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Volume I, No. 7
Wednesday, July 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.
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
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NOTE FROM THE EDITOR:
I’ve now lost count of how many days, and how many months we have been working remotely. New York State at least is seeing a steady decline in COVID numbers and we are very close to re-opening our office. Courts are still remote, but we are seeing a large uptick in litigation activity, not only with new filings, but depositions, mediations and arbitrations. Trials? Who knows? The current betting line in our office is over/under January 8, 2021.
While many will consider this a summer to forget, this is a great opportunity to practice social distancing while exploring some natural beauty. There is so much of Upstate New York that my family now has the time (and inclination) to explore, including the Lower Niagara Gorge, and a true hidden gem, Chimney Bluffs State Park along the shore of Lake Ontario.
 
I am very proud to introduce our latest firm publication, Employment & Business Litigation Pointers, which aims to provide our clients and subscribers with timely information and practical, business-oriented solutions to the latest employment and general business litigation developments. The most recent edition has some excellent tips and guidance for businesses on re-opening during this pandemic. Contact our team here to sign up.
And now for this month’s dad joke, which was in fact a real conversation between my son and his half-British cousin:
Do they have a 4th of July in England?
Yes, it’s the day after the 3rd of July!
- V. Christopher Potenza
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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.
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Design Defect
By: V. Christopher Potenza
[email protected]
Decisions are typically light during the summer months, and even more so during this pandemic. In lieu of specific design defect decisions this month, we provide you a decision from the District Court of Connecticut which is a useful case for future reference as it addresses in detail the pleading standards for strict liability design defect, manufacturing defect, and failure to warn claims.
6/17/2020 Mals v Smith & Nephew, Inc.
United States District Court, D. Connecticut
District Court addresses pleading standards for strict liability design defect, manufacturing defect, and failure to warn claims.
Plaintiff alleges that defective knee replacement parts made by defendant caused him bodily harm following knee replacement surgery. Defendant moved to dismiss on the basis that the strict liability claims were not sufficiently pled. The Court provided a lengthy analysis on the pleading standards for each of the plaintiff’s allegations that defendant is strictly liable for manufacturing defects, design defects, nonconformance with representations, and failure to warn, and is generally liable for negligence.
Manufacturing Defect: Defendant argued that plaintiff inadequately pled this cause of action for failure to specify how the insert was defectively manufactured. Plaintiff countered that he met his pleading burden by identifying the insert as the defective part of the knee replacement product, providing its exact batch and serial number, and explained how it failed, the “anterior translation,” which is sufficient to bolster his claim that a failure in the insert caused the knee replacement to dislocate. The Court held that plaintiff sufficiently plead this cause of action and in fact alleged much more detail than simply pointing to the knee replacement kit as a whole and alleging that it was somehow defective. Rather, he alleged that it was the “unicondylar poly insert [that] failed causing an anterior translation of the plastic prosthesis,” which was discovered during post-surgical “examination and testing.” The standards under FRCivP 8(a) do not require a full factual explanation of the claim, only a short and concise statement of plausible facts which place the defendant on notice of the charges being brought against it. Plaintiff’s Amended Complaint contains allegations which place defendant on notice of the exact insert in question and how it failed. While plaintiff’s Amended Complaint would benefit from specific allegations of manufacturing defect, this information may not be discoverable to plaintiff at this time, and the Court must not penalize him for it.
Design Defect: Defendant argued that plaintiff inadequately pled this cause of action for failure to specify how the insert was defectively designed, and that plaintiff did not sufficiently allege a design defect claim under the “consumer expectations test” or the “risk-utility test.” Plaintiff argued that he has sufficiently met the Rule 8(a) pleading requirements by stating that the knee replacement was more dangerous than a reasonable consumer could have expected by failing in two months, or that defendant could have reduced the risk to plaintiff by using an alternative knee design. The Court agreed with the plaintiff, reasoning that the defendant failed to properly address the “ordinary consumer expectations test.” The ordinary consumer expectations test states that a design defect exists when it “failed to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner.” A knee replacement is a surgery which is expected to last a patient an extended period of time, certainly longer than the two months in which it was implanted in Plaintiff’s knee. To satisfy the pleading requirement for a design defect, plaintiff simply needs to allege that his knee replacement failed to perform as safely as an ordinary consumer would expect, which he claimed through the two-month life span of the insert in his Complaint. This statement is supported by the testing and examination of plaintiff’s knee by doctors, which taken as true would support the idea that the insert failed to perform safely as an ordinary customer would expect.
Defect due to Nonconformance with Representations: Defendant argued that this cause of action Complaint should be dismissed for two reasons; first, a “defect due to nonconformance with representations” is not a recognized cause of action under Connecticut law, and second, if this count is akin to “misrepresentation,” that plaintiff has not met the required pleading standard, because he has failed to state who made the representations about the safety of the knee insert, what was said, and when and how these representations were made. The Court granted this portion of defendant’s motion and dismissed this cause of action.
