to Europe six to eight times a year to evaluate each dog before 

purchase, including tests for temperament, obedience, and responsiveness to commands. 

During a trip to Europe in June 2011, Mr. Reaver selected and purchased Azi, a German 

Shepherd, and imported him to the United States. Two weeks later, Adlerhorst sold Azi to the City of 

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Sherwood, Oregon. In the months following Sherwood’s purchase of Azi, the Clackamas County 

Sheriff’s Department spent over two hundred hours training Azi, consisting of exercises, field training, 

and classroom instruction. Azi eventually met the requirements to obtain his Oregon Police Canine 

Association (OCPA) certification as a police dog. Adlerhorst has included in its motion statements by 

several individuals who interacted with and trained Azi supporting Adlerhorst’s position that Azi was 

not overly aggressive or unsuited to be a police dog. 

On April 19, 2012, Sergeant Nathan Powell was on duty as a police officer with the Sherwood 

Police Department when he and a coworker walked out of the police building and into the fenced yard 

toward the parking lot. At that time, Azi was off-leash and also in the yard with his handler. As Sergeant 

Powell and his coworker were walking through the yard, Azi ran toward Sergeant Powell and lunged 

toward his face. When Powell blocked his face with his right arm, Azi bit Powell’s arm and refused to 

release, despite commands from his handler. Azi’s handler was only able to pull Azi off of Powell by 

lifting Azi off of the ground by his choke collar for several seconds. 

Sergeant Powell alleges Adlerhorst sold Azi to the City of Sherwood in an unreasonably 

dangerous defective condition, and therefore Adlerhorst is liable for strict product liability under Oregon 

law. Sergeant Powell also alleges that Adlerhorst is liable for common law negligence because it failed 

to accurately evaluate and screen Azi and sold him to the City of Sherwood when Azi was over 

aggressive and unfit to be a police service dog. Adlerhorst contends Azi was not in an unreasonably 

dangerous defective condition when it sold him to the City of Sherwood and the training Azi underwent 

subsequent to the sale would disqualify Powell from recovering under Oregon strict product liability 

law. Adlerhorst further contends that because Azi was not defective and unreasonably dangerous when 

sold to the City of Sherwood, Powell cannot prevail on his negligence claim. On summary judgment, 

Adlerhorst argues that no reasonably jury could find otherwise. 

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II. LEGAL STANDARDS

The court shall grant summary judgment if the movant shows that “there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A 

dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the 

nonmoving party.” Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). The substantive law governing 

a claim determines whether a fact is material. T.W. Elec. Serv. V. Pacific Elec. Contractors Ass’n, 809 

F.2d 626, 630 (9th Cir. 1987). 

“The movant has the burden of showing that there is no genuine issue of fact.’” Anderson, 477 

U.S. at 256. The moving party may carry its initial burden on summary judgment by “showing” that the 

opposing party lacks sufficient evidence to carry its ultimate burden of persuasion at trial. FRCP 

56(c)(1)(B); Celotex Corp v. Catrett, 477 U.S. 317, 325 (1986). The burden then shifts to the nonmoving 

party to establish, beyond the pleadings, that there is a genuine issue for trial. Catrett, 477 U.S. at 330. 

In evaluating a motion for summary judgment, a court “must draw all reasonable inferences in 

favor of the nonmoving party, and it may not make credibility determinations or weight the evidence.” 

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 150 (2000). 

III. ANALYSIS

Sergeant Powell asserts two claims against Adlerhorst. The first is a strict product liability claim; 

the second is a common law negligence claim. Adlerhorst seeks summary judgment on both of these 

claims. In its motion for summary judgment, Adlerhorst includes declarations by several individuals that 

claim that prior to attacking Powell, Azi had shown no behavioral, temperament, aggression, or control 

problems. Adlerhorst relies on these statements to make the argument that summary judgment for both 

claims is proper because no reasonable jury could find that Azi was unreasonably dangerous at the time

it sold Azi to the City of Sherwood. In his response, Powell offers the expert opinion of Dr. Richard 

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Polsky who states that Azi was inherently defective and never should have been sold to the City of 

Sherwood. (Pl. Resp. [28] at 10.) Adlerhorst responds by arguing I should disregard Dr. Polsky’s expert 

report because it is insufficient to create an issue of fact due to his lack of qualifications, absence of 

supporting facts, and improper scientific method. (Def. Reply [33] at 11-18.) 

Before I can reach the issue of whether Adlerhorst will prevail on summary judgment on the 

strict product liability and negligence claims, I must first determine whether I should disregard Dr. 

