Products Liability Pointers - Volume I, No. 6


Volume I, No. 6

Wednesday, June 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


School's out for summer!  Normally the end of the school year is a time of rejoice for the kids, and panic for the working parents who need to find camps and babysitters to keep a watchful eye on their children as they trek to work each day.  This year, however, it is the parents rejoicing.  As many of us continue to work remotely, “home school teacher” is taken off our resume, at least temporarily.  We can simply let our children run wild, but with a simple instruction not to injure or maim each other.
In COVID news, the State of New York, not too long ago the epicenter of the coronavirus pandemic, is slowly re-opening for business in regional and phased approaches.  Western New York, in fact, is moving into Phase 3 this week, which will allow bars and restaurants to start serving indoors (at 50% capacity), as well as the reopening of nail salons, tattoo parlors, tanning facilities, waxing services and massage therapy offices. It would be hard to argue that New York’s aggressive social distancing measures were not successful, and as numbers rise in those states that were early adopters of relaxed social distancing measures, it is important to remain diligent, and follow the science and reliable data.   

Hurwitz & Fine, P.C. continues to be committed to diversity, equality, and justice in the legal system, in the workplace, and in our community and we are looking forward to positive change on all fronts.
The docket of products liability decisions remained light in May, but there are a few cases to discuss, including two that involve more procedural gamesmanship by the parties than substantive discussion of product liability law.
And now for this month’s dad joke (one of my all-time favorites):
             Why can’t the kids see that new summer pirate movie?
             Because it’s rated ARGHH!
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]

With no design defect decisions of note this past month, instead we present to you an interesting decision from the Second Department that addresses some clever maneuvering from the plaintiff in trying to obtain a default judgment against a defendant who had moved for an extension, as well as a jurisdictional defense of out-of-state medical providers who prescribed medication to a patient who then filled the prescription in her home state of New York.

5/20/2020        Castro v. Pfizer, Inc.
Appellate Division, Second Department
Court rejects plaintiff’s attempt to lull defendant into default
Plaintiff alleges that the drug dilantin caused her to develop a blistering skin condition known as Stevens-Johnson syndrome.  Plaintiff commended suit against the drug manufacturer alleging strict products liability and medical malpractice against her treatment providers.
The drug manufacturer moved to extend its time to answer or move to dismiss the complaint, and while this motion was pending also moved pursuant to CPLR 3211(a)(7) to dismiss the complaint on the ground that the plaintiff's causes of action were preempted by federal law. The motion to extend was then withdrawn after plaintiff's counsel accepted, without objection, a copy of its motion to dismiss.
Two months later, however, while the motion to dismiss was still pending, the plaintiff cross-moved for leave to enter a default judgment, asserting that the time to answer or move to dismiss the complaint had expired. The Second Department affirmed the Supreme Court ruling that plaintiff waived objection to the timeliness of the motion and denied the application for default.  Having lulled the defendant into withdrawing its pending motion to extend its time to answer the complaint by accepting, without objection, a copy of its motion to dismiss, the plaintiff could not, two months later, cross-move to enter a default judgment.
The Second Department also addressed the motion to dismiss of the New Jersey medical malpractice defendants for lack of jurisdiction.  The plaintiff contended that New York has long-arm jurisdiction over the NJ medical providers, on the ground that they supplied services in New York because they discharged a patient under their care to her home in New York, where she filled prescriptions allegedly provided by them, and took the medicine prescribed. The alleged conduct of the NJ medical providers did not constitute transacting business in this state.  Further, a state's authority over a nonresident defendant requires certain "minimum contacts" with the forum state, and these minimum contacts must be with the forum state, and not just with a resident of the forum state.  Here, the NJ medical providers' contacts were with the plaintiff, a resident of New York, but not with New York itself. The NJ medical providers came into contact with the plaintiff only because she sought treatment from them in New Jersey.