Failure to Warn: Defendant argued that this claim should be dismissed for failure to state which parts of the implant were defective, what warnings should have been provided, and how the warnings were inadequate. The Court agreed and dismissed the failure to warn cause of action, arguing that plaintiff’s claim is nothing more than a conclusory assertion that the Court must disregard. Plaintiff does identify the unicondylar poly insert as the defective part and claims that he should have received warning that failure of the insert could cause failure of the entire knee replacement device, but he failed to offer a single fact explaining what warning defendant did provide, how it was inadequate or what the warning should have stated.
Negligence: Defendant argued that the negligence claim is merely is a conclusory summary of the previous counts and should be dismissed for failure to state a specific claim. Plaintiff countered generally that the negligence claim should survive because it asserts that defendant negligently designed, manufactured, and marketed the insert, which they should have known was likely to fail and cause the knee replacement to dislocate. The Court granted the motion and dismissed the negligence claim. The elements of a negligence cause of action under Connecticut law are duty, breach of that duty, causation and actual injury. The Court found that plaintiff asserted mere conclusory allegations and did not met this burden of alleging sufficient facts to establish each element of negligence in a manner that is factually plausible.
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Manufacturing Defects
By: Brian F. Mark
[email protected]
I hope everyone had a relaxing and enjoyable 4th of July. The family and I hit the beach early to avoid the crowds and were headed home by lunch time. It was highly enjoyable.
New York State continues to cautiously reopen, with the City lagging slightly behind. Numerous employees in the Metro NYC area have started the process of returning to work, with many already back full-time. Businesses have had to make their workplaces safer, with additions of plexiglass, hand sanitizer, proper social distance signs, etc. Down here in our Melville office, we are doing the same and plan to return to the office next week. With health and safety in mind, we are working on having a hands-free water cooler installed.
Although there were no cases involving a manufacturing defect claim to report on this edition, we do have two interesting cases to discuss involving federal jurisdiction and discovery. In Panchitkaew v. Blue Ridge Beverage Group Company, Inc., the U.S. District Court for the Eastern District of New York determined that the plaintiff failed to establish subject-matter jurisdiction and dismissed the complaint. In Rouviere v. DePuy Orthopaedics, Inc., the Court discussed the scope of interrogatories and the use of a 30(b)(6) notice, ultimately dismissing the plaintiff’s motion to compel responses to its interrogatories.
06/05/20 Panchitkaew v. Blue Ridge Beverage Group Company, Inc.
U.S. District Court, Eastern District of New York
Brew Hoo: U.S. District Court dismisses case due to lack of jurisdiction
After purchasing a 32 fl. oz. can of Carlsberg beer, the plaintiff proceeded to drop it on his foot while trying to open it, which resulted in a broken toe. He initially commenced suit in the Southern District of New York against the defendants, Blue Ridge Beverage Company, Inc. (“Blue Ridge”) and the Carlsberg Group (“Carslberg”). Thereafter, the case was transferred to the Eastern District of New York at plaintiff’s request.
The plaintiff alleged that because the 32 fl. oz. beer can was larger and heavier than a “normal” 24 fl. oz. can, a warning label was required to caution buyers of the “possibility of bodily injury.” While I question how many “normal” 24 oz. beers the plaintiff consumed prior to trying to open his mega beer, the Court questioned whether jurisdiction was proper.
The Court noted that subject-matter jurisdiction is only available only when a “federal question” is presented or when the plaintiff and defendant are of diverse citizenship and the amount in controversy exceeds $75,000.00. Where jurisdiction is absent, the case must be dismissed.
Here, the plaintiff established diversity of citizenship as he is a citizen of New York and Blue Ridge and Carlsberg are citizens of Virginia and Denmark, respectively. However, the plaintiff failed to satisfy the amount in controversy requirement. Notably, it is the party invoking federal jurisdiction that bears the burden of proving that it appears to a ‘reasonable probability’ that the claim is in excess of the statutory jurisdictional amount.
Although the plaintiff alleged that his damages exceeded $75,000.00, he failed to set forth any factual allegations in the complaint to explain how that amount was reached. Accordingly, the Court determined that the plaintiff failed to satisfy the amount in controversy, and thus, failed to establish diversity jurisdiction.
Next, the Court determined that the plaintiff also failed to establish federal question jurisdiction. Federal question jurisdiction provides federal courts jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of the United States.” In reviewing the complaint, the Court noted that the plaintiff failed to allege any facts establishing that his claim arises under the Constitution or any federal laws.
As the plaintiff failed to establish jurisdiction, his complaint was dismissed.
03/07/20 Rouviere v. DePuy Orthopaedics, Inc.
U.S. District Court, Southern District of New York
U.S. District Court denies motion to compel, finding interrogatories violated the local rules
At issue in this products liability case was the plaintiffs’ interrogatories. The defendant DePuy Orthopaedics, Inc. (“DePuy”) objected to the plaintiff’s interrogatories on a number of grounds, including that they violated the Local Civil Rules of the Court.
In reviewing the interrogatories, the Court held that they repeatedly violated Local Rule 33.3(a), which limits interrogatories to those “seeking names of witnesses,” information relating to “the computation of damages,” and learning “the existence, custodian, location and general description of relevant documents.” As the interrogatories at issue did not relate to witness names, damages or documents, the Court denied the plaintiffs’ motion to compel.