Polsky’s expert opinion. After I have reached a determination regarding Dr. Polsky’s opinion, I will 

address whether summary judgment is proper for either the strict product liability or negligence claim. 

A. Admissibility of Dr. Polsky’s Expert Opinion 

The admissibility and sufficiency of expert testimony is governed by Federal Rule of Evidence 

702. See Daubert v. Merrel Dow Pharm., Inc., 509 U.S. 579, 589 (1993). Rule 702 establishes several 

requirements for admissibility: first, the evidence must “help the trier of fact” either to “understand the 

evidence or to determine a fact in issue;” second, the witness has to be sufficiently qualified to render 

the opinion. Fed. Rule Evid. 702. The requirement that the opinion testimony “[help] the trier of fact . . . 

goes primarily to relevance.” Daubert, 509 U.S. at 591. The trial court must be assured that the expert 

testimony “both rests on a reliable foundation and is relevant to the task at hand.” Id. at 597. 

The district court is a gatekeeper in determining whether expert testimony is sufficiently reliable 

to be of use to a jury. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 147 (1999). The gatekeeping 

function “is to make certain that an expert, whether basing testimony upon professional studies or 

personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the 

practice of an expert in the relevant field.” Id. at 152. “Shaky but admissible evidence is to be attacked 

by cross examination, contrary evidence, and attention to the burden of proof, not exclusion.” Primiano 

v. Cook, 598 F.3d 558, 564 (9th Cir. 2010) (citing Daubert, 509 U.S. at 596). The Supreme Court has 

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emphasized that the “test of reliability is ‘flexible’” and the trial court has discretion to decide how to 

test an expert’s reliability as well as whether the testimony is reliable based on “the particular 

circumstances of the particular case.” Kumho, 526 U.S. at 141, 150, 152. “When an expert meets the 

threshold established by Rule 702, . . . the expert may testify and the jury decides how much weight to 

give that testimony.” Primiano, 598 F.3d at 565. 

Dr. Polsky’s opinion is clearly relevant, thereby satisfying the first requirement under Rule 702. 

What is relevant depends on what Sergeant Powell must prove to prevail on his strict product liability 

and negligence claims. See Primiano, 598 F.3d at 565 (“Expert opinion testimony is relevant if the 

knowledge underlying it has a valid connection to the pertinent inquiry.”) (citation omitted). As 

discussed in more detail below, one of the elements Powell must prove to prevail on his strict product 

liability claim is that Azi was defective and unreasonably dangerous at the time Adlerhorst sold Azi to 

the City of Sherwood. Similarly, one of the elements Powell seeks to prove in his negligence claim is 

that Adlerhorst knew or should have known that Azi was overly aggressive, disobedient, or vicious. Dr. 

Polsky’s opinion includes testimony, based on the materials he reviewed, that Azi was unfit to be sold to 

the City of Sherwood to be trained as a police service dog. This is enough to meet the relevance 

requirement under Rule 702. 

Dr. Polsky’s expert opinion testimony is also reliable, thereby meeting the second requirement 

under Rule 702. Adlerhorst contends Dr. Polsky’s testimony should be disregarded because he did not 

personally examine Azi and he does not cite any studies to support his opinions. (Def. Reply [33] at 14.) 

This, however, does not constitute automatic grounds for inadmissibility. Dr. Polsky bases much of his 

opinion on his review of the temperament testing and selection procedure that Mr. Reaver performed on 

Azi. (Polsky Dec. [31] at 2-4.) Based on this review, Dr. Polsky determined Mr. Reaver’s procedure was 

not a valid or reliable means of determining whether Azi had the temperamental qualities required for 

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performing police dog tasks. (Supp. Polsky Dec. [37] at 2.) Furthermore, even though Dr. Polsky never 

personally examined Azi, he did review a video recorded before Azi was sold to the City of Sherwood. 

Dr. Polsky says the video depicts the “aggressive nature of Azi” and “it is apparent that Azi was not 

well-controlled by Adlerhorsts’s own handler, was over-reactive, and failed to release the bite.” (Polsky 

Dec. [31] at 5.) As for the lack of a publication backing his opinion up, Daubert makes clear that this 

does not necessarily preclude an expert’s opinion from being admissible. See Daubert, 509 U.S. at 593. 

Adlerhorst also argues Dr. Polsky does not have the experience, education, or training to opine 

about the nature of a police dog or the expectations of a consumer.1

 (Def. Reply [33] at 14.) This does 

not appear to be the case. Dr. Polsky holds a Ph.D. in animal behavior and has over thirty years of 

practice and experience as an applied animal behaviorist. (Polsky Dec. [31], Ex. 1.) He has presented at 

numerous scientific meetings on a range of topics involving dog behavior including dog aggression 

specifically. He is a member of several professional societies, has published numerous papers in 

veterinary and animal behavior journals, and has given many lectures and seminars on dog aggression. 