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

The process of reopening continues to move forward, albeit slowly, in the Metro NYC area.  Although the City is still in Phase 1, Long Island started Phase 2 last Wednesday.  Despite the fact that restrictions remain in place regarding social distancing and crowd gatherings, I have observed many people ignoring the rules.  It seems like people have already forgotten that the pandemic is still ongoing.  On the bright side, the weather continues to improve.  Almost every evening, I have been taking bike rides with the wife and kids.  It has been very relaxing.
While rumors abound regarding how the Metro courts will operate in this new world, it seems clear that virtual appearances will be the preferred means of conducting court conferences and other appearances.  While the issue of how to conduct jury trials (or how long to adjourn them) is still being worked out, the judges on cases that had been ready for trial when the pandemic began seem to be pushing hard to resolve those cases. 
This month I have one case to report on involving a manufacturing defect claim.  In Morales v. Kimberly-Clark Corporation, the U.S. District Court for the Southern District of New York held that while a plaintiff can rely on circumstantial evidence to plead a manufacturing defect where the product cannot be inspected, the plaintiff must allege sufficient facts to establish that the product did not perform as intended and the possibility of other causes has been excluded.  As the plaintiff failed to proffer such facts, the Court dismissed the manufacturing defect claims.

05/27/20       Morales v. Kimberly-Clark Corporation
U.S. District Court, Southern District of New York
Diaper Defect:  U.S. District Court dismisses manufacturing defect claim without prejudice where plaintiff failed to allege that the product deviated from identical units or that other causes have been excluded
In this case, the infant plaintiff suffered a rash that lasted several days following the use of a Huggies brand diaper. The infant’s mother commenced a class action suit on behalf of herself, her infant son, and all those similarly situated.  The complaint alleged that Kimberly-Clark uses a chemical additive, which is applied to the surface of a number of products, including Huggies diapers.  The additive is designed to help in the absorption of urine or blood, but can be an irritant.  Plaintiff argued, without support, that Kimberly-Clark did not inspect, test, or maintain the instruments that dispense the additive.
Under New York law, in order to successfully plead and prove a manufacturing defect under either negligence or strict liability, a plaintiff must show that a specific product unit was defective as a result of some mishap in the manufacturing process itself, improper workmanship, or defective materials used in construction.  Of course, the defect must also be the cause of the plaintiff’s injury.  A manufacturing flaw will be found to exist when the unit in question deviates in quality and other performance standards from all of the other identical units.  While a plaintiff can rely on circumstantial evidence to plead a manufacturing defect where the product cannot be inspected, the plaintiff must allege sufficient facts to establish that the product did not perform as intended and the possibility of other causes has been excluded.
Here, the plaintiff alleged that after a single use of the defendant’s product, her son developed a rash.  The Court noted that although her doctor may have opined that the rash stemmed from the diaper her son was wearing, the plaintiff failed to proffer sufficient, non-conclusory facts that support a reasonable inference that this single diaper’s manufacturing deviated from identical units or, critically, that all other causes of the rash have been excluded.  As the plaintiff’s only allegation regarding the manufacturing process was wholly conclusory, the Court found no basis to conclude that the plaintiff’s manufacturing defect claim was anything other than speculative and thus, granted the defendant’s motion to dismiss the manufacturing defect claims, without prejudice.


Failure to Warn
By: Brenna C. Gubala

While it feels like we have been living with a dark cloud over our heads, rays of light finally are shining through.  The economy is starting to re-open, we can get haircuts again, and restaurants can have limited in-person dining.  Likewise, the New York State court system is becoming more functional, and courthouses are open to judges and limited staff althought not the public, except in very limited cases.

Weeks of civil unrest may have finally led to a shift in attitudes in this country on issues of diversity and inequality.  This momentum is even leading to changes in culturally insensitive product branding and labeling.

A ray of light also comes in the Supreme Court’s historic decision on workplace protections for LGBTQ workers, which was issued, rather appropriately, during Pride Month. In ruling that discrimination on the basis of sexual orientation and gender identity is illegal under the Civil Rights laws, the Court filled the hole left by the many state governments which did not pass laws prohibiting LGBTQ from discrimination.

