Products Liability Pointers - Volume I, No. 4


Volume I, No. 4

Wednesday, April 15, 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 ain’t no party, this ain’t no disco, this ain’t no foolin’ around… It seems rather appropriate that the Talking Heads' “Life During Wartime” is stuck on a permanent loop in my head.  We are all adjusting to this new normal, so what we are attempting to provide in this issue is a much-needed break and respite from COVID-19 news.  No attempt to decipher who or what source to believe.  Just stay home and read some good-old fashioned product liability legal analysis from our team while we dream of days to come when we can get into a courtroom and pass responsibility to plaintiff’s employer for removing the guard from that miter saw.  If you do nothing more than click on the video link above for some classic David Byrne and crew, circa 1983 Los Angeles, then mission accomplished. 
On a more serious note, we are, of course, keeping up to date on how COVID-19 is affecting our lives and our businesses and have been providing updates on our Hurwitz & Fine’s COVID-19 Resource Center, including a piece from Stephanie McCance of our medical malpractice team detailing the Governor of New York’s Executive Order providing health care workers’ immunity from negligence claims in responding to this pandemic.   
There is also a very interesting case that applies to all aspects of injury litigation that was first reported by Marc Schulz in last week’s Premises Pointers.  In Katz v Camp Bnoseinu, the Second Department precluded the plaintiff from obtaining the defense IME doctor’s notes as they were protected as materials prepared in anticipation for litigation.  We will surely keep this citation handy as we are constantly opposing subpoenas served on our IME doctors and vendors for this information. 
We hope you all were able to enjoy Easter and Passover from the safety of your own home, with maybe the occasional drive and wave to our parents and grandparents.  Sadly, Buffalo’s infamous Dyngus Day celebration was cancelled this year.
And now for this month’s Easter dad joke:
Why did the Easter egg hide?

It was a little chicken!
My last piece of sage legal analysis this month: Carole Baskin totally fed her husband to the tigers.

V. Christopher Potenza

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 Pointers: Our latest newsletter! Employment & Business Pointers aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business law 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.

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]

In the land of design defect litigation, we did get two interesting decisions before the courts went on quarantine.  The Third Department addresses the need to assess industry standards and feasible design alternatives to prosecute a design defect claim.  The Second Department addresses whether the failure to produce the alleged defective product is fatal to a design defect claim.

3/5/2020          Darrow v. Hetronic Deutschlands GMBH, et al.
Appellate Division, Third Department
“Dead Man’s” switch allegation fatal to decedent’s design defect claim.

The decedent plaintiff was injured when a remote-control device used to operate a boom crane allegedly malfunctioned, causing plaintiff to be crushed. In support of their motions for summary judgment to dismiss the design defect claims, defendants offered expert affidavits of two engineers who opined that the remote control was designed to permit the operator to stand safely outside of the zone of danger while operating the equipment, and detailed the many design features that operated to prevent inadvertent engagement of the controls and provide the operator with several means to stop the operation of the equipment. They further opined that a “dead man's” switch, or a switch that would need to be continuously pressed to enable the other levers to function, would be impractical, reduce safety and destroy the functionality of the remote control. They ultimately opined that the accident was solely due to operator error; the decedent would not have been injured had he stood outside the area in which the boom could reach, and that a dead man's switch would not have prevented the accident under any set of facts.
Plaintiff opposed the motion with an opinion from an expert mechanical engineer who opined that  the remote is defectively designed in that it did not contain a dead man's switch, and that it was foreseeable that, without a dead man's switch, inadvertently engaging a button, no matter the diligence of the individual operating the equipment, could cause personal injury and property damage.
The Court rejected the opinions of the plaintiff’s expert and granted the defendant’s motion to dismiss.  The Court was critical of that fact that plaintiff’s expert affidavit was not supported by facts of his own independent testing of the device; rather, he relied on deposition testimony of other witnesses to explain the functions of the remote. Furthermore, although plaintiff’s expert averred that the remote could be made safer by adding a dead man's switch or by implementing joysticks, he offered no proposed designs that could feasibly be installed, and, moreover, he pointed to no industry standards or data to support his conclusion that the absence of a dead man's switch rendered the remote unsafe.  The Court noted that a factual issue regarding design defect is not established merely by pointing to efforts within the industry to make a safer product, without providing some detail as to how the current product is not reasonably safe and how a feasible alternative would be safer.  Given plaintiff’s expert’s failure to elaborate, and mindful of the testimony of multiple witnesses for defendants who averred that they were not aware of any remote controls in the industry that use a dead man's switch for crane operations, plaintiff's proof was insufficient to raise a triable issue regarding design defect.  
3/26/2020        Rossi v. Doka USA Ltd
Appellate Division, First Department
Lost ratchet does not spoil plaintiff’s design defect claim.

