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Products Liability Pointers - Volume I, No. 5

 

Volume I, No. 5

Wednesday, May 20, 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.

WHAT PRODUCTS LIABILITY POINTERS COVERS

Negligence
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

 
 

NOTE FROM THE EDITOR:
 
In COVID-19 news, courts are slowly reopening and we soon will be returning to some semblance of normal.  We have developed a COVID-19 Legal Response Team to address the myriad of legal issues that arise.  Our frequent updates are included here.  One of our recent updates, thanks to Stephanie McCance and Ryan Maxwell, is a full statewide survey of the various immunity directives enacted to protect medical and nursing home providers on the front lines of this pandemic.

In dealing with this current situation, I am sure we can all relate to digging deep into the cupboard or freezer as we plan our next meal.  Well, that pretty much sums up this edition as the cupboard is pretty bare in terms of product liability decisions.  But we cook with what we got. 

In lieu of a Dad joke this month, I will simply recap a story from my household today that is funnier than anything I could make up.  With both parents tied up in Zoom meetings and “work stuff,” my twin boys decided to make a mud bath in the back yard.  Innocent enough until they remove all their mud-soaked clothes, open the gate, and the dog goes sprinting through the neighborhood, followed by two screaming naked kids covered head to toe in mud.  Pretty much every neighbor within a ten house radius bore witness to this naked chase, so I’m sure there is a video somewhere on YouTube. 
 
And with that, we are on to the cases…
 
V. Christopher Potenza

 

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.

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]

Despite the paucity of decisions, there are some interesting ones, including a defendant’s (successful) attempt to remove a claim to federal court that would not otherwise be removable, by carefully monitoring the docket and filing removal before a domestic defendant could appear in the action.
 
 
4/6/2020          Napoli-Bosse v. General Motors, LCC.
U.S. District Court, D. Connecticut
Plaintiffs don’t need to lock in specifics of design defect claim at pleading stage.

The Plaintiffs in this case allege that their GMC Acadias suffer from a defect that prevents them from turning off and locking their cars, making it unsafe for them to leave their vehicles and, in effect, stranding them in their cars. General Motors LLC (“GM”) has moved to dismiss on the sufficiency of the pleadings pursuant to FRCivP 12(b)(6).
 
In addressing the sufficiency of the design defect claims, the District Court held that the allegations in the Amended Complaint describe the defect from a consumer’s perspective. They do not speak to the genesis of the defect, of which a plaintiff cannot be expected to have any knowledge prior to discovery. While there may be some defects where the answer to this question is obvious from the nature of the alleged defect, that is not the case here.
 
Furthermore, in addressing the allegation that “all class vehicles” suffer from the alleged defect, the Court noted that it is was possible that such a defect was caused by a deficiency in the process through which all of these Acadias were manufactured, or from an incorrect or defective material provided by one of GM’s suppliers, contrary to the design specification.  The Court declined to dismiss at the pleading stage as it was not yet apparent whether the alleged defect is a manufacturing or a design defect.

 


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

Although life may never return to the way it was before the pandemic began, we are starting to see parts of the country opening back up.  In upstate New York, some of the courts in the less populated areas have begun the process of reopening.  The courts in the Metro NYC area will likely take a bit more time before they are open, but it is nice to see progress being made.  Even with the re-openings, we anticipate and hope that the days of being stuck in a crowded courtroom for hours on end will be a thing of the past as telephone and virtual conferences will replace the unnecessary physical appearances.  
 
Last week, I drove from Long Island up to Orange County, NY for a vehicle inspection.  It was great to have a small break from the usual routine of being stuck at home.  While the traffic going there was unbelievably light, the traffic coming home on the Cross Bronx expressway was brutal.  I was shocked at how many people were on the road.  I guess some things will never change.  On a more positive note, I have noticed that many of the local restaurants near me have started reopening, including the timeless All American Hamburger Drive-In.  While not usually a fan of fast food, All American is one of those places where the burgers, fries, and milkshakes are always great.     
 
