Product Liability Pointers Volume III, No. 11


Volume III, No. 11

Monday, July 31, 2023
A Monthly Electronic Newsletter

As a public service, Hurwitz Fine P.C. is pleased to present this monthly e-newsletter providing summaries of and access to the latest products liability decisions from the New York State and Federal courts. The primary purpose of this newsletter is to provide timely educational information and commentary for our clients and subscribers. In some jurisdictions, newsletters such as this may be considered Attorney Advertising.



Strict Products Liability
Design & Manufacturing Defects
Failure to Warn
Breach of Warranty
Medical Device Litigation
Governmental Agencies and Regulations
Toxic Torts, Asbestos and Lead Paint



Greetings and Happy Summer!  After suffering a veto this past January, a revised version of the Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons (“close family members”) who can seek recovery for a fatality, has passed both houses of the New York Legislature. We discuss the latest here in "The Resurrection of the Grieving Families Act: Another Attempt to Revamp New York’s Wrongful Death Statute."  The 2023 version of the legislation more narrowly defines the pool of plaintiffs who would be able to bring a case for wrongful death, expands the statute of limitations from two to three years, and would apply retroactively to any cause of action accruing on or after July 1, 2018, regardless of when the claim was filed.  While Governor Hochul had voiced support for a more limited reform of New York’s Wrongful Death Statute to include a cap on damages and carve out an exception for medical malpractice claims, notably she has not requested delivery of this bill from the legislature, which must occur by year-end. It would thus appear that the revised iteration of the bill does not adequately address the Governor’s concerns about the burden and increased costs on families, small businesses, and New York’s health care industry.  It is our understanding that further discussions and negotiations are underway with the Governor’s office.  Stay tuned!

In further legislative news, Mike Williams reports on another piece of pending legislation that would have an adverse impact on the defense of product liability claims in New York State in "New York proposes legislation conditioning a foreign corporation’s authority to do business in New York with consent to jurisdiction of the New York courts for all actions against the corporation."

Please welcome Alice Trueman as our newest addition to the Products Pointers team.  This month, Alice addresses a claim of a deceptive chewing gum label that left a sour taste in the court’s mouth.  And don’t sleep on her analysis of an alleged failure to warn claim against a retailer concerning the packaging of a compressed memory foam mattress.

We have an interesting array of other products decisions this month.  The First Department leaves a New York distributor holding the pot on a defective potholder claim after applying Texas law to dismiss the Texas retailer. We also have a case arising out of the notorious Rikers Island, which is dangerous enough without, allegedly, having prisoners use defective can openers. 

Pour a glass for our very own Scott Kagan, who was successful in his appeal to the Third Department, effectively arguing that the “economic loss doctrine” precludes a claim for lost wine sale profits due to a defective wine chiller component.

Mark Nemeth also brings his update on New York asbestos litigation, with a trial court decision on the sufficiency of proof and causation on a talc claim, and a challenge to the sufficiency of successor liability allegations in NYCAL’s standard form complaints.

Lastly, at Hurwitz Fine, we have some exciting news to share as regular contributors to this newsletter Scott Kagan (Albany), Mike Williams (Buffalo) and Jesse Siegel (Long Island), have been promoted to Members of the firm.  Further congratulations to our resident Connecticut insurance coverage attorney Lee Siegel who has been named a Shareholder.  We also welcomed two experienced and talented litigation attorneys to our Long Island office, Patrice Melville and Ashley Cuneo.

We are also proud to announce that Hurwitz Fine has achieved Midsize Mansfield Certification! Mansfield Rule Certification, a nationally recognized law firm diversity certification.  In fact, we received Certification “Plus” status, which indicates that we have successfully achieved 30% diverse representation and are the first Buffalo-based law firm to attain this diversity goal. Hurwitz Fine has renewed its commitment, and is currently joining the next 2023 - 2024 certification class. 

And now for this month’s dad joke:

Why was the pediatrician so angry?

He had little patients.


