Products Liability Pointers - Volume I, No. 10


Volume I, No. 10

Wednesday, October 21, 2020
A Monthly Electronic Newsletter


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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



It’s Halloween season, and my kids are surprisingly fine with a socially distant no trick-or-treating holiday.  After bracing freezing rain and sleet the past few years, I guess there is something to be said for simply sitting on the couch while your parents shower you with candy.  My daughter is going with a Harry Potter themed “random girl from Hogwarts, but not Hermione.”  My boys are going as Buffalo Bills quarterback Josh Allen, and Miami Dolphins quarterback Ryan Fitzpatrick.  Drew is too young to know about the heated Buffalo-Miami rivalry of the 1990’s (“Squish the Fish!”), or the fact that the Bills went 0 for the 1970’s against Miami.  Well, at least its Fitzy, who cites Buffalo as his favorite NFL city, and will always hold a special place in the hearts of Bills fans, no matter what team he plays for. 
Litigation is certainly picking up.  New complaints are being filed, and the courts and counsel are becoming more comfortable with remote proceedings.  New York courts are experimenting with limited jury trials.  Scroll down for Brenna Gubala’s column to find out the winner of our office pool predicting the date the first jury is seated in Erie County.  A jury trial is a lot of work and effort for the court system, as evidenced by the scolding a plaintiff’s attorney I know received from the OCA by settling a case after “heaven and earth” was moved to bring in a jury for the trial.
Don’t forget to check out our Child Victims Act Coverage and Defense and COVID-19 Legal Center resource pages, as well as our other newsletters highlighted below.
We have an interesting array of decisions this month.  A warnings case involving whether “Goof Off” is a “hazardous substance” within the meaning of the Federal Hazardous Substance Act.  A District Court denying a default motion against a foreign manufacturer for failure of plaintiff to establish jurisdiction over the Chinese company.  A manufacturing defect claim was permitted to proceed against the manufacturer of a step stool that had been owned and used by plaintiff for three years.  There is also a battle as to whether an asbestos tort claim can survive the defendant’s bankruptcy filing. 
Enjoy, stay safe, and VOTE!
For this month’s Dad Joke, it’s a familiar one, but my son’s favorite.  If I published his joke, he promised that he would consider wearing his Buffalo Bills Fred Jackson jersey for Halloween instead of the Dolphins:
Who did the ghost take to the Halloween dance?
His ghoul-friend.


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. Coverage Pointers, the electronic newsletter that started it all, continues to offer guaranteed publication every other Friday, and a read-at-a-glance summary of important decisions as they happen. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Employment & Business Litigation Pointers: Our latest newsletter! Employment & Business Litigation Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments.  Contact Joe Brown at [email protected] to be added to the mailing list.

Labor Law Pointers:  Hurwitz & Fine, P.C.’s 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. This e-mail direct newsletter is published the first Wednesday of each month on four distinct areas – New York Labor Law Sections 240(1), 241(6), 200 and indemnity/risk transfer. Contact Dave Adams at [email protected] to subscribe.

Medical & Nursing Home Liability Pointers:  Hurwitz & Fine, P.C.’s newest legal alerts contain timely news on the impact of COVID-19 on medical and nursing home liability claims.  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. Our attorneys must stay abreast of new cases and trends across New York in both State and Federal Court, and will now share their insight and analysis with you. This publication covers a wide range of topics including retail, restaurant and hospitality liability, slip and fall accidents, snow and ice claims, storm in progress, inadequate/negligent security, inadequate maintenance and negligent repair, service contracts, elevator and escalator accidents, swimming pool and recreational accidents, negligent supervision, assumption of risk, tavern owner and dram shop liability, homeowner liability and toxic exposures (just to name a few!).  Contact Jody Briandi at [email protected] to be added to the mailing list.


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

09/03/20         Hunter v. Shanghai Huangzhou, et al.
U.S. District Court, Northern District of New York
Despite not appearing in the action, foreign manufacturer of electric heater avoids default judgment based on lack of jurisdiction.

