Products Liability Pointers - Volume I, No. 2


Volume I, No. 2

Wednesday, February 19, 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



This week we lead off with big firm news as Hurwitz & Fine has selected our next Managing Partner, Jody Briandi!
Hopefully, many of you know Jody from working with her in the past, and as our resident expert on Premises Liability. Jody also leads our 24-Hour Emergency Response Team, Retail & Hospitality Liability, and Trucking & Commercial Transportation practice groups.
Jody marks only our third change in management in Hurwitz & Fine’s 43-year-history, and we are so proud of her accomplishments and are fortunate to have her leadership as we move forward as a firm. I have worked alongside Jody for the better part of 15 years, and I know of no one better suited to lead our firm, and this profession, for years to come. 
I’d be remiss if I did not thank our current Managing Partner, Ann Evanko, for her tireless devotion and a career dedicated to building the foundation of our firm.  Congratulations to you, Ann, as you move on to the next chapter of your career.
The news on Products Liability, well, it pales in comparison (at least this month anyway). 
And now for this month’s Valentine’s Day dad joke (which may look familiar to Simpsons fans):
What did the train engine say to the caboose on Valentine’s Day?

I choo-choo-choose you.

Please let us know if there are any other individuals, inside or outside of your organization, who may benefit from receiving Products Liability Pointers.  New subscribers are always welcome!
We hope you find something useful and informative in each and every issue.  We are always available to discuss any topic in person.  Thank you for reading, and please know that any feedback is both welcome and appreciated.

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.

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.

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. 
V. Christopher Potenza


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

There was an interesting design defect claim from the Eastern District of New York last month, if for nothing more than the “you can’t make this stuff up” fact pattern involved.  The plaintiff was running to the door to let in the repairman when she slipped on the very puddle caused by the fridge the repairman was there to fix….

1/14/2020        Reichmann v. Whirlpool Corporation
Eastern District of New York
Summary Judgement to manufacturer denied on claim where plaintiff fell on water from alleged appliance defect on way to answer the door for repairmen.
Plaintiff was injured after she fell on a puddle of water caused by an alleged defect in her refrigerator-freezer.  She claimed the defendants were strictly liable for the design, manufacture, and sale of a product that is unreasonably dangerous in that its prone to create a puddle of water on the floor in front of the freezer.  Plaintiff was running to the door for a service repairman to fix the refrigerator barefoot when she slipped in the puddle and injured herself.
This refrigerator used a duckbill style valve as part of its drainage system to relieve condensate from gathering in the freezer.   Consumers issued complaints that water would occasionally freeze in the valve, which clogged the drain valve, which reduced the ability of condensate to drain, causing ice to build up in the freezer. If that layer of ice grew, the condensate water could leak onto the floor.   Whirlpool replaced the duckbill valve with a longer duckbill valve, which also led to problems, so it was ultimately replaced with a “p trap” valve.
Plaintiff knew the refrigerator leaked because she observed a puddle on the ground underneath it and called Whirlpool to schedule a service repairman to fix it. 
The defendants moved for summary judgment arguing that plaintiff’s claims fail as a matter of law because she cannot show that the appliance presented a substantial risk of harm, and therefore that the product was unreasonably dangerous so as to trigger liability under New York law. They also argued that plaintiff’s claims are subject to dismissal because the facts show that she had actual notice of the defect.
In denying the motion, the District Court held that plaintiff’s knowledge that there was a puddle on the floor in front of the appliance (on which she slipped) does not require a grant of summary judgment as to her claims of negligence or product liability based upon design defect. Instead, that knowledge goes only to the issues of risk, proximate cause and contributory fault and plaintiff’s conduct on the day of her injury is a factor to be considered by the jury at trial, and not a fact dispositive to defendants’ summary judgment motion. The Court also found that the defendants had full knowledge of the problems associated with use of the duckbill valve, despite that fact that there was no knowledge of any physical injury and rejected the argument that this defect was “trivial.” Lastly, noting that the issue of risk of harm is generally a question of fact to be decided by a jury, plaintiff clearly presented a triable issue of fact as to risk of harm.


