Products Liability Pointers - Volume I, No. 12


Volume I, No. 12

Thursday, December 17, 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

I think it is a safe assumption that we are all ready to kick 2020 to the curb.  While 2020 brought a host of calamities for all of us, personally and professionally, there is plenty to be thankful for, and many reasons to be hopeful and optimistic for a much brighter 2021.  One casualty of 2020 was our office Holiday party, where our attorneys and staff from throughout the state truck on down to Buffalo for a swanky and festive in-person affair.  Not this year of course, so we have been trying spread the holiday cheer through Zoom activities.  Some “lucky” staffers won a lovely “Santa Cuomo” window sticker to watch over their household celebrations. Our litigation department had a contest for worst present given or received, and submissions were read anonymously by other members of the department.  Quite frankly, there were a lot of gifts that signaled a looming romantic break-up.  Some entries were downright hilarious, including a “lucky” rabbit’s foot to a sister-in-law that had just adopted a rabbit, kids superhero coloring books to a 30-year-old lawyer son-in-law, and a wrapped charcuterie plate that was left to go rancid under the tree.  Others were simply strange and sad, such as a bottle of mosquito repellant, a crystallized honey bear bottle, and the winning entry, a single bag of microwave popcorn.  My personal favorite however was submitted by our own Brenna Gubala.  As a young child, Brenna was conflicted on what to ask Santa for Christmas, so she put a “?” on her wish list.  Low and behold, she opened her present on Christmas morning to find a carboard cut-out of a “?”.  She was not amused.

A big congratulations to our newest-attorneys-to-be Nick Heintzman (Litigation) and Daniel Mattle (Insurance Coverage) on passing the bar during this difficult year. 
We do have some good cases to review this month, including a collapsed movie theater seat addressing the pesky doctrine of res ipsa loquitur, a discovery dispute involving “destructive testing” of the alleged offending product, and the liability of a major on-line retailer over the sale of an allegedly toxic food substance. 
We would like to thank all of our readers and subscribers for your support in 2020 and wish you a happy and safe holiday season!  We have some great things in store for 2021, including articles, trainings, and webinars.  Stay tuned!



For this month’s Dad Joke:

Where can a reindeer get a new tail?
A re-tail store.
Your COVID-19 Resource Center: Legal Updates Regarding the Coronavirus
Our teams are hard at work keeping you updated on the latest New York State and Federal updates concerning the coronavirus. Our Resource Center compiles all of the information that could affect you and your business during this pandemic.
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]

11/12/20         Coakley v. Regal Cinemas, Inc.  
Appellate Division, Second Department
Res Ipsa claim collapses over issue of exclusive control over defective movie theater set.

The plaintiff allegedly sustained injuries while attending a movie in Queens when the seat of her chair collapsed after she had been sitting in it for approximately 30 minutes. The plaintiff commenced an action against the owners and operators of the movie theater, the installer of the chairs at the theater, and the manufacturer and distributor of the chairs.
While the Court held that the manufacturer/distributor established its prima facie entitlement to summary judgment dismissing the strict products liability cause of action, in opposition, the plaintiff was able a raise a triable issue of fact to deny the motion. The manufacturer/distributor was however successful in obtaining a dismissal of the claim premised on the doctrine of res ipsa loquitor.   The res ipsa doctrine permits the finder of fact to infer that the defendant was negligent simply from the very nature of how the accident or injury occurred, shifting the burden to the defendant to prove the absence of negligence.  To establish a prima facie case of negligence under the doctrine of res ipsa loquitur, a plaintiff must establish that (1) the event is of a kind that ordinarily does not occur absent negligence; (2) the event was caused by an agency or instrumentality within the exclusive control of the defendant; and (3) the plaintiff did not voluntarily create or contribute to the event.  Here, the manufacturer/distributor was able to defeat this claim by establishing that it did not have exclusive control of the allegedly defective chair in the theater. 