V. Christopher Potenza  ■  Member
Hurwitz Fine P.C.
The Liberty Building 
424 Main Street, Suite 1300  ■  Buffalo, NY 14202
tel (716) 849-8900  ■ cell (716) 523-8941 ■ fax (716) 855-0874
Email:  [email protected]
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Don’t forget to subscribe to our other publications:

Coverage Pointers: This twice-monthly electronic newsletter summarizes important insurance law decisions from appellate courts in New York State with the occasional snapshot across borders. Contact Dan Kohane at [email protected] to subscribe.

Labor Law Pointers:  Labor Law Pointers offers a monthly review and analysis of every New York State Labor Law case decided during the month by the Court of Appeals and all four Departments. Contact Dave Adams at [email protected] to subscribe.

Medical & Nursing Home Liability Pointers:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  Contact Chris Potenza at [email protected] to subscribe.

Premises Pointers This monthly electronic newsletter covers current cases, trends and developments involving premises liability and general litigation. Contact Jody Briandi at [email protected] to subscribe.


Design Defects
By: V. Christopher Potenza
[email protected]

02/15/2023         Salinas v. World Houseware Producing Co. Ltd., et al.
Appellate Division, First Department
New York court applies Texas law to dismiss product claim against Texas retailer.
Plaintiff alleges she sustained severe injuries when a potholder which she was using caught fire.  The New York based distributor, Josie Accessories, Inc., moved for summary judgment arguing that the potholder was reasonably safe for its intended use and was not defective. Plaintiff raised an issue of fact as to whether the potholder was defective by submitting an expert affidavit that opined that the potholder was defective and was not designed and manufactured in accordance with industry norms, the stitching and fill material of the potholder was all or partially composed of polyester, which increased its flammability, and that the potholder was not treated with flame retardant.

The Texas based retailer, Dolgencorp of Texas, Inc., also moved for summary judgment.   Because plaintiff is a Texas resident who was injured in Texas by a product purchased in Texas, and the only connection to New York is Josie's place of business, the substantive issues here are governed by Texas law.  Under Texas law, Dolgencorp, as a nonmanufacturing seller of the potholder, can be exempt from liability if it did not participate in the design of the potholder. Here, plaintiff failed to raise any triable issue as to whether Dolgencorp participated in the design of the potholder, and thus the court properly granted summary judgment dismissing the complaint against the Texas based retailer.