It was alleged that the infant plaintiff suffered serious and lasting injuries due to a defect in a portable heater that caused it to generate a dangerous level of heat.  A number of defendants named in action are located in foreign countries, including, the Shanghai Huangzhou defendants located in Shanghai, People's Republic of China.  To effectuate service of the on these defendants, plaintiffs retained Civil Action Group, d/b/a/ APS International, Ltd. (“APS”), an organization specializing in service of process on foreign entities pursuant to the Hague Convention.  After waiting nearly a year for an appearance by these foreign defendants, plaintiffs moved for a default judgment.
The District Court denied the default for the fundamental reason that the Complaint failed to allege facts sufficient for the Court to determine that it may exercise personal jurisdiction over the Shanghai Huangzhou defendants. Plaintiffs’ only allegations addressing the Shanghai Huangzhou defendants’ connections to New York allege that all defendants, as a group, “regularly do business in New York State and derive substantial revenue from goods sold and used in New York State and in interstate and international commerce,” and that they “supplied and sold goods and services to individuals and businesses located in New York State, including the Home Depot Store” at which the heater was purchased. Such conclusory statements are essentially just restatements of the relevant legal standards and are insufficient to establish jurisdiction.
The Court did deny the motion without prejudice, however, permitting plaintiffs to the renew the default motion within thirty days with further evidence and a memorandum of law addressing whether this Court has personal jurisdiction over the Shanghai Huangzhou defendants.


Manufacturing Defects
By: Brian F. Mark
[email protected]

My family has been taking walks in the woods near our house as often as possible.  It’s great to see the leaves changing color and the kids need the exercise as they spend a lot of time sitting stationary on electronic devices.  Even my wife, who is not very outdoorsy, has enjoyed our walks.  It has been a welcome break from the almost daily Zoom and Skype meetings.      
Virtual meetings and conferences are still the preferred choice of the courts in the Metro NYC area.  Not only are the virtual appearances picking up, but we continue to see an increased number of depositions being conducted.  Now that the summer is over, even if it was a weird one, courts and attorneys have resumed moving cases along.  Traffic has also picked up, but thankfully I still have no place to go.
In this edition, we have one case involving a manufacturing defect claim to report on.  In Gambardella v. Tricam Industries, Inc., the Court found the plaintiff’s testimony that she had used the subject product numerous times without incident sufficient to create an issue of fact relative to her manufacturing defect claim.

09/16/20         Gambardella v. Tricam Industries, Inc.
U.S. District Court, Southern District of New York
U.S. District Court finds plaintiff’s testimony sufficient to create issue of fact as to manufacturing defect claim.
In this products liability case, the plaintiff alleged claims for design and manufacturing defects, failure to warn, and breach of warranty arising from a stepstool manufactured by the defendant, Tricam Industries, Inc. (“Tricam”).  The plaintiff claims that she was injured as a result of falling off of the stepstool, which was found to have one of its legs bent inward upon inspection after the incident.  The subject stepstool was purchased a few years before the alleged accident from the co-defendant, Home Depot U.S.A., Inc., and was used about thirty times per year without incident.  Prior to her accident, the plaintiff had stood on the stepstool under the same circumstances as previously used for seven to ten seconds before hearing a snapping sound and falling from the stepstool.
In order to establish a claim for a manufacturing defect, “the plaintiff must prove that the product failed to perform in the intended manner due to a flaw in the manufacturing process.”  “In other words, a manufacturing flaw exists when the unit in question deviates in quality and other performance standards from all of the other identical units.”
The Court found that the plaintiff raised a genuine issue of material fact as to whether the stepstool had a manufacturing defect such that her stepstool was defective relative to other stepstools of the same model.  The Court noted that although plaintiff failed to adduce “direct proof of a defect in the ladder,” her own account of the accident provided “circumstantial evidence that the product did not perform as intended.”
The Court further noted that although the defendants offered an alternative basis for the accident, that the plaintiff lost her balance and fell, a reasonable factfinder could credit the plaintiff’s testimony that she previously used the stepstool without issue and she was standing on it the day of the accident for several seconds before hearing a snapping sound.  This could “permit the jury to infer that the product was defective and did not perform as intended, without the need of a plaintiff's expert.”
Accordingly, the defendants’ motion for summary judgment on the plaintiff’s manufacturing defect claim was denied and the claim was permitted to proceed.