(Id.) Furthermore, Dr. Polsky has been retained as a dog behavior expert in over 315 civil and criminal 

cases and has testified as an expert on dog aggression in over 50 trials, including six involving attacks 

by police service dogs. (Id.) 

The jury may reject Dr. Polsky’s opinion. It may conclude Mr. Reaver’s method of evaluating 

and screening Azi was appropriate and Azi was not defective and unreasonably dangerous when sold to 

the City of Sherwood. Or it may accept Dr. Polsky’s opinion and conclude his interpretation of evidence 

and other testimony demonstrates Azi was indeed unreasonably dangerous at the time of the sale. But 

those possibilities bear on the merits of Powell’s claim, not on the admissibility of Dr. Polsky’s 

 1 The basis for this argument is that Dr. Polsky “has not written any peer reviewed articles concerning police dogs; he has not

served as a police officer; he has not administered a law enforcement canine unit; he has not been retained by any police 

agency to teach management of canine units or to train canine service animals; he has not trained dogs for the Schutzhund 

sport.” (Def. Reply [33] at 14.) 

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testimony. Given that I am “a gatekeeper, not a fact finder,” the gate should not be closed to Dr. 

Polsky’s relevant opinion offered with sufficient foundation by one qualified to give it. U.S. v. 

Sandoval-Mendoza, 472 F.3d 645, 654 (9th Cir. 2006). “Where the foundation is sufficient, the litigant 

is entitled to have the jury decide upon [the expert’s] credibility, rather than the judge.” Primiano, 598 

F.3d at 566 (internal quote and citation omitted). 

B. Sergeant Powell’s Strict Product Liability Claim

Oregon’s product liability law is governed by statute. The elements required to prove the liability 

of a seller of a product are set out in O.R.S. 30.920 as follows: 

(1) One who sells or leases any product in a defective condition unreasonably 

dangerous to the user or consumer or to the property of the user or consumer 

is subject to liability for physical harm or damage to property caused by that 

condition, if: 

(a) The seller or lessor is engaged in the business of selling or leasing 

such a product; and 

(b) The product is expected to and does reach the user or consumer 

without substantial change in the condition in which it is sold or 

leased. 

Or. Rev. Stat. 30.920. Oregon courts have determined that a live animal is a “product” under Oregon’s 

product liability statute. See, e.g., Sease v. Taylor’s Pets, Inc., 74 Or. App. 110, 117, 700 P.2d 1054, 

1058 (1985). Furthermore, neither party is disputing that Adlerhorst was “engaged in the business of 

selling” dogs with Schutzhund training like Azi. Adlerhorst argues that there is insufficient evidence for 

a reasonable jury to find that Azi was “unreasonably dangerous” when it sold Azi to the City of 

Sherwood. Adlerhorst also argues that there is insufficient evidence for a reasonable jury to find that at 

the time of the incident, Azi was “without substantial change” in the condition in which he was sold. I 

conclude that there is a genuine issue of material fact regarding both the “unreasonably dangerous” and 

“without substantial change” elements, therefore summary judgment is not appropriate on Sergeant 

Powell’s strict product liability claim. 

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1. Unreasonably Dangerous 

To determine whether a product was “in a defective condition unreasonably dangerous to the 

user or consumer” under O.R.S. 30.920, Oregon has adopted the “consumer expectations test” pursuant 

to § 402A of the Restatement (Second) of Torts, comments a–m, as the theory of liability. See 

McCathern v. Toyota Motor Corp., 332 Or. 59, 77–79, 23 P.3d 320, 330–32 (2001) (rejecting the 

“reasonable manufacturer test” in favor of the “consumer expectations test,” which is in keeping with 

the language of O.R.S. 30.920 and § 402A of the Restatement (Second) of Torts). The plaintiff must 

prove two things under the consumer expectations test: (1) the product was in a defective condition not 

contemplated by the ultimate consumer which made it unreasonably dangerous; and (2) the defective 

product was dangerous to an extent beyond that which the ordinary consumer would have expected. 

Crosswhite v. Jumpking, Inc., 411 F. Supp. 2d 1228, 1231 (D. Or. 2006) (citing McCathern, 332 Or. at 

77–79; ORS 30.920 (1)–( 3)). 