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

I want to start off with a big congratulations from our entire Metro New York office to our soon-to-be new Managing Partner, Jody E. Briandi, and a huge thank you to Ann E. Evanko, who will be stepping down from the position.  Jody, as many of you know, is the editor of our Premises Pointers Newsletter.  She is an excellent leader and will continue Ann’s legacy of leading the firm in the right direction.  Ann has worked tirelessly as Managing Partner and her hard work has resulted in a thriving and well-respected firm.

On a personal note, I recently attended the DRI Product Liability Conference in New Orleans.  My wife joined me on the trip as New Orleans has been on our bucket list for a long time.  Although the weather was a bit dicey coming in for the conference, we really enjoyed the city and the food was excellent.  The conference was very informative and many of the lectures focused on using new technology both in the investigative stage following an incident and in the courtroom.  Digital scanning, virtual reality, and 3D printing of demonstrative evidence were among the many interesting topics.  I highly recommend this conference for all those that handle products cases.

Despite an exhaustive search, I did not come across any noteworthy decisions on the manufacturing defect front in New York from last month.  It seems that the local courts have started the year slowly.  However, I did find an interesting decision from Atlanta where the District Court parses out the difference between design defect and manufacturing defect in an implanted medical device claim. 

02/11/20         May v. Ethicon, Inc.
US District Court for the Northern District of Georgia, Atlanta Division
Mayday: U.S. District Court dismisses manufacturing defect claim where there was no evidence that product deviated from design specifications
After undergoing surgery to treat a medical issue, which involved the implantation of a medical device, the plaintiff commenced suit alleging that the mesh product implanted in her caused numerous injuries.  The plaintiff’s expert opined that her health problems resulted from an adverse reaction to a thermoplastic material used in the construction of the mesh product.
The plaintiff’s complaint contained numerous claims, including negligence, manufacturing defect, failure to warn, and design defect.  Following the completion of discovery, the defendants moved for summary judgment.  After finding that the plaintiff’s negligent manufacturing defect claim was cognizable under Georgia law, the Court reviewed the record before it and held that the plaintiff failed to cite to any evidence necessary to establish the elements of the manufacturing defect claim.  The Court noted that "to establish a negligent manufacturing claim, the plaintiff must come forward with evidence that, among other things, there was a defect in the product when it left the manufacturer that was caused by the manufacturer's negligence."  Generally, a manufacturing defect results from an error specifically in the fabrication process, as distinct from an error in the design process.
The defendants argued, and the plaintiff did not contest, that there was no evidence tending to show that the specific product used in plaintiff's case deviated from design specifications in a manner that caused her injuries.  The Court pointed out that the plaintiff’s sole expert in the case opined that plaintiff's injuries arose from an adverse reaction to a thermoplastic material that is inherent to the product's design.  Citing to Georgia case law, the Court reiterated that “when a plaintiff calls into question the safety of an entire product line ... the claim is one for a design defect and not for a mmanufacturing defect."   Accordingly, the Court granted summary judgment in favor of the defendants on the plaintiff’s negligent manufacturing defect claim.


Failure to Warn
By: Brenna C. Gubala

Happy middle winter! I hope you’re enjoying your February.  February is full of surprises, what with Valentine’s Day sweethearts and groundhog weather predictions, but especially in Buffalo.  For example, in the span of 3 days, I can go for a run in only a long sleeve t-shirt, and then go skiing and wear every single coat I own and hand warmers and feet warmers, and still need to ski the bumps to stay warm.  Such is Buffalo in the winter!  I hope you’re finding a fun way to stay warm.
This month’s cases should give you some cozy reading material and have to do with knowledge of a risk and alleging proper failure to warn claims.  They showcase the wide range of products in these cases including a chemical burn from presoak material used to clean silverware to a surgical mesh used during hernia repair.  