Failure to Warn
By: Brenna C. Gubala

Happy Fall Y’All.  I hope you’re getting plenty of time out in the pumpkin patch and vividly colored trees this season since fall only lasts a few weekends.  I hope you’re able to have outdoor visits with friends and family before temperatures drop too.
Things are picking up in litigation. Jury trials are being scheduled, although none have actually gone forward in Erie County. We had an office pool and were mostly surprised that the first jury was picked and seated on September 15, 2020 (although the case settled prior to proof).  Using “Price is Right” rules, Lee Siegel was declared the winner with his selection of “on or before October 5th.”  Despite living and working in Connecticut, Lee apparently has a better handle on the Western New York courts than us Buffalo litigators…
In this month's decisions, more determinations on mesh products claims!  Another case, another district court dismissing a complaint for failure to properly allege a failure to warn claim. Another claim is dismissed at the summary judgment stage after the plaintiff admitted she never read the warnings provided. Should have seen that one coming.
Be well. Go Vote.

10/09/20     Dunham v. Covidien, LP
                     Krulewich v. Covidien, LP
U.S. District Court, Southern District of New York
Second attempt still did not “mesh” with the court.
Plaintiff commenced a strict products liability action claiming injuries from a surgically implanted mesh product as part of a hernia repair procedure. According to her second Amended Complaint, plaintiff alleged the defendant manufacturer Covidien failed to warn that a number of instructions, brochures, advertisements, and public warnings were allegedly ambiguous, not sufficient, accurate, or clear.

The claim for failure to warn in the first Amended Complaint failed because plaintiff did not provide factual support for conclusory statements. Plaintiff simply alleged, “Plaintiff and plaintiff’s physicians were not provided adequate warnings” and the warnings “were not sufficient, accurate, or clear.”

Plaintiff added allegations that the defendant failed to warn that: the product did not provide long term reinforcement of soft tissue while minimizing tissue attachment; that the product's mesh contracts over time, causing tension to increase where the sutures secure it and causing eventual tear of the product's mesh, which is exactly what happened to plaintiff's product's mesh; that the defendant “misrepresented to the medical community that the product was safe and effective” and “improperly minimized the adverse effects associated with the product's use” despite “numerous reports documenting serious adverse events associated with the product”; that “Covidien's brochure for the product provides very minimal amount of information for the general public or the medical community regarding adverse effects, serious risks of physical injury, or warnings of same, that it knew was associated with the product and its use”; and that plaintiff's physicians would not have elected to use Covidien's product if it had been equipped with sufficient warnings, including the possibility for the product's mesh migration, failure, and need for future surgeries.

The Court found that the additional allegations did not cure the defects in plaintiff’s initial failure to warn claim. The new allegations still did not identify how the warnings were insufficient to warn physicians. Significantly, the warnings did include the risk of complications that plaintiff actually suffered. Further, plaintiff does not allege but for the allegedly inadequate warnings she or her physician would not have chosen to use the mesh product. Thus, the failure to warn claim was dismissed.