Adlerhorst asserts that Azi was not in an unreasonably dangerous condition when he left 

Adlerhorst’s hands and was not more dangerous than an ordinary consumer of such a product would 

expect. (Def. Sum. J. Mot. [26] at 12.) Adlerhorst provides evidence that the consumer in this case—the 

City of Sherwood, including Azi’s handler and trainer—did not think Azi was unreasonably dangerous 

for his intended purposes. (Id.) Sergeant Powell must show that at the time Azi left Adlerhorst’s 

possession, Azi was in a condition not contemplated by an ordinary consumer which rendered him 

unreasonably dangerous. “The burden of proof that the product was in a defective condition at the time it 

left the hands of the particular seller is upon the injured plaintiff, and unless evidence can be produced 

which will support the conclusion that it was then defective, the burden will not be sustained.” 

Crosswhite, 411 F. Supp. 2d at 1231 (quoting § 402A, Comment g). 

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Sergeant Powell argues that the record is replete with evidence from which a reasonable jury 

could find that Azi was dangerous to an extent beyond what an ordinary consumer of a police service 

dog would expect. For example, Mr. Reaver admits in his declaration that a suitable dog is one that has a 

good temperament, is obedient, and is responsive to commands. (Reaver Aff. ¶¶ 2 and 3.) Powell offers 

Dr. Polsky’s expert opinion that Azi was unreasonably dangerous at the time of the sale and more 

dangerous than an ordinary police force would expect. As discussed above, Dr. Polsky bases his 

opinion, in part, on a video that he says demonstrates Azi was not well controlled by Adlerhorst’s 

handler, was over-reactive, and failed to release his bite. (Polsky Dec. [31] at 5.) Dr. Polsky’s expert 

opinion is enough to create a genuine issue of material fact about whether Azi was unreasonably 

dangerous under the consumer expectations test. 

2. Without Substantial Change

The second element at issue is whether the product was “expected to and does reach the user or 

consumer without substantial change in the condition in which it [was] sold or leased.” Or. Rev. Stat.

30.920(1)(b). Adlerhorst argues there is no genuine issue of material fact regarding this element because 

both Adlerhorst and the City expected that Azi would be retrained and modified by the City to be a 

police service dog and Azi was, in fact, retrained and modified. (Mot. [26] at 12-13.) Adlerhorst 

contends there is no evidence that Azi ever bit anyone without a protective sleeve before he received 

training from the police department; Azi was taught during his training that biting someone without a 

protective sleeve was permitted. (Def. Sum. J. Mot. [26] at 13.) The text of O.R.S. 30.920(1)(b) provides 

that the burden is on the plaintiff to prove that the product reached the user or consumer—which in this 

case is the City of Sherwood—without any substantial change in the condition in which it was sold. 

Sergeant Powell has met this burden. By its terms, O.R.S. 30.920(1)(b) is directed at the expected and 

actual condition of the product at the time it reaches the user or consumer. Adlerhorst introduces 

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testimony, including that of Mr. Reaver, that the training did change Azi’s behavior. However this 

training occurred after Azi reached the City. Powell introduces the testimony of Dr. Polsky that Azi was 

defective and unreasonably dangerous before the sale and before the training started. The evidence in the 

record constitutes a genuine issue of fact as to whether Azi’s post-sale training “substantially changed” 

the dog. 

Because there is a genuine issue of fact regarding both the “unreasonably dangerous” and 

“without substantial change” elements, I DENY Adlerhorst’s motion for summary judgment for 

Sergeant Powell’s strict product liability claim.

C. Plaintiff’s Negligence Claim

Sergeant Powell also alleges a common law negligence claim against Adlerhorst, alleging 

Adlerhorst erred in failing to evaluate, screen, and determine the suitability of Azi when the dog was 

allegedly over-aggressive. Essentially Powell asserts that Azi was unfit to be a police service dog. 

Adlerhorst argues that although Powell has alleged separate negligence and strict product liability 

theories, both claims are controlled by the substantive product liability law and statutes, and therefore 

Powell cannot maintain an independent negligence claim along with the strict product liability claim. 

Powell argues that his common law negligence claim is separate and is not controlled by the product 

liability laws. 

The definition of a “product liability civil action” is set forth in O.R.S. 30.900: 

A civil action brought against a manufacturer, distributor, seller or lessor of a 

product for damages for personal injury, death or property damage arising out of: 

(1) Any design, inspection, testing, manufacturing or other defect in a product; 

(2) Any failure to warn regarding a product; or 

(3) Any failure to properly instruct in the use of a product. 

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Or. Rev. Stat. 30.900. Adlerhorst relies on Kambury v. Daimler Chrysler Corp, 185 Or. App. 