Hopefully this month’s case from the Second Circuit will bring a smile as well, as it seems like somewhat frivolous litigation regarding a class action seeking damages for not being able to reach the end of the eye cream bottle.  This class action claims that L'Oréal did not adequately label their eye cream to tell consumers they can’t get to the bottom of the bottle with the lid in place.  I hope you enjoy this one.

5/11/20 Critcher v. L’Oreal USA, Inc.
U.S. Court of Appeals, Second Circuit
Throw out the Bottle, throw out the Case!
Consumers of liquid cosmetics sued L'Oréal for damages claiming they could not get all of the make up out of the container in a class action lawsuit.

Consumers of L'Oréal Visible Lift Serum and Age Perfect Eye Renewal Cream claimed they can’t access all of the product. They brought state law claims for unjust enrichment and breach of implied warranty of merchantability and violations of several state consumer protection acts.

L'Oréal moved to dismiss the complaints on grounds that federal law preempted the state law claims. The District Court agreed and dismissed the claims. The Court also noted no “reasonable consumer” could have been deceived by the products. The Second Circuit affirmed the District Court’s dismissal on grounds that the federal Food Drug and Cosmetic Act (“FDCA”) preempted the state law claims.

The FDCA established a comprehensive regulatory scheme governing ingredients, packaging, and marketing of cosmetic products.  Pursuant to the FDCA, labeling is “misbranded” when it is false, misleading, or does not contain an accurate statement of the quantity of the contents. Further, the FDCA preempts not only those state laws that are in conflict with it, but also any state law that provides for labeling requirements that are not exactly the same as those set forth in the FDCA and its regulations.

Plaintiffs allege that the labels omit critical information i.e., that the cream could not be fully dispensed from the containers.  The Court rejects the argument on grounds that federal law preempts their claims. The Court reasons that plaintiff would be using state law to impose labeling requirements on top of those already mandated in the FDCA and its regulations. Plaintiffs cannot therefore avoid the sweeping preemptive force of the FDCA, and their attempt to impose labeling requirements is barred.


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

Hello Readers,
The weather has finally started treating us well here in WNY. I am grateful for the sun, although I am not thrilled with the fluctuating temperatures ranging from mid-60’s to high 90’s over the last few weeks. Personally, I would prefer the temperature stay in the 70’s all summer. I have enjoyed being able to get outside more due to the nicer weather, but one of the best things that has come from being forced to stay inside has been the development of a weekly Sunday night trivia game via Zoom. In participating in these games, I have learned a lot of really interesting new facts! So, I have decided that each month I will share three random facts with you all. For this month’s facts:

  1. A group of rhinos is called a crash.
  2. “Be back in a jiffy” means you’ll be back in 1/100th of a second.
  3. The Caesar salad originated in Mexico!

For cases, I bring you one asbestos-related decision out of the Southern District of New York that deals with another snap removal dispute. If you need a copy of the case, please email me.
Until next time,

05/05/20          McDaniel v. Revlon, Inc.
United States District Court, S.D.N.Y.
Court thwarts snap removal
Plaintiff allegedly suffers from mesothelioma due to exposure to asbestos as a result of the defendants’ negligence. The complaint was filed in New York County Supreme Court on February 25, 2020. The next day, February 26, one of the defendants removed the case to the SDNY on the basis of complete diversity and filed an answer. At the time of removal, none of the defendants had been served in the state court action. On March 27, 2020, the plaintiffs moved to voluntarily dismiss this case without prejudice so that they could re-file in state court where there is a dedicated asbestos docket, the New York City Asbestos Litigation (“NYCAL”) docket, that allows for accelerated trials for living plaintiffs with mesothelioma or late stage lung cancer allegedly caused by exposure to asbestos. Because all defendants had answered at this point, and did not consent to voluntary dismissal, the Court must order it unless there is a showing that the defendants will suffer substantial prejudice as a result. Here, because it was less than 30 days from the time of removal and at the very beginning stages of litigation, the Court determined that there was no prejudice to the defendants and dismissal was appropriate.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Brenna C. Gubala

Marina Barci
[email protected]


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