This month I have one case to report on involving manufacturing defect claims.  In Webb v. Mentor Worldwide LLC, the U.S. District Court for the Northern District of New York examined preemption under the Medical Device Amendments and dismissed the plaintiff’s defective manufacturing claims holding that the plaintiff’s allegations were too generalized to withstand preemption. 
 

04/07/20         Webb v. Mentor Worldwide LLC
U.S. District Court, Northern District of New York
U.S. District Court dismisses manufacturing defect claim due to being preempted by the FDAC.
 
The plaintiff was allegedly injured from breast implants following breast augmentation surgery.  She commenced suit against the manufacturers of the implants, asserting various product liability causes of action, including negligent manufacturing.
 
The defendants moved to dismiss the complaint on the grounds that the plaintiff’s claims are preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”), pursuant to the Medical Device Amendments (“MDA”).  The Court, in examining preemption, noted that courts have created a narrow gap through which a plaintiff's state law claim must fit if it is to escape express or implied preemption.  That is, the plaintiff's state-law claim must parallel a federal-law duty under the MDA but also exist independently of the MDA.  To succeed in asserting a claim that fits through the “narrow gap” between express and implied preemption, a plaintiff must identify a parallel federal law upon which they have based their state-law claims.
 
Defendants argued that the plaintiff failed to allege that any claimed federal violation also constituted a violation of parallel state duties.  In response, the plaintiff described the complaint as alleging that the defendants did not comply with the FDA's Quality System Regulations and Current Good Manufacturing Practices (“CGMPs”), and that it was clear that the state law claims were parallel to the MDA requirements. 
 
The Court noted that while the plaintiff refers to the CGMPs, the plaintiff failed to explain how the defendants violated the CGMPs.  While many courts have held that CGMPs are too generic to support a plaintiff's manufacturing-defect claim, some courts have found that violations of the CGMP regulations could conceivably serve as a basis for claims.  However, even under those cases, a plaintiff must still identify the specific CGMP regulations at issue and provide sufficient factual detail to substantiate the allegations.
 
The Court determined that the plaintiff's generalized allegations could not withstand preemption because they failed to establish the necessary link between the defendants' federal violations and her alleged causes of action. 
 
To plead and prove a manufacturing flaw under either negligence or strict liability, the plaintiff must show that a specific product unit was defective as a result of ‘some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction,’ and that the defect was the cause of plaintiff's injury.  Without specific allegations explaining how the defendants' manufacturing process was in violation of federal requirements so that the implants were defective, the plaintiff's claims fell directly within the MDA's preemption provision.  Accordingly, the Court found that the plaintiff's defective manufacturing claims should be dismissed. 

 


Failure to Warn
By: Brenna C. Gubala
[email protected]

Greetings to you. I hope wherever this finds you, you are well.  We have entered Phase One in Erie County with our re-opening of some businesses and of course we all want to know what this means. I’m sure we’re all aware that legal services are not included until Phase Two, which can’t happen for at least two weeks from the start of Phase One. So much analysis and interpretation going on with the news these days. Even the people giving the news don’t seem to know what it means.
 
What we do know is that we won’t be going back to normal. Instead the new normal will be maintaining six feet from each other, wearing masks, not hugging, not touching at all, and renewed commitment to don’t‑touch-your-face! Wash your hands! What does that mean in today’s cases?
 
State courts are slowly re-opening. Literally, 30 counties in New York State opened up courthouses to judges and their very-limited staff. Meanwhile, the federal courts have been charging ahead. This week’s case (as cases this month were very limited) comes to us from the Southern District leaving a plaintiff with no recourse against a generic drug manufacturer for failure to warn in its labeling. That’s because a generic drug label must match the brand name version of the drug. Of course, the plaintiff in this case didn’t take the brand name drug, so she couldn’t sue them (although she did, and they were let out as well). The courts however have left this gaping hole where justice should be, to the Congress.

Be well.
 
 
4/14/20 Montero v. Teva Pharm. USA Inc.
U.S. District Court, Southern District of New York
Little recourse for harm from alleged improper warnings of generic drug.
 