The First Department overturned the trial court and denied the defendant’s motion to dismiss.  The case involves an allegation that plaintiff, a carpenter, was injured while installing concrete walls at the building that would become 4 World Trade Center. The walls were created using a reusable form system with tracks, so that a form could be filled with concrete, pushed into place along the track, and then pulled out again once the concrete had set. The form was moved back and forth on the track by use of a ratchet provided by the manufacturer of the form track system.  Plaintiff was injured when the gear broke while he was applying pressure to the ratchet.  Plaintiff does not know what happened to the ratchet after the accident, and the ratchet has never been recovered.
Because the ratchet could not be produced in discovery, the defendant moved for spoliation sanctions, arguing that the absence of the ratchet that allegedly broke at the time of plaintiff's injury entitled it to dismissal of the complaint. The motion court had granted defendant’s motion and dismissed the complaint, holding that the loss of the ratchet warranted dismissal because it meant that the defendant could not exclude the various possibilities that the accident was caused by misuse, alteration, or poor maintenance, rather than some design or manufacturing defect
In addressing the law of spoliation as it applies to design defect cases specifically, the First Department reasoned that to obtain sanctions for spoliation, a party must establish that the non-moving party had an obligation to preserve the item in question, that the item was destroyed with a “culpable state of mind,” and that the destroyed item was relevant to the party's claim or defense. The First Department differentiated between a claim based on a design defect as opposed to a manufacturing defect, and the absence of the product is not necessarily fatal to a design claim. A product's design could possibly be evaluated, and the defect proved circumstantially, such as through the testimony of someone involved in the design process, and plans or photographs of the product before it entered the stream of commerce. Another unit could also be used, assuming that the missing product was one of multiple units manufactured using the same design.
The Court also found it questionable that plaintiff should be held responsible at all for the absence of the ratchet. The accident occurred during a major construction project, and plaintiff sought immediate medical attention upon his injury did not have securing the ratchet as his foremost priority. Furthermore, there was consistent testimony that the gears had stripped on many of these ratchets on this job and new ratchets had to be ordered.  There was nothing preventing an expert from testing one or several of these ratchets and investigating whether the gears tended to strip when force was exerted on the ratchet.


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

Like most of the country, people here in the NYC Metro area have been staying inside as much as possible.  In fact, people have actually been riding dirt bikes and ATVs in Manhattan.  That certainly says something about how quiet the streets have become.  The few times I have ventured out for essentials, I have worn a mask and gloves.  While uncomfortable, I did feel somewhat safer.  I observed that most other shoppers were doing the same.  However, I did see someone remove their mask to cough.  Pretty sure that defeats the purpose of wearing a mask in the first place.  ¯\_(ツ)_/¯
We are starting to see some of the judges down here schedule virtual conferences and many attorneys have already conducted depositions and mediations via videoconferences.  As the legal community gets more comfortable and familiar with the new technology, virtual conferences and proceedings are sure to become routine.   
I have only one case to report on this edition as the pandemic continues to change the world as we knew it.  In Amica Mutual Insurance Company v. WHAC LLC, the U.S. District Court for the Western District of New York, found issues of fact as to the plaintiff’s negligent manufacturing claim and thus, denied the plaintiff’s motion for summary judgment.

