Products Liability Pointers - Volume I, No. 11


Volume I, No. 11

Wednesday, November 18, 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



Remember last month when we were so excited to tell you about a return to jury trials in New York?  Well, like everything else in 2020, that was but a cruel joke as jury trials have again been suspended indefinitely due to an alarming increase in COVID-19 numbers.  I guess I am one of the few attorneys who can say they took a jury verdict in 2020, although pre-pandemic February 2020 seems like a generation ago.  It was a time of hugs, smiles not obscured by masks, and when “Corona” merely conjured up happy thoughts of beaches and lime wedges.  Thinking back on that trial, I shudder at the memory of my opponent coughing and wheezing his way through closing arguments (thankfully just a cold).  The Holiday gauntlet is nevertheless upon us, ever so challenging this year.  Despite the darkness and anxiety, we can all find things to be thankful for this year.  Being thankful and appreciative of all that we do have does not spread COVID, but large family gatherings just might.  Enjoy your holidays safely and responsibly, even if that means that once a year visit with extended family occurs via Zoom.  We are experts at it now.
We have a couple of cases this month that should be of keen interest to sporting goods retailers.  A negligent sale of ammunition claim survives a motion to dismiss on qualified immunity by the retailer.   Further, a repair to a crossbow by a retail clerk subjects the retailer to potential liability for injury.  And again, we report of deficient pleadings in surgical mesh litigation.
For this month’s Dad Joke:

Why did the pilgrim’s pants fall down?
Because his belt was on his hat.


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]

10/09/20       King v. Klocek and Cabela’s
Appellate Division, Fourth Department
Appellate court shoots down retailer’s claim of immunity in firearm ammunition sale.
The decedent plaintiff was shot and killed by defendant Klocek, allegedly with ammunition purchased from defendant Cabela's Inc. Cabela’s made a pre-Answer motion to dismiss, relying on the Protection of Lawful Commerce in Arms Act ([PLCAA] 15 USC § 7901 et seq.), which protects firearms manufacturers and dealers from being held liable when crimes have been committed with their products.
The Fourth Department affirmed the denial of Cabela’s motion to dismiss.  While the court agreed that this action falls within the PLCAA's general definition of a “qualified civil liability action," this definition does not include, among other things, an action brought against a seller for negligent entrustment or negligence per se or an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought. 
A Federal statute, 18 USC § 922(b)(1), prohibits the sale or delivery of ammunition "other than … ammunition for a shotgun or rifle" to anyone the seller or deliverer “knows or has reasonable cause to believe is less than twenty-one years of age.”  Further, a state statute, Penal Law § 270.00 [5], also prohibits the sale of ammunition “designed exclusively for use in a pistol or revolver” to anyone not authorized to possess a pistol or revolver.  Plaintiffs’ allegations, accepted as true, that defendant committed such offenses would establish that this action is not a qualified civil liability action and not subject to immediate dismissal.
Defendant contended that the court should have granted its request to take judicial notice of the purported fact that the ammunition sold to Klocek could be used interchangeably in rifles and shotguns, as supported by various commercial websites of firearm ammunition manufacturers and retailers. The Court rejected this contention, concluding that this purported fact is not capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy.


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

With the Covid-19 numbers going up around the country, holiday plans are being cancelled and pared down everywhere.  Although I will certainly miss seeing my extended family, especially all of the young nieces, nephews and cousins, I am looking forward to spending Thanksgiving at home with my wife and kids.  The lack of travel will be nice too.  The kids are excited to make our own hors d'oeuvres and I’m happy about having leftovers.  Open faced turkey sandwiches and maybe turkey soup?  Yum!     
Like many areas, the number of depositions and court conferences in the Metro NYC area have been steadily increasing since the end of the summer.  It seems everyone is back to work and making an effort to move cases forward.  Many courts have even been scheduling in-person conferences in the hope that our world will be back to normal soon.  However, as Chris mentioned above, jury trials are once again on hold due to the rise in Covid-19 infections.  Looks like we will continue to proceed virtually for the time being.  With the recent vaccine announcements, hope of a return to normalcy is on the horizon.
Although there were no manufacturing defect specific decisions to report on, we do have a brief products liability case to report on.  In Garrison v. Dick’s Sporting Goods, Inc., the Appellate Division found that a duty of care arose and that there was some evidence of negligence due to the defendant’s attempted repair of an allegedly defective product and thus, reversed the trial court’s grant of summary judgment on the negligence claim.
Happy Thanksgiving everyone.

10/22/20       Garrison v. Dick’s Sporting Goods, Inc.
Appellate Division, Third Department
Appellate Division finds defendant’s attempted repair of defective item to be evidence of potential negligence.
In this negligence and products liability case, the plaintiffs claimed that they were injured while shooting a defectively designed crossbow purchased from Dick’s Sporting Goods, Inc. (“Dick’s”).
Despite affirming the trial court’s refusal to permit the plaintiffs’ belated expert disclosure, the Appellate Division reversed the trial court’s dismissal of the plaintiffs’ negligence claim.  In reaching its decision, the Court relied on the plaintiffs’ deposition testimony in which they explained that they were injured in two separate incidents and that when the crossbow was returned to Dick’s after the first incident, a Dick’s employee attempted to repair it and gave it back to the plaintiffs.  The Appellate Division found that a duty of care arose when the employee chose to undertake the repair and the fact that the repair violated Dick’s return policy for defective or damaged items constituted some evidence of negligence.  As Dick’s failed to produce any evidence showing the plaintiffs’ testimony was untrue or that the employee’s actions played no role in the second malfunction, the Court held that Dick’s failed to establish its entitlement to judgment on the negligence claim as a matter of law.  Accordingly, the Court reversed the trial court’s grant of summary judgment to Dick’s on the negligence claim