Manufacturing Defects
By: Jesse L. Siegel

It’s grilling season, and with that comes the increased potential for products liability suits in regard to barbecues.  Of course, if you put the grill together yourself and accidentally left out several screws, you may be out of luck.  Just ask my father, who accidentally blew up our brand new barbecue just two days after we moved to Long Island back in July of 1985.  Thankfully, no one was injured, and the house was not damaged.  The same could not be said for the barbecue, though.
Switching gears, in our first case, the Second Department grapples with both spoliation as well as prima facie entitlement to summary judgment in the context of a manufacturing defect allegation.
In a case handled by my good-friend and partner Scott Kagan, the Third Department upheld his argument that the “economic loss doctrine” barred plaintiff’s tort claims in a strict products liability action.
02/15/2023         Auguste v. Edlund Co., LLC
Appellate Division, Second Department
Jail Break: Court upholds denial of summary judgment as circumstantial evidence can be used to establish identity of manufacturer of allegedly defective can opener in prison kitchen.
Plaintiff allegedly was injured during the course of her employment as a cook at Rikers Island when a commercial can opener malfunctioned, causing injury to her right thumb. Thereafter, the plaintiff commenced an action to recover damages for personal injuries against the defendants Edlund Company, LLC (hereinafter “Edlund”), and 120 Kimball Corporation (hereinafter “120 Kimball”), the alleged manufacturers of the can opener. The plaintiff testified at her deposition that the can opener was one of three identical can openers in use in the kitchen at Rikers Island. In March 2018, an inspection of the kitchen at Rikers Island was conducted, and it was discovered that the can opener which allegedly caused the plaintiff's injuries could not be located and had possibly been destroyed.
Edlund moved for summary judgment or in the alternative, to strike the complaint for spoliation of evidence.  120 Kimball cross-moved as to spoliation.  The lower court denied the motion and the cross-motion, and the defendants appealed separately.
Firstly, the Court ruled that the Supreme Court did not improvidently exercise its discretion in denying the spoliation branch of the motion, in that defendants failed to show plaintiff had control over the can opener, that she had an obligation to preserve it, or that she lost or destroyed it.  Since there was no proof that she discarded the evidence or was responsible for its disappearance, sanctions for spoliation were not appropriate.
Likewise, the Second Department found Edlund failed to demonstrate prima facie entitlement to summary judgment as a matter of law. In defeating a claim for strict products liability on summary judgment, a defendant must show that its product was not defective or that there were other causes of the accident not attributable to it.  Edlund contended that the plaintiff failed to establish that it manufactured the can opener. The identity of the manufacturer of a defective product may be established by circumstantial evidence. Moreover, circumstantial evidence may sufficiently demonstrate the maker's identity, notwithstanding the destruction of the allegedly defective product after use.  In the case at bar, the circumstantial evidence of the identity of the manufacturer of the subject can opener established that it was reasonably probable, not merely possible, that Edlund was the manufacturer of the can opener.  In addition, Edlund failed to demonstrate that the can opener was not defective or that there were other causes of the accident not attributable to it.
4/13/2023 The Cincinnati Insurance Company v. Emerson Climate Tech., et al.
Appellate Division, Third Department
Pour it out: Plaintiff’s lost wine profits claim barred by the economic loss doctrine.
Plaintiff commenced the action alleging damages resulting from a fire that occurred at Owera Vineyards.  The incident allegedly resulted from the malfunction of a component part contained within a process chiller (purchased by Owera).  Plaintiff alleged the part and chiller were defective and unreasonably dangerous.
Plaintiff alleged a cause of action against defendant for economic loss arising from strict products liability due to the alleged malfunction of the part and chiller.  Specifically, plaintiff sought damages for: (1) malfunction of the chiller; (2) damage to the chiller; and (3) damage to the 6,000 gallons of wine stored within Owera’s stainless-steel storage tanks.
In a unanimous decision, the Third Department affirmed the dismissal, holding that the economic loss doctrine provides that where only economic loss with respect to a product itself is alleged and the underlying transaction is a sale of goods, the purchaser is limited to contractual remedies and may not maintain the traditional tort causes of action of negligence or strict products liability. The Third Department agreed that the rule applies to both economic losses with respect to the product itself and consequential damages resulting from the alleged defect.  The Court reminded plaintiff that the economic loss doctrine permits recovery in tort for “physical injury” or damage to other property, which did not exist here.  The Court agreed and found that the loss of value to the wine (e.g., lost profits), was a consequential damage caused by the chiller’s failure to perform as anticipated under normal business conditions.


Failure to Warn
By: Alice A. Trueman
[email protected]