11/30/20         Bozick v. Conagra Foods, Inc.  
U.S. District Court, Southern District of New York
Plaintiff’s arguments against destructive testing of allegedly defective spray can do not make the cut.
Plaintiff alleges that while she was at home in the process of preparing and serving a meal, a canister of PAM cooking spray unexpectedly and without notice caused a fiery explosion in her kitchen.  The subject can contained warnings that it should be stored at room temperature and should not be placed on the stove or near a heat source. Plaintiff claims that the can was resting on a countertop away from the heat when it exploded. Plaintiff's theory of the case is that the can prematurely buckled and vented at room temperature rather than being overheated because it was manufactured grossly out of specifications in that the bottom of the container was made from steel that was too thin in comparison to the material specified for the can.
Defendants sought to have an independent laboratory examine the subject can and measure the thickness of the can bottom to rebut the allegation that the can buckled because the steel was too thin. The measurement would require the laboratory to cut into the bottom of the can and thus would destroy its integrity.  The defense moved for an order permitting them to conduct limited destructive testing of the PAM spray canister that is evidence in this case.  The Court addressed a four-part test to determine whether to permit destructive testing of evidence:
1) Whether the proposed testing is reasonable, necessary, and relevant to proving the movant's case; 2) Whether the non-movant's ability to present evidence at trial will be hindered, or whether the non-movant will be prejudiced in some other way; 3) Whether there are any less prejudicial alternative methods of obtaining the evidence sought; and 4) Whether there are adequate safeguards to minimize prejudice to the non-movant, particularly the non-movant's ability to present evidence at trial.
The District Court agreed with the defendants' argument that each element of the test is met. The testing is directly relevant to plaintiff's theory that the subject can may have been made with steel that was too thin, and not within design specifications, and there is not an alternative way to take the proposed measurements other than by cutting into the can. As to the prejudice to the non-movant and their ability to present evidence at trial, defendants note that plaintiff has photographs of the can as it currently exists and that only the bottom of the can will be cut. The remainder of the can will be available for use and there is no probative value of the unmeasured can bottom.


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

As the pandemic continues to disrupt our lives, the upcoming holidays are sure to be different than years past.  Celebrations will be low key and unfortunately, we will all see fewer friends and family than normal.  While I would be fine with a repeat of Thanksgiving as the food we made was fantastic, I think we will aim for less time cooking and consuming, and more time relaxing.  I hope that all of our readers and their loved ones have a safe and enjoyable holiday and new year.
With a somewhat rare snowstorm hitting the Metro NYC area this week, most of the courts sent out notifications that they would be limited to virtual appearances due to the weather.  As everything is virtual these days anyway, and we are all pretty much working remotely, the storm really had no impact on anything.  I guess I can sympathize with my kids now, as a “snow day” no longer means no school, just another day of virtual learning.
With the end of a strange year getting closer and courts slowing down, I only have one case involving a manufacturing defect claim to report as we re-visit Hunter v. Shanghai Huangzhou Electrical Appliance Manufacturing Co., Ltd., in which the U.S. District Court for the Northern District of New York examined the requirements for obtaining a default judgment over a foreign company in a products liability action, which included a manufacturing defect claim, ultimately denying the motion without prejudice to allow for the resolution of the claims against the actively litigating defendants.
Till next year …

12/07/20         Hunter v. Shanghai Huangzhou, at al.
U.S. District Court, Northern District of New York
District Court re-examines default judgment motion in a products liability claim against foreign entity, ultimately delaying the motion until the claims against the participating defendants are resolved.
In this products liability action, the plaintiffs sought, and were initially denied, a default judgment against the foreign defendants due to their failure to appear.  The Court had previously found that the complaint contained only conclusory statements and failed to allege facts sufficient for the Court to determine that it may exercise personal jurisdiction over the Shanghai Huangzhou defendants.
The plaintiffs renewed their motion by submitting more specific allegations supporting their argument that the Court may exercise personal jurisdiction over the foreign defendants, including specific allegations that gave the Shanghai Huangzhou defendants notice that plaintiffs alleged they were at least partially responsible for the design and manufacturing defects alleged.  While the supplemental submission satisfied the Court that it could exercise personal jurisdiction, the Court then assessed whether it should enter a default judgment.  The defendants that had appeared in the action, namely the domestic retailer Home Depot, argued that a default judgment and subsequent determination of damages should wait until the action is resolved against the remaining defendants.
Despite its finding that the allegations asserted by the plaintiffs sufficiently stated claims for negligence and strict liability under design and manufacturing defect theories, the Court acknowledged that there were good reasons to delay the determination of damages until the action is resolved against the remaining defendants, namely the risk of inconsistent judgments.  Noting that the plaintiffs have met all the necessary prerequisites to entering a default judgment as to liability against the Shanghai Huangzhou defendants, and that those defendants have forfeited their right to contest their liability in future proceedings, the Court denied the plaintiffs’ motion without prejudice with leave to refile after resolution of the claims against the actively litigating defendants.