03/20/20         Amica Mutual Insurance Company v. WHAC LLC
U.S. District Court, Western District of New York
U.S. District Court denies summary judgment on manufacturing defect claim where experts disputed cause of the fire.
This case arises out of a property damage claim resulting from a house fire.  The plaintiff insurance carrier, as the homeowners’ subrogee, brought suit against automobile seller and manufacturer to recover for the fire damage that was allegedly caused by a defective vehicle.  The plaintiff’s claims sounded in negligent design or manufacturing, negligent failure to warn, and/or breach of express or implied warranties.
The parties disputed the origin of the fire, with the plaintiff asserting that the fire originated from a vehicle which the homeowners had parked in the house's attached garage two days before the fire.  The defendants disagreed, pointing to evidence that the fire originated in the adjacent kitchen and that the fire may have been the result of arson.  The plaintiff’s experts disputed the defendants’ claims and opined that the fire did not start in the kitchen and that there was no evidence of arson.
The Court examined the plaintiff’s negligent manufacturing claim and the evidence for and against same.  As material questions of fact clearly existed as to whether the fire was the result of a defectively-manufactured product or resulted from some other cause, the Court denied the plaintiff’s summary judgment motion on plaintiff's manufacturing defect claim.  As the plaintiff countered defendants' proffered expert witnesses with expert reports and testimony of its own, the Court found that the plaintiff sufficiently rebutted the defendants' explanation for the subject fire for purposes of the motion.


Failure to Warn
By: Brenna C. Gubala

Greetings to you from our new WFH landscape (I just learned this acronym and it’s fun to use what you’ve learned). I hope you are staying well and healthy. The last 4 weeks have been an adjustment, truly, and a crash course in learning how to be home and present with the people you work all week toward seeing on the weekends. Now you can see them every day! It’s been enlightening to say the least. But as we all know, through lived experience, and otherwise, the world spins on. And so, we spin too. Humans are apparently the most (one of the most?) adaptable species on the planet, and we are getting lots of practice.

As attorneys adapting to a legal system without courts, it’s refreshing to review some recent decisions. This month’s decisions were, thankfully, decided and shed some light on failure to warn claims, how to plead, and how to win the motions. Or in this case, not win. In Alicea, defendant lost its motion for summary judgment when plaintiff’s expert matched defendant’s expert with feasible alternative warnings for its manual on proper ladder use. The defendant in Scism however struck gold, sort of, when it successfully got the strict products liability claim based on failure to warn dismissed at the pleading stage. The complaint contained a separate claim based simply on failure to warn, however, which the court, rightly so, found duplicative of the strict products claim.  Oh well. Fight that one in the next motion.

Be well.
3/16/20 Scism v. Ethicon, Inc.,
U.S. District Court, Northern District of New York
Two separate claims in complaint did not “mesh” with the court.
Plaintiff commenced a strict products liability action claiming injuries from a surgically implanted mesh product designed to treat urinary incontinence.  Plaintiff brought an action against defendant manufacturer Johnson & Johnson and its subsidiary Ethicon. Plaintiff alleged defendants marketed the mesh product as a safe, effective, and reliable medical device and their marketing strategy allegedly was extensive and aggressive but that defendants allegedly failed to test the devices which have high failure, injury and complication rates. Plaintiff had a mesh surgically implanted and later required a revisionist surgery to correct problems with the mesh. She brought a complaint in federal court based on diversity alleging eleven causes of action. Defendants moved to dismiss the negligent misrepresentation and strict products liability causes of action. Defendants did not move to dismiss the separately plead failure to warn claim.

The Court in fact granted defendant’s motion to dismiss the strict products liability claim on rather prosaic grounds. The Court explained a defective product comes in three categories: (1) design defect, (2) manufacturing defect, and (3) defective or inadequate warnings. The necessary elements of defective or inadequate warnings claim are: (1) the existence of the manufacturer’s duty to warn; (2) against dangers resulting from foreseeable uses of its product of which it should have been aware; and (3) that failure to do so proximately caused plaintiff’s injury.

Since plaintiff also alleged a separate claim based on failure to warn claiming defendants are “strictly liable” for their “wrongful conduct”, the Court found that the strict products liability claim based on to failure to warn was simply duplicative and dismissed it.  The Court did not dismiss the negligence claim, nor the failure to warn claim.

This case is interesting however because the Court notes a manufacturer adequately carries its duty to warn by providing information to the prescribing physician, and not the patient directly. This falls under the learned intermediary doctrine which the Court discusses in connection with the negligent misrepresentation claim. Under this doctrine, a manufacturer’s duty to warn of a treatment’s side effects is fulfilled by giving adequate warning to the prescribing physician, and not directly to the patient. Warnings for medical treatments are intended for the physician whose duty is to weigh the risks and benefits of treatments when prescribing and supervising their effects. Thus, a manufacturer’s duty is satisfied when it warns the physician, not the patient.