I am happy to introduce myself as the new contributor for Products Pointers and will be bringing you the latest news and highlights on claims involving failure to warn.  I will also be continuing the tradition of Lady Facts, a lesser known but nonetheless inspiring fact about women in history.
Summer is here, and if I’m not at work, I can be found covered in sunscreen boating with my husband and daughter. Relatedly, I will provide you with a lesser known but nonetheless inspiring fact about women in history.  This spring, a South African boater, Kristen Neuschäfer, became the first woman to win the historic Golden Globe Race. The Golden Globe Race began from Les Sables-dÓlonne, France on September 4, 2022, with the aim of making it around the world via the Five Great Capes before returning to the coastal town in the west of France. Entrants of the Golden Globe Race conduct this journey solo, non-stop, in yachts that are designed before 1988 and without electronic instruments or autopilots. Not only did Neuschäfer win, but during the race she diverted her path to rescue a fellow racer whose boat had sank and who was stranded for over 24 hours in the Southern Indian Ocean. After the rescue, they both indulged in a well-deserved drink of rum. She finished the race with an official time of 233 days, 20 hours, 43 minutes and 47 seconds- provided as a planning tool just in case one of our devoted readers is ready to redirect their life course and take a shot at the next Golden Globe Race.
In products news, the Western District dismissed a deceptive labeling claim, finding that a reasonable consumer should know that peppermint gum doesn’t necessarily contain any peppermint.  The Northern District dismissed claims of a plaintiff who was supposedly injured by a memory foam mattress that exploded out of the box.
4/20/23            Davis v. Pur Company (USA), Inc.
United States District Court, Western District of New York
District Court takes the flavor out of plaintiff’s claim of deceptive labeling of chewing gum.
This class action lawsuit was commenced by a group of plaintiffs alleging that defendant marketed and sold packages of peppermint chewing gum which derived their peppermint flavoring from “natural flavors” but actually did not contain any real peppermint at all.  Referring to a long history of similar cases involving vanilla flavored products, the District Court agreed with defendant that a reasonable consumer would understand that the word “peppermint” on a package of gum is an indication that the gum is peppermint flavored, and not that it contains peppermint oil or extract as the sole source of that flavor – particularly where “natural flavors” are listed among the ingredients on the same label.  As such, the District Court concluded that a reasonable consumer, acting reasonably under the circumstances, would not be misled by the word peppermint on the label, and dismissed plaintiff’s deceptive labeling claim. 
3/13/23            Elena Pankova-Visser v. Walmart Inc., et al.
United States District Court, Northern District of New York
Retailer not liable under failure to warn theory as it had no reason to know that compressed memory foam mattress was dangerous or likely to be dangerous.
Plaintiff purchased a Lucid brand mattress from retailer Walmart that was supplied by CVB, Inc.  When removing the compressed memory foam mattress from the box, the mattress started to decompress while half-folded, resulting in a force that caused it to rapidly expand, knocking the plaintiff over and causing her injury.  Plaintiff sued Walmart and CVB asserting claims of failure to warn, failure to inspect, and negligent design.  The Northern District of New York granted summary judgment to defendants. 
The Court began its analysis by noting that plaintiff had no expert willing to opine that the design of the mattress or the packaging was deficient or violated any design standard.  Regarding plaintiff’s first claim for a failure to warn, the Court dismissed plaintiff’s claim applying the test established in Topliff v. Wal-Mart Stores East LP, No. 6:04-CV-0297, 2007 WL 911891 (NDNY  2007].  Under Topliff, if a retailer obtains a product from a known and reputable source, then that retailer is free from liability unless they knew or “had reason to know” that the product was dangerous or likely to be dangerous.  The Court found that there was no evidence in the record from which a factfinder could conclude that the mattress and/or its plastic packaging was dangerous, and even if there were, there was no evidence to support that the retailer defendant knew or had reason to know.  Plaintiff’s cause of action for failure to inspect or test the product packaging was similarly dismissed on the ground that under New York law, a retailer has no duty to inspect or test the contents of a sealed package.  Moreover, Walmart never had the product in its possession to conduct an inspection. 
Finally, the Court dismissed plaintiff’s third cause of action for negligent design or manufacture of the mattress and/or its plastic packaging.  Under New York law, design defect claims for negligence and strict liability are functionally equivalent, requiring that a plaintiff establish (1) the product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the design was a substantial factor in causing the plaintiff’s injury.  Neither defendant manufactured or designed the mattress or the plastic packaging that surrounded it and both defendants had reasonable grounds for believing that the mattress and the plastic packaging was free from defects. 