Plaintiff commenced a strict products liability action claiming injuries from an oral contraceptive, Tri-Lo Sprintec, for failure to warn, among others, against defendant manufacturer Teva Pharmaceuticals USA Inc. (“Teva”), the world’s leading generic pharmaceutical company, and defendant Ortho McNeil Janssen Pharmaceuticals, Inc. (“Janssen”), as the manufacturer of Ortho Tri‑Cyclen Lo, the brand name drug on which Tri-Lo Sprintec is based. Janssen already was let out of the case since it did not manufacture the generic version, even though it was responsible for the accuracy and adequacy of its label, which generic drugs are obligated to follow. Plaintiff alleged inadequate warnings on not only Tri-Lo Sprintec’s packaging but in its communication to healthcare providers and advertisements to the public.
 
Defendants moved to dismiss on grounds that federal law preempted the state law claims. The Court agreed holding that any claims based on failure to warn are preempted by federal law which extended to communication with the public. Teva could not have altered the drug’s label to strengthen its warnings about the side effects or fiddle with its composition to mitigate possible side effects even if it wanted to without violating federal law. The failure to warn claims require it do just that. Because Tri-Lo Sprintec is a generic drug, it has to match the brand name drug’s labeling requirements. The Court acknowledged that the preemption doctrine in this case leaves a plaintiff with no recourse against a generic manufacturer whose drug allegedly injured her. The Court, however, left the issue to Congress.

 


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

Hello Readers,
 
I wish I could say I’ve developed a hobby with all this time being spent at home, but I haven’t found anything I enjoy doing regularly yet. I have been doing a lot of dishes, but I don’t think that counts. I’d like to find something creative I can do while casually watching TV, so if you have any suggestions, please let me know! I suppose you could consider baking a hobby, which I have been doing a lot of, but that is definitely not something I can do every day. I’ve tried some new-to-me cookie recipes though, which has been fun. So far I’ve baked just about every weekend, including Cinnamon-Sugar Topped Banana Muffins, Blueberry Lemon White Chocolate Scones, Chocolate Chip Cookie Bars, Linzer Tarts, Shortbread, Black and White (or Half-Moon) Cookies, and Tri-Color (or Rainbow) Cookies. My roommate has also been baking and she has made Chocolate Cupcakes Stuffed with Cookie Dough and Cookie Dough Frosting, Maple Pecan Frosted Butter Cupcakes, and Cheesecake Brownies, yum! Our next baking project is going to be a cake, I just don’t know which kind, so if you have any suggestions for that send them along as well!
 
For cases, I bring you two asbestos-related decisions. First, a case out of the First Department that deals with an appeal to overturn a jury verdict that found Whittaker, Clark & Daniels, Inc., a distributor of minerals including raw talc, liable for the plaintiff’s asbestos-related mesothelioma. Then a case from the Western District of New York that is more procedural based, but sure to come up in more asbestos cases to follow wherein Johnson & Johnson made a “snap removal” of a talc-containing-asbestos-causing-mesothelioma complaint no more than 24 hours after it was initially filed. If you need a copy of the federal court cases, please email me.
 
 
04/29/20          Castro v. Colgate-Palmolive Co., et al.
United States District Court, W.D.N.Y
No snap judgment made when Court considers use of “snap removal.”
 