635, 60 P.3d 1103 (2003), and Crosswhite, 411 F. Supp. 2d 1228, to support its position. 

However, the common thread among these and other cases is the application of the statute of 

limitations or the statute of ultimate repose to a negligence or breach of warranty claim alleging 

facts constituting a “product liability civil action” as defined in O.R.S. 30.900. In these cases, the 

plaintiff’s strict product liability claim was barred by the applicable statute, and the issue was 

whether the negligence or warranty claim was similarly barred. See, e.g., Philpott v. A.H. Robins 

Co., 710 F.2d 1422, 1424 (9th Cir. 1983) (O.R.S. 30.905(1), providing that a product liability 

civil action cannot be commenced later than eight years after the date on which the product was 

first purchased for use or consumption, applied to all of the plaintiff’s claims, including 

negligence, breach of warranty, and willful misconduct); Jamison v. Spencer R.V. Center, Inc., 

98 Or. App. 529, 531–32, 779 P.2d 1091–93 (1989) (action for negligence against the seller of a 

product who had assembled the parts, was a product liability action under O.R.S. 30.900 and so 

was governed by the eight-year product liability statute of ultimate repose and not a ten-year 

negligence statute of limitations); Bancorp Leasing and Financial Corp. v. Agusta Aviation 

Corp., 813 F.2d 272, 277 (9th Cir. 1987) (two-year statute of limitations of O.R.S. 30.905(2), not 

the four-year statute applicable to breach of warranty claims, governed the plaintiff’s strict 

liability, negligence, and breach of warranty claims). 

In Kambury, the Oregon Court of Appeals held that the plaintiff’s negligence claim 

stemming from a products liability action was “subject to and barred by the two-year statute of 

limitations for product liability civil actions” under O.R.S. 30.905(2). Kambury, 195 Or. App. at 

640. Likewise, this court held in Crosswhite that O.R.S. 30.900 “embraces all theories a plaintiff 

can claim in an action based on a product defect” including “claims based on theories of 

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negligence, strict liability, breach of warranty and fraudulent misrepresentation.” Crosswhite, 

411 F. Supp. at 1231 (quoting Kambury, 185 Or. App. at 639; Simonsen v. Ford Motor Co., 196 

Or. App. 460, 466, 102 P.3d 710, 714 (2004)). The Simonsen case that Crosswhite quotes also 

focuses on whether breach of warranty claims are governed by the statute of repose for product 

liability actions. Simonsen, 196 Or. App. at 479. 

Adlerhorst has cited no cases, and I have found none, holding that a negligence action 

cannot co-exist with a viable strict product liability claim. Without any authority suggesting that 

a plaintiff cannot proceed on both theories, I decline to accept Adlerhorst’s argument in the 

context of this case. 

I also decline to accept Adlerhorst’s argument that no reasonable jury could find that 

Adlerhorst knew or reasonably should have known Azi was overly aggressive, disobedient, or 

vicious to support a common law negligence claim. As discussed above, a reasonable jury could 

find from Dr. Polsky’s testimony that, even before Adlerhorst sold Azi to the City, the dog 

demonstrated its hyper aggressive tendencies, including its refusal to release a bite on 

command—a behavior Mr. Reaver concedes reveals a dog is unfit for use as a police service dog. 

Dr. Polsky’s testimony also would permit a jury to infer Mr. Reaver knew or reasonably should 

have known from his observations of the dog that it was disobedient, over-reactive, and would 

not release from a bite. Therefore, a reasonable jury could properly infer Mr. Reaver knew or 

reasonably should have known that Azi did not have a suitable temperament for a police dog and 

never should have been sold to the City of Sherwood for that purpose. 

Because there is a genuine issue of fact of whether Adlerhorst knew or should have known that 

Azi was unfit to be a police dog before it sold Azi to the City, I DENY Adlerhorst’s motion for 

summary judgment for Sergeant Powell’s common law negligence claim. 

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E. CONCLUSION

As explained above, Defendant Adlerhorst has not carried its burden to demonstrate no genuine 

issue of material fact exists. A reasonable jury could find Azi was defective and unreasonably dangerous 

at the time of the sale to the City of Sherwood and that Azi reached the City without substantial changes. 

A reasonable jury could also find Mr. Reaver knew or reasonably should have known Azi was not fit for 

police dog service and never should have been sold to the City. Therefore, I DENY Defendant 

Adlerhorst’s Motion for Summary Judgment [26]. 

DATED this 4th day of November, 2015. 

/s/ Michael W. Mosman______ 

MICHAEL W. MOSMAN

United States District Judge

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