Toxic Torts, Asbestos, and Lead Paint
By: Mark S. Nemeth

The joke is getting old, but whenever we are asked what the new “asbestos” litigation will be, the answer is the same: asbestos. The New York asbestos docket continues to be as busy as ever.
In one of his first substantive decisions since presiding over the Eighth Judicial District Asbestos Litigation (Western New York), Hon. Raymond W. Walter denies summary judgment to a talc supplier but dismisses the punitive damages claim.  Down in NYCAL,  an alleged successor-in-interest to a boiler company takes aim at the sufficiency of the allegations in NYCAL’s standard form complaints.
4/28/23            Campise v. Arkema Inc., et al.
Supreme Court, Erie County
Trial court finds issue of fact as to whether talc supplier provided the alleged asbestos containing talc in the consumer product used by plaintiff.
Estate of decedent brought wrongful-death asbestos action against supplier of talc and makers of consumer products containing talcum powder, alleging that decedent died from mesothelioma caused by exposure to consumer products containing talc from supplier. The trial court held that the supplier did not make a prima facie showing that it was entitled to judgment as a matter of law based on its alleged failure to supply talc to the makers of consumer products to which decedent was exposed; genuine issues of material fact exist over whether there was asbestos in talc supplied by supplier to makers of consumer products to which decedent; genuine issues of material fact over the issue of general causation, namely the issue of whether there was a significant association between exposure to talc and mesothelioma; and genuine issues of material fact over the issue of specific causation, namely the issue of whether decedent's mesothelioma was caused by exposure to consumer talcum-powder products used by his mother. 
The trial court did dismiss the claim for punitive damages, holding that the supplier did not engage in wanton, malicious, or reckless acts.
3/13/23             Barlotta v. PB Heat LLC, et al.
Appellate Division, First Department
Motion to dismiss sufficiency of successor-liability allegations in form NYCAL complaint denied. 
PB Heat was sued individually and as a successor in interest to Peerless Industries, under a theory of successor liability.  PB Heat moved to dismiss at the pleading stage for failure to state a cause of action pursuant CPLR 3211(a)(7), arguing that the allegations in the standard form complaints filed by plaintiffs in this New York City Asbestos Litigation (NYCAL) contain no specific factual allegations detailing its relationship with Peerless Industries that would support a finding of successor liability.   Pursuant to the case management order (CMO) governing NYCAL, plaintiffs' counsel are required to only e-file “a set of complaints containing standard allegations generally applicable to all claims of a similar nature” and “serve and e-file a short form complaint which incorporates by reference all allegations contained in the appropriate standard complaint.” The purpose of standardized pleadings in NYCAL cases is to expedite the resolution of cases and to minimize costs and we have acknowledged that the exceptional needs of asbestos cases and litigants. The NYCAL Coordinating Justice has the authority under Uniform Rules for Trial Courts (22 NYCRR) § 202.69 to issue a CMO or modify an existing CMO that sets forth procedural protocols for the NYCAL that do not strictly conform with the CPLR so long as those protocols do not deprive a party of its right to due process. Under these circumstances, plaintiffs have adequately pleaded claims for successor liability, as the allegations in the standard form complaints sufficiently put PB Heat on notice of their respective successor liability claims.

The First Department further upheld the trial court’s determination that the documentary evidence relied on by PB Heat did not conclusively refute all potential bases for successor liability.   The Court of Appeals recognized four exceptions to the general rule that a corporation is not liable for the torts of its predecessor, namely where (1) [the corporation] expressly or impliedly assumed the predecessor's tort liability, (2) there was a consolidation or merger of seller and purchaser, (3) the purchasing corporation was a mere continuation of the selling corporation, or (4) the transaction is entered into fraudulently to escape such obligations. PB Heat's documentary evidence -- which largely consisted of corporate formation, merger, acquisition, and dissolution records -- did not utterly refute the applicability of each of these exceptions, given the numerous discrepancies between PB Heat's representations of what the documents show as opposed to what they actually show. Further, given the closely held nature of several of the involved companies, issues of fact exist as to whether the reorganization that led to PB Heat's formation was contemplated to fraudulently extinguish the Peerless family of companies' liability for its asbestos-containing boilers.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]
Mark S. Nemeth
[email protected] 
Jesse L. Siegel
[email protected]
Stephen M. Sorrels
Michael J. Williams
[email protected]
Alice A. Trueman
[email protected]


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