1/16/2020   De La Cruz v. Ecolab Inc.
Southern District of New York
No duty to warn when you don’t know the risk, but there is duty if injury covered in the news
Defendant successfully dismissed failure to warn claims by demonstrating that plaintiff failed to show that defendant Ecolab knew or should have known that a “presoak” product could cause chemical burns.   Thus, a basic tenet of a failure to warn claim is that plaintiff must prove the defendant knew or had reason to know of the danger at issue.
In this case, plaintiff was a temporary dishwasher at a hotel.  He was told to wash dishes on the fourth floor of the hotel.  He received no further instructions. Upon finding 100 trays that did not fit in the dishwashers, he washed them by hand using blue liquid from a pump and hose affixed to the wall nearby. The pump dispenser was labeled “Apex presoak” and above it on the wall was an operational chart with pictures and instruction in both English and Spanish.  The chart included a picture of a bus pan with silverware entering the bus pan, and a picture of the dispenser and an instruction to add water.  There was also a binder on the wall of the kitchen that contained a “Safety Data Sheet” that said (1) presoak is classified as an “Eye Irritation, Category, 2A” and (2) presoak used at dilution is not a hazardous substance or mixture.   The hotel provided training when the hotel installed Ecolab products in 2013 that included how to properly dilute one pump in 2 gallons of water.
Plaintiff’s pants and socks were soaked with blue liquid and water.  He changed out of his work boots into sneakers and left work in the same socks.  He did not feel any pain in his feet.  The next night he went to the Emergency Room and was later diagnosed with severe burns to his feet and ultimately his right leg below the knee and his left toe were amputated. Plaintiff also had severe uncontrolled Type 2 diabetes, advanced diabetes related peripheral artery disease, and chronic kidney disease.
Defendant Ecolab manufactured Apex Presoak.  Ecolab moved for summary judgment because plaintiff could not demonstrate that it knew or should have known Apex Presoak could cause chemical burns, even assuming that the Presoak did in fact cause plaintiff’s injuries. The District Court agreed and dismissed the complaint.  Although in this case, plaintiff presented no evidence that Ecolab should have known the Presoak could cause chemical burns, the Court outlined several ways a plaintiff could demonstrate a manufacturer knew or should have known its product could cause a specific injury.  They include: relevant medical study or presentation, published study, filed cases or public news reports regarding similar incidents, and the results of product testing.  The standard requires that a manufacturer keep abreast of knowledge of its products gained through research, adverse reaction reports, scientific literature and other available methods.
Practice tip:  advise your clients that it has an obligation to keep abreast of news reports involving injury from use with its manufactured products.

2/06/2020      Bustamente v. Atrium Medical Corp.
                        Cosh v.  Atrium Medical Corp.
                        Boris. v. Atrium Medical Corp.
Southern District of New York
Failure to cite warnings dooms claim at pleadings stage
In related actions, three plaintiffs filed law suits against Atrium Medical Corp., all alleging injuries as a result of the implantation of Atrium ProLite Mesh during hernia repair surgeries and allege a host of claims including failure to warn under a strict products liability.  Plaintiffs alleged that (1)  the device contained warnings that were inadequate and insufficient to warn physicians or consumers of dangerous risks associated with the product, (2) that the warnings were ambiguous, (3) the website has minimal amount of advertisement and information for the general public.
The court found these allegations conclusory and noted the absence of the exact language of the warnings contained on the device. Thus, there were no allegations as to how the provided warnings failed to accurately reflect reality and do not provide a plausible basis to support the basis that Atrium misrepresented facts. 
Nevertheless, the Court granted plaintiffs leave to amend their complaint.  Thus, should the plaintiffs allege the specific warning on the device, this claim would very likely be sufficient. So a pyrrhic victory for defendants and a note to plaintiffs that they have to provide information, which might not be recoverable, save through discovery.