Plaintiff allegedly developed mesothelioma after using talc products that contained asbestos and sued a number of cosmetic and retail companies as a result, including Colgate, CVS Pharmacy, Revlon, Cyprus Amax Minerals, Co., and Johnson & Johnson in NYS supreme court. Less than 24 hours after plaintiffs filed their complaint, Johnson & Johnson filed an immediate notice of removal to federal court in the WDNY. This is a newer phenomenon known as “snap removal” and is used to avoid what would otherwise be a prohibition on removal had the other defendants who are considered NY citizens properly been served and joined issue. Mere days before the plaintiffs made a motion to remand back to state court on the grounds that Johnson & Johnson was engaging in gamesmanship, the Second Circuit in Gibbons v. Bristol-Myers decided that such snap removals are not inconsistent with CPLR § 1441(b)(2) (a case otherwise removable “may not be removed if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.”). Typically, if a defendant is sued in a diversity action in the state courts of its home state, is served in accordance with state law, and attempts to remove the case, it is rebuffed by a district court applying § 1441(b)(2). However, if the defendant removes the action to federal court after the suit is filed in state court but before any defendant is served and appeared in the action, then in those limited circumstances, the removal is authorized by the text of § 1441(b)(2) and is not fundamentally unfair. The court did not dive into the policy arguments made by plaintiff and instead reminded that they only interpret statutes as they are, so if the legislature wishes to curb this type of action by defendants, it can modify the statute in light of the technological advances that have been made.
 

04/09/20          Nemeth v. Brenntag North America, et al.
Appellate Division, First Department
Be careful what you appeal for – defendant on hook for $2.9 million after jury trial owes $3.3 million after appeal.
 
Decedent was diagnosed with mesothelioma, allegedly from exposure to products containing asbestos contaminated talc. A jury found in favor of plaintiff, awarding the estate $15,000,000 and plaintiff's widower, $1,500,000 for loss of consortium. It apportioned fault, 50% to Shulton, the manufacturer who used raw talc to make Desert Flower Dusting Powder that the decedent put on her body and inhaled during this process, and 50% to WCD, the supplier of the raw talc to Shutlon. Shulton settled with plaintiff. WCD moved for a judgment notwithstanding the verdict and the trial court granted to the extent of ordering a new trial on damages, unless plaintiff stipulated to reduced judgments in the respective amounts of $6,000,000 and $600,000. After adjustments, WCD owed $2,667,045.45 in favor of the estate and $266,704.55 in favor of decedent's spouse. This appeal followed, with WCD arguing that the jury’s determination went against the weight of the evidence, that the evidence was insufficient as a matter of law rendering the verdict irrational, and that plaintiffs’ counsel’s summation improperly influenced the jury and deprived WCD of a fair trial. The First Department found that the evidence submitted to the jury on both general and specific causation of the decedent’s mesothelioma was qualified, that plaintiff’s summation was appropriate, and that the trial court gave proper jury instructions. This Court also found that the calculation of offsets for payments made by the settling defendants under General Obligations Law § 15-108 was incorrect and awarded $3,300,000 total to plaintiff.
 
Decedent was diagnosed with mesothelioma, allegedly from exposure to products containing asbestos contaminated talc. A jury found in favor of plaintiff, awarding the estate $15,000,000 and plaintiff's widower, $1,500,000 for loss of consortium. It apportioned fault, 50% to Shulton, the manufacturer who used raw talc to make Desert Flower Dusting Powder that the decedent put on her body and inhaled during this process, and 50% to WCD, the supplier of the raw talc to Shutlon. Shulton settled with plaintiff. WCD moved for a judgment notwithstanding the verdict and the trial court granted to the extent of ordering a new trial on damages, unless plaintiff stipulated to reduced judgments in the respective amounts of $6,000,000 and $600,000. After adjustments, WCD owed $2,667,045.45 in favor of the estate and $266,704.55 in favor of decedent's spouse. This appeal followed, with WCD arguing that the jury’s determination went against the weight of the evidence, that the evidence was insufficient as a matter of law rendering the verdict irrational, and that plaintiffs’ counsel’s summation improperly influenced the jury and deprived WCD of a fair trial. The First Department found that the evidence submitted to the jury on both general and specific causation of the decedent’s mesothelioma was qualified, that plaintiff’s summation was appropriate, and that the trial court gave proper jury instructions. This Court also found that the calculation of offsets for payments made by the settling defendants under General Obligations Law § 15-108 was incorrect and awarded $3,300,000 total to plaintiff.

 

NEWSLETTER EDITORS
V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

ASSISTANT EDITORS
Brenna C. Gubala
[email protected]

Marina Barci
[email protected]

 

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