The Court dismissed the negligent misrepresentation claim since the plaintiff failed to plead that the physician relied on defendant’s alleged misrepresentation of test results related to the mesh product or allegedly inadequate warnings. The significance however being that defendant satisfies its duty to warn in its claims to the physician, not plaintiff herself.

Finally, although the Court doesn’t address it in its opinion, I think the pleadings in this case do fail to allege how the warnings were inadequate. The Court notes the oft-repeated rule that a failure to warn claim is appropriately dismissed if a plaintiff does not plead facts indicating how the provided warnings were inadequate. Defendants however did not move to dismiss the failure to warn claim, only the strict products liability theory based on failure to warn resulting in a pyrrhic victory for defendants.

3/19/2020     Alicea v. Gorilla Ladder Company, et. al.
Appellate Division, First Department
Not all warnings “stand” to reason.
Plaintiff brought a strict products liability claim after he fell from a ladder he claimed was defectively manufactured. Defendant Gorilla Ladder Company moved to dismiss the strict products liability claim based on failure to warn because plaintiff conceded he read the ladder’s warnings and instructions and he understood them. What’s more, on the date of the incident, plaintiff set up the ladder in accordance with the manual.  He nevertheless fell. Defendants submitted an expert opinion positing that a user must perform a “fireman’s test” to ensure a ladder is set up at the correct angle. He averred a fireman’s test is used by fireman to ensure ladders are set up properly.

In opposition plaintiff’s expert contended the method contained in the ladder’s manual was ineffectual. Plaintiff’s expert claimed the manual needed a visual “bubble” to illustrate proper ladder set up. He further claimed that the manual failed to warn of the classic “Foot slip out” danger and failed to advise of factors to mitigate this danger such as proper footwear or provide criterion for replacement of the ladder’s feet or how to order new feet. Finally, plaintiff’s expert proposed alternative wording for the ladder’s safety labels, which comparable ladders utilize in their manuals. The trial court denied defendant’s motion.

On appeal, the Appellate Division affirmed the trial court’s denial of defendants’ motion for summary judgment on strict products liability failure to warn finding plaintiff raised a triable issue of fact as to whether the ladder's warnings failed to identify the foot slip-out danger or instruct the user of proper methods to mitigate such danger.


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

It has officially been over a month of working from home. I try to get outside once a day and go for a long walk or run in order to get some fresh air, but otherwise, we stay in the house. It really doesn’t feel like it has been that long, so maybe I have adjusted to the new normal. I hope everyone out there is staying sane and healthy. I am glad I live with people I like and that we have a crazy cat that makes us laugh. Hopefully, by next issue we can see a light at the end of this COVID tunnel and an idea of when we can leave our houses at our leisure again. 
In asbestos news, after much negotiation, asbestos cases have been deemed “essential” and are able to go forward, at least on a limited basis, with the court’s assistance.  In extremis plaintiffs are being produced for depositions, but attendance is encouraged to be done by telephone.  Courts are holding conferences by telephone.  It is unclear at this point what will become of pending trial dates as the courts weigh the urgencies of critically ill plaintiffs to have their day in court with the realities of asking jurors and court personal to attend a trial under these circumstances.
For toxic tort cases, we have a very interesting lead paint case from the Fourth Department, which provides for separate notice defenses for co-owners of a property. 

03/13/20          McDowell v. Maldovan
Appellate Division, Fourth Department
Not Common Place: Tenancy in common does not equate to liability in common.
Here, defendant owned the subject property, as a tenant in common, with his father during the period of plaintiffs' tenancy from 1992 to 1994. Defendant submitted evidence that he was a co-owner of the property "on paper only," that his father handled all day-to-day maintenance of the property, and that he never entered plaintiffs' apartments or hired anyone to make repairs thereto during plaintiffs' tenancy. He did not have a key to the apartments, never spoke to or received complaints from the plaintiffs or their mother, had no knowledge of inspections for or the existence of lead paint at the property during plaintiffs' tenancy, was unaware that the property was constructed at a time before lead paint was banned, that paint was peeling at the property, that lead paint posed a danger to young children, and that young children lived on the property.
The Court found that, regardless of whether this defendant’s father had actual or constructive notice through his own involvement with the property, that notice could not be imputed to this defendant absent evidence of his own notice. Defendant met his initial burden of establishing that he did not have notice of a hazardous lead paint condition on the premises and the plaintiffs failed to raise a triable issue of fact.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Brenna C. Gubala

Marina Barci
[email protected]


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