Failure to Warn
By: Brenna C. Gubala

Well here we are post-election with Thanksgiving right around the corner.  It’s certainly been a wild ride, and it certainly continues with the election results. No matter what side you fall on, I think we can all agree to respect the process and take pride in our democracy. Record vote turnout is a win for all of us.
I am finding much to be thankful for despite all efforts of 2020. When you have your health and your job these days, it’s easy to feel like a king.  I am definitely grateful for litigation. I am also thankful to be running in the Turkey Trot, one of 125 randomly selected runners. Someone has to keep the tradition alive, that of the longest running foot race in America. It won't be the same without the crowds and the convention center party, or my family running with me, but then what has looked the same in 2020?
In this month's decisions, more decisions on mesh products claims!   Yet another case, another district court dismissing a complaint for failure to properly allege a failure to warn claim. It does seem that Courts have slowed down on decisions again.
Be well. Stay safe. Eat turkey. 

10/09/20     Krulewich v. Covidien, LP
U.S. District Court, Southern District of New York
Second attempt still did not “mesh” with the Court.
Plaintiffs commenced a strict products liability action claiming injuries from a surgically implanted mesh product as part of a hernia repair procedure. According to his 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, 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 he or his physician would not have chosen to use the mesh product. Thus, the failure to warn claim was dismissed.

Of note, the plaintiff brought the following claims (1) manufacturing defect; (2) design defect; (3) failure to warn; (4) negligence; (5) breach of express warranty; (6) breach of implied warranty; (7) negligent misrepresentation; (8) fraudulent misrepresentation; (9) unconscionable commercial practices; (10) unjust enrichment; (11) punitive damages; and (12) loss of consortium. All were dismissed.

Significantly, the Court denied plaintiff’s request for leave to amend the Second Amended Complaint reasoning further leave to amend would cause undue prejudice to the defendant because it would force Covidien to continue litigating a claim for which the plaintiffs had no legal basis.


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

Hope all is well! I have two cases for you this month out of the Fourth Department. First, a case where the defendant manufacturer tried to set aside a jury’s verdict after a determination that their product caused mesothelioma in the decedent. Next, a case between insurance carriers discussing when an asbestos-related injury occurs for the purpose of a policy trigger.
This month’s trivia facts:

  1. Bubble wrap was originally intended to be wallpaper. Check out a brief history of bubble wrap here!
  2. Vatican City is the smallest country in the world in both population and size.
  3. John Tyler, born 1790, 10th President of the U.S., had the most children of any other president (15). He currently has one living grandchild, Harrison Tyler, who was born in 1928.

10/09/20         Stock v. Jenkins Bros. et al.
Appellate Division, Fourth Department
Appellate court takes stock in jury’s asbestos causation verdict
After trial, the jury returned a verdict finding that decedent was exposed to asbestos products made by Jenkins Bros., that Jenkins Bros. failed to exercise reasonable care by not providing a warning about the hazards of exposure to asbestos with respect to its products, and that its failure to warn was a substantial contributing factor in causing decedent's injuries. Jenkins Bros. moved to set aside the jury’s verdict. The Appellate Division determined that, contrary to Jenkins Bros. contention on its appeal, the evidence was legally sufficient to establish that asbestos in products it manufactured was a substantial factor in causing or contributing to decedent's injuries. The decedent testified at trial that, while performing work involving component parts of Jenkins Bros. products, i.e., gaskets and packing, he was exposed to visible asbestos dust on a routine basis. In addition, his expert opined that, based in part on her review of studies of workers involved in tasks similar to those performed by decedent, decedent's exposure to such visible dust was a substantial contributing factor to the development of his mesothelioma. This was enough to establish specific causation for the jury to find against Jenkins Bros.

10/09/20         Carrier Corp. v. Allstate Ins. Co.
Appellate Division, Fourth Department
A case of first exposure: Insurance carriers battle to define date of injury in asbestos claim.
Plaintiffs commenced this declaratory judgment and breach of contract action seeking declarations of the rights and obligations of the parties under liability insurance policies issued by various insurers, including excess policies. The defendants contend, in part, that the court erred in granting the plaintiffs' motion for partial summary judgment declaring that injury-in-fact in an asbestos action occurs from the date of first claimed exposure through death or the filing of suit, thereby triggering each policy in effect from the date of first claimed exposure. The subject excess policies obligate the defendant to indemnify the insured for its ultimate net loss in excess of an umbrella policy, which covers personal injuries caused by or arising out of an occurrence.
Here, the parties dispute when an asbestos-related injury actually begins. Plaintiffs assert that injury-in-fact occurs upon first exposure to asbestos, while defendant instead maintains that injury-in-fact occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body's defense mechanisms. The Court determined that summary judgment was not appropriate in this case, because even if plaintiffs met their initial burden on the motion by submitting evidence in admissible form that asbestos-related injury actually begins upon first exposure, the defendant raised a triable issue of fact in opposition. In particular, defendant submitted the affidavits of two medical experts contradicting the claim that damage from asbestos occurs immediately after initial exposure and averring instead that harm occurs only when a threshold level of asbestos fiber or particle burden is reached that overtakes the body's defense mechanisms.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Brenna C. Gubala

Marina Barci
[email protected]


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