Failure to Warn
By: Brenna C. Gubala

Happy Hannukah, Merry Christmas, and a Happy New Year. There is much to be grateful for this year despite the many perils of 2020. My 3-year-old daughter told me she is most excited for Jingle Bells this Christmas – so even though I’m not sure she fully grasps what’s going on, it’s a happy time to celebrate.  It is exciting to think that 2021 is just around the corner though and with it the glimmer of hope in the form of soon to be accessible vaccines. 
This month I discuss a decision involving the potential for liability of an on-line retailer that I am sure we have all become too intimately familiar with this year.  A District Court granted Amazon’s motion to dismiss a claim based on false advertising/failure to warn created by the third-party product manufacturer, relying on the immunity provisions of the Communications Decency Act, 47 U.S.C. § 230.
Be well, stay safe, and if you can, shop local! 

11/30/20     Brodie v. Greenspot Foods, LLC, Services LLC
U.S. District Court, Southern District of New York
Amazon let off the hook.
Plaintiff commenced an action against Green Spot Foods, LLC (“Green Spot”) and Services LLC (“Amazon”) for injuries she sustained after ordering a product called “Better than Pasta” on Amazon, eating it and sustaining injuries. Amazon moved to dismiss the negligence, breach of implied and express warranties, deceptive practices, and false advertising claims, including failure to warn.
Green Spot manufactures, packages, advertises, and sells pasta substitutes whose main ingredient is a root plant called Konjac. The U.S. Food and Drug Administration (“FDA”) bans certain foods containing Konjac and issues warnings about its risks. Apparently, it is well known that Konjac swells from its original size and may become indigestible. Why it is served in food products remains a mystery to this writer. The “Better than Pasta” packaging contains nothing about the purported risks of consuming Konjac however. It does advertise that the food is made from an ancient Japanese plant called Konjac.
The complaint alleges that Green Spot created all advertising for the “Better than Pasta” product, and Amazon marketed and advertised the product on its website.
Amazon moved to dismiss the false advertising and failure to warn claims on two grounds. One, that Amazon does not create the advertising serving as the basis of the claim and therefore there is no causal connection between the injury and Amazon’s alleged misrepresentation. Two, Amazon contends the claims are preempted by the Communications Decency Act ("CDA"), 47 U.S.C. § 230.
The District Court determined that the CDA bars recovery. The CDA states that no provider of an interactive computer service shall be treated as the publisher of any information provided by another information content provider. Immunity applies if the defendant is (1) a provider or user of an interactive computer service, (2) the claim is based on information provided by another information content provider and (3) the claim would treat [the defendant] as the publisher or speaker of that information.
The issue is whether Amazon may be considered an information content provider with respect to “Better than Pasta” advertising content. Significantly, plaintiff did not allege that Amazon exercised its-licensed-for control to alter or modify advertising materials received from Green Spot.  Thus, the false advertising and failure to warn claims were dismissed.
Of note, Second Circuit has not yet addressed the application of CDA immunity to on-line retailers such as Amazon. There is a general consensus however among other circuits that the CDA should be construed broadly in favor of immunity and a defendant is only deemed a content provider if it developed content by “materially contributing to what made the content itself unlawful.” 


Toxic Torts, Asbestos, and Lead Paint
By: Marina A. Barci

Hope all is well! The holiday season is upon us and I hope you all are enjoying the festivities that go along with it safely. We are fully decorated and almost completely present-wrapped in my house, where we celebrate Christmas. I am waiting on three items to be delivered and then it is on to cookie-baking! I usually set aside a weekend to bake, but this year we’ve decided to split it up into a few days, so fingers crossed that the cookie-decorating fatigue won’t set in too quickly!
For this month’s trivia facts:
1. Jingle Bells was originally written in honor of Thanksgiving.
2. The U.S. declared Christmas a national holiday in 1870.
3. Traditionally, food cooked in oil, like latkes and donuts, are eaten during Hanukkah.
I have one asbestos case for you from the SDNY where one of the defendant-manufacturers attempts to exclude or limit some of the plaintiff’s expert witness’s testimony on asbestos exposure and specific causation. The Court gives in-depth explanations for denying the request to exclude the two asbestos causation experts using the Daubert standard assessing the admissibility of expert evidence. As a reminder, under Federal Rule of Evidence 702, a witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify if:

(a)        the expert's scientific, technical, or other specialized knowledge will help the trier of fact to 
understand the evidence or to determine a fact in issue;
(b)        the testimony is based on sufficient facts or data;
(c)        the testimony is the product of reliable principles and methods; and
(d)        the expert has reliably applied the principles and methods to the facts of the case.