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

Glad to have you back for round two of Products Liability Pointers! I told you last month that my free time in the winter months consists mainly of coaching a high school mock trial team. I am happy to report that my team won their first trial of the season last week! It is always a morale booster to start the season with a win, especially considering that the students last weekend who were on were all brand new recruits this year except one. We’re off this coming weekend from competition, but the last weekend of February and first weekend of March are back to back trial competition weekends, so keep your fingers crossed for us!
In asbestos news, there are several things to update you about. First, we welcome the Hon. Erin P. Gall, J.S.C. as the 5th Judicial District’s (Herkimer, Jefferson, Lewis, Oneida, Onondaga, and Oswego Counties) newest asbestos judge! Second, Johnson & Johnson has been hit with huge verdict this month in the ongoing baby-powder-contains-asbestos claims, after settling last month in a California case on the issue mid-trial for $2 million. The jury in a New Jersey case ordered Johnson & Johnson to pay punitive damages of $750 million to four plaintiffs who alleges that the company’s baby powder caused them cancer. Luckily for Johnson & Johnson, New Jersey law caps punitive damages at 5 times the amount of compensatory damages, which in this case were found to be $37.2 million in an earlier phase of the trial, so the company is only on the hook for $186 million in punitive damages.
For cases, I bring you one New York State lead paint decision and one asbestos decision out of Connecticut. First, the lead paint case discusses what it means to be an “owner” in the context of a condominium building. Then, the asbestos case discusses what the maritime law’s “substantial factor” test for exposure causing asbestos-related injuries.

02/13/19          M.G. v. Pham
Appellate Division, First Department
A condominium unit owner can be considered an owner under the NYC Local Law’s, opening them to liability for lead paint exposure.
Plaintiff allegedly sustained injuries as a result of exposure to hazardous levels of lead paint within the defendants’ residence/building. The defendant is a condo owner in the Bronx. Specifically, he owns an individual condo unit within a larger condominium complex (who was also sued). Defendant moved for summary judgment on the basis that he is not an owner of the residence and therefore cannot be found liable for any lead paint hazards alleged on the premises.
The court determined that the defendant did not demonstrate that, as the owner of an individual condominium unit, he cannot be held responsible for violation of the lead paint laws. Local Law 1 of 2004 (Administrative Code of City of NY §§ 27-2056.1, et seq.), without defining the term "owner," imposes obligations on "the owner of a dwelling or dwelling unit" (see Administrative Code §§ 27-2056.3, 27-2056.5). So, as the unit owner he bears responsibility for compliance with the obligations of New York City Local Law 1 of 2004 (see Administrative Code § 27-2056.15[b]). In addition, the leases in the record indicate that defendant, as unit owner, not the condominium board, accepted responsibility for compliance with the obligations of New York City Local Law 1 of 2004. Thus, defendant's summary judgment motion was denied.

01/07/20          Carlson v. CBS, Corp.
U.S. District Court of Connecticut
Failure to identify exposure to a specific asbestos-containing product allows for company to obtain summary judgment.
Plaintiffs sued General Electric (“GE”) and multiple other defendants for alleged asbestos-related injuries, including mesothelioma, as a result of his employment as a radiological control technician at General Dynamics/Electric Boat Corp. GE moved for summary judgment on the grounds that plaintiffs have not offered any admissible evidence demonstrating exposure to any asbestos-containing product manufactured by it after GE sent interrogatories to plaintiffs asking for identification of the same and no identification was made. Depositions of the plaintiff took place and again, he did not identify any asbestos-containing GE product that he was exposed to.
Due to the nature of the plaintiffs work, GE argued that maritime law applied to his claims, which was not disputed. Thus, under the maritime law, the plaintiffs bore the burden of proving exposure to GE’s products, and that these exposures were a “substantial factor” in his mesothelioma and other asbestos-related pathologies. Since the plaintiffs did not identify any instance where he was exposed to any GE equipment, let alone asbestos-component equipment, and he did not perform or be in proximity to any work, maintenance or repair the same, there was no evidence that GE products were a substantial factor in causing his injuries. Thus, GE’s motion was granted.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Marina Barci
[email protected]

Brenna C. Gubala


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