9/29/20 Figuero v. W.M. Barr
U.S. District Court, Southern District of New York
No goofing off here.
Plaintiff brought an action against W.M. Barr & Company based on her use of defendant’s product Goof Off Pro Strength Remover that she was using to remove glue from her floor when a fire ignited. The Goof Off can contains this warning in red against a yellow background:
The other side of Goof Off contains this warning in black and red print in English and Spanish:
Do not apply to floors or spread the product over surface areas greater than 1 sq. foot because fire and health safety risks will increase dramatically. DANGER! EXTREMELY FLAMMABLE VAPORS MAY CAUSE FLASH FIRE OR IGNITE EXPLOSIVELY. KEEP AWAY FROM HEAT, SPARKS, FLAME AND ALL OTHER SOURCES OF IGNITION. Extinguish all flames and pilot lights, and turn off all stoves, heaters, electric motors and all other sources of ignition during use and until all vapors are gone. USE ONLY WITH ADEQUATE VENTILATION TO PREVENT BUILDUP OF VAPORS. Do not use in areas where vapors can accumulate and concentrate such as basements, bathrooms and small, enclosed areas. If using indoors open all windows and doors and maintain a cross ventilation of moving fresh air across the work area. *** IF THE WORK AREA IS NOT WELL VENTILATED, DO NOT USE THIS PRODUCT.
Defendant Goof Off moved for summary judgment which the Court granted. Plaintiff admitted she did not read the warning label. She poured Goof Off onto the floor instead of applying it to a cloth to blot or rub onto a spot. She poured Goof Off on an area measuring 2.75 by 4 square feet. She did not turn off the gas to her stove or extinguish the pilot light. She opened a single window in the kitchen.
The Court dismissed the failure to warn claim on proximate cause grounds.  Since she admitted to not reading the label, the failure to warn could not be the proximate cause of her injuries. In addition, plaintiff used the product in a way that Goof Off labels expressly warned against. The label specifically instructed the user to extinguish all flames and pilot lights” and turn off all stoves, which plaintiff admitted that she did not do prior to using the product. Plaintiff spread the Goof Off product over a surface area of the floor greater than one square foot. Plaintiff did not apply the Goof Off with a cloth and then blot or rub until the glue came off, but rather poured the Goof Off onto the floor directly and used a metal scraper. Thus Goof Off’s alleged failure to warn was not the proximate cause of her injuries. 
The Court noted that although the defendant asserted that Goof Off is a “hazardous substance,” and as such, her warning claims are preempted by the Federal Hazardous Substances Act, the defendant failed to provide sufficient evidence in the record to support this assertion.   Nevertheless, the plaintiff cannot establish that the alleged failure to warn, rather than her own failure to read the label, was the proximate cause of her injuries. 


Toxic Torts, Asbestos, and Lead Paint
By: Marina A. Barci
[email protected]

Hope all is well! There is just one toxic tort case of note this month involving a claim against the Johns-Manville bankruptcy trust, in which the plaintiff attempted to argue that her exposure to asbestos wasn’t until after the bankruptcy plan was confirmed.
This month’s trivia facts:

  1. A group of flamingoes is called a flamboyance.
  2. The pluot is a hybrid between a plum and an apricot.
  3. Martin Luther King Jr. and Anne Frank were born the same year (1929).

09/30/20         Berry v. Graphic Packaging International, Inc., Applebee
U.S. District Court, Southern District of New York
Bankruptcy petition bars claims related to asbestos exposure pre-petition.
The plaintiff contracted mesothelioma from laundering her husband’s clothes when he came home from work at a Mill. At the time plaintiff’s husband worked at the Mill, it was owned by a company that ultimately merged with Johns-Manville Corporation in 1979. In 1982, Johns-Manville and its affiliates filed for bankruptcy. Plaintiff brought this action against the Mill in 2015, which was stayed by petition of the Manville defendants to enforce the bankruptcy plan and stop plaintiff’s lawsuit. In 2016, the bankruptcy court granted the Manville defendants motion to dismiss plaintiff’s claims. The court stated that the Manville bankruptcy plan complied with potential injured parties due process rights by giving notice of the bankruptcy proceedings and a cutoff date, as well as incorporating a design to treat both present and future asbestos claimants equally in the Manville Trust. The injunction that the plan provides applies to any suit, claim, interest or other asbestos obligation. The court found that plaintiff’s claim was subject to the injunction as an “other asbestos obligation,” which is defined by the plan as asbestos-related health liability caused by pre-bankruptcy petition exposure to Manville asbestos, regardless of when the individual develops clinically observable symptoms. Asbestos claims arise at the time of exposure, rather than the time the injury manifests. Thus, since plaintiff was exposed to asbestos before the bankruptcy petition date, she held a claim at the time the petition was filed and is now enjoined from bringing a claim. This is a legal ruling from the bankruptcy court based on undisputed evidence of when the plaintiff’s first exposure to asbestos occurred, therefore she was not denied due process with respect to a personal injury claim.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Brenna C. Gubala

Marina Barci
[email protected]


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