Under Daubert, the court, in analyzing the admissibility of expert testimony under 702, has a “gatekeeper function” to determine whether the expert’s specialized knowledge will assist the trier of fact, and is reliable and relevant based on the scientific principles and methodology used.

11/30/20          Phelps v. Viacom, Inc., et al.
United States District Court, S.D.N.Y
In a challenge to plaintiff’s experts on causation from asbestos exposure, court parses definitions of “every exposure” and “cumulative exposure” theories to permit testimony.
Decedent allegedly developed mesothelioma as a result of exposure to the defendants’ asbestos-containing products while working as a coppersmith apprentice at the Brooklyn Navy Yard. Defendant Crane Co. brought a motion to exclude or limit the testimony of plaintiffs’ expert causation witnesses: Mr. Steven Paskal, an industrial hygienist who would testify about the decedent’s potential asbestos exposure at the Brooklyn Navy Yard; and Dr. David Zhang, who sought to provide testimony linking the decedent’s asbestos exposure to his mesothelioma.
Crane Co. argued that the plaintiff's industrial hygienist expert, Mr. Paskal, who opines in his report on the potential ranges of asbestos exposure experienced by the decedent, should be excluded. Mr. Paskal formed the opinion that, based on the decedent’s experience of sharing enclosed airspaces with workers engaged in removing asbestos-containing materials, the decedent would have incurred asbestos exposures that ranged from hundreds to millions of times greater than (and in addition to) ambient pollution levels in even the most polluted areas and that each of these exposures substantially increased his risk of contracting mesothelial cancer. Crane Co. argued that Mr. Paskal did not have sufficient information about the work practices at issue because the decedent testified that he was only able to guess at the circumstances under which workers removed the asbestos-containing material. The Court determined that the decedent’s testimony on the removal work could be interpreted in different ways and thus it was a matter for the jury to resolve. Additionally, since Mr. Paskal’s opinions will be based on testimony by both the decedent and the plaintiff's naval expert, as well as relying on peer-reviewed scientific literature in opining on exposure levels, Crane Co.’s motion to exclude Mr. Paskal's testimony was denied.
Crane Co. also moved to limit the testimony of plaintiff’s medical expert on the issue of specific causation, and whether Crane Co.’s products were a substantial factor in causing the decedent’s mesothelioma. Crane Co. did not challenge Dr. Zhang's findings as to general causation, in which he links the decedent’s asbestos exposure to malignant mesothelioma, or Dr. Zhang's assertion that the decedent’s exposure to asbestos-containing products from his time working at the Brooklyn Navy Yard caused his mesothelioma. However, Crane Co. raised two arguments regarding whether Dr. Zhang's testimony as to specific causation should be precluded. First, Crane Co. argued that Dr. Zhang should not be permitted to offer any specific causation testimony because he did not perform a Crane Co. specific analysis and because his expert reports did not specifically disclose opinions related to Crane Co.’s products. The Court was unpersuaded by this argument as it is commonplace to have expert witnesses testify to his or her opinion based on a set of assumed facts elicited elsewhere in the record.
Second, Crane Co. argued that Dr. Zhang's methodology is unreliable because it hinges on an “every exposure” theory – that is, that every exposure the decedent had to asbestos-containing material was a “substantial factor” in causing his disease. Plaintiff argued that Crane Co. mischaracterized Dr. Zhang’s theory, which is that rather that positing that each and every asbestos exposure causes disease, Dr. Zhang asserts that there is no known safe level of asbestos exposure while stating that a cumulative exposure to asbestos is a substantial contributing factor to mesothelioma. Courts are split on whether the “every exposure” theory and the “cumulative exposure” theory are the same. However, a recent case noted that the cumulative exposure theory is not a “rewording” of the “every exposure” theory, focusing on the determination that “any exposure above background ... increases [a] person's risk of developing mesothelioma” rather than finding that any exposure “above background causes mesothelioma, no matter the type or the dose.” Here, Dr. Zhang’s written report explains the Helsinki Criteria as the relevant factors for considering whether exposure to asbestos has caused mesothelioma in a particular case, and Dr. Zhang applies that analysis to the decedent’s case. Thus, the Court concluded that Dr. Zhang’s application of the “cumulative exposure” theory in this case evinces a sufficiently reliable methodology and Crane Co. may challenge Dr. Zhang's application of that methodology on cross-examination, but those challenges go to the weight of his testimony and not its admissibility. Thus Crane Co.’s motion to exclude Dr. Zhang’s testimony was likewise denied.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]


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