The Court also disregarded the plaintiff’s argument that their interrogatories were the “most efficient means of discovery,” finding that a more efficient means of obtaining relevant information would be for the plaintiffs to pose questions to a corporate designee of DePuy, pursuant to Rule 30(b)(6) of the FRCP. If the plaintiffs choose to serve a Rule 30(b)(6) notice upon DePuy, and after meeting and conferring in good faith, the parties were unable to agree as to the scope of the notice, the Court would resolve the scope issues at that time.
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Failure to Warn
By: Brenna C. Gubala
Happy Summer! Or should I just say, Summer! I hope you are having a happy summer. Here in Western New York, we’re lucky to report hot and sunny days and a relatively low and stable number of reported COVID cases. So, we are cautiously experimenting with summer outdoor activities.
For me, that is absolutely biking. You’re outside, and I don’t like to get closer than 6 feet from another biker at any time. I’ve practiced drafting and if it’s not my husband I’m trailing, I don’t like it. It takes a lot of trust. My kids love to ride in the trailer behind the bike (or at least, they’re not crying). They nap and take in the rain that seems to always crop up on Saturday mornings. Biking has been my key to summer joy.
Plus, my birthday is today – so middle of the summer, middle of the month, for this middle child – has always brought me joy. This birthday I hope to fit in a bike ride between WFH and parenting and all the COVID complications therein.
This month, we have some fascinating decisions out of the District Courts. First, another improperly plead claim in English v. Bayer Corp., and the court lets Defendants out of the case. And then a detailed decision in Urena v. Conagra Foods, Inc. regarding the adequacy of a warning compared to plaintiff’s testimony and her own expert conclusion. Pull up a chair, these are good decisions (for the defense) and a good read.
6/25/20 English v. Bayer Corp.
U.S. District Court, Western District
Plaintiff’s cause of action for failure to warn dismissed as preempted by Federal law
Plaintiffs are former birth control device users who brought an action against manufacturers and marketers of “Essure,” a medical device, alleging negligent failure to warn, among other claims. Defendants moved to dismiss, and Plaintiffs cross-moved to amend the complaint. The Court dismissed the failure to warn claim on ground that it was preempted by federal law, and denied Plaintiffs’ cross-motion to amend.
Between 2009 and 2011, three Plaintiffs were each implanted with the Essure birth control device. The device consists of two “micro-inserts” in the form of metal coils, placed in the fallopian tubes. The coils were intended to stimulate tissue growth to block the fallopian tubes and prevent pregnancy. Plaintiffs allege, however, that Essure devices have the potential to migrate from the fallopian tubes, damaging internal organs and causing mental health issues and autoimmune diseases.
Plaintiffs alleged a failure to report adverse events to the FDA, which the court characterized as a failure to warn claim. The court held such claims are expressly preempted by federal law. Plaintiffs cannot maintain a claim that Defendants were required to issue additional warnings beyond what the FDA prescribed and approved. Furthermore, as a standalone claim, “failure to report adverse events to the FDA” is not a cognizable cause of action under New York law.
Furthermore, Plaintiffs did not identify any statements by Defendants that “substantively strayed” beyond those approved by the FDA. Plaintiffs pointed to numerous differences in wording between the FDA-approved labeling of Essure and Defendants’ own representations (e.g., FDA-approved labeling that Essure “acutely anchors ... resulting in ... device retention,” vs. Defendants’ statement that “Essure inserts stay secure,” or FDA-approved labeling of Essure as offering “peace of mind” vs. Defendants’ statements that Essure is “worry-free.”
06/01/2020 Urena v. Conagra Foods, Inc.
U.S. District Court, Eastern District
Drop it like it’s hot
Plaintiff brought an action against Conagra Food Inc. after she was burned by a can of PAM cooking spray that exploded under a failure to warn strict products liability claim. The Court granted Conagra’s motion for summary judgment and dismissed the complaint.
Plaintiff was cooking with a container of PAM cooking spray in a bottom-vented container that buckled with certain pressure and exploded while she was spraying it onto a frying pan near a stove with three of four burners on low heat while it was 100 degrees in and outside of her apartment.
The PAM bottle contained the following warnings: USE ONLY AS DIRECTED. FLAMMABLE. DO NOT SPRAY ON HEATED SURFACES OR NEAR OPEN FLAME. CAN MAY BURST IF LEFT ON STOVE OR NEAR HEAT SOURCE. DO NOT PUNCTURE OR INCINERATE. DO NOT STORE ABOVE 120°F.
New York courts evaluate a warning’s language for its accuracy, clarity, relative consistency, inquiring into whether the warning is correct, fully descriptive, and complete. While usually a question of fact for the jury, where there is no issue with the adequacy of warning, summary judgment is appropriate.
The court found such was the case with the PAM cooking spray. Plaintiffs failed to establish that Defendants’ alleged failure to warn was the proximate cause of the injuries. According to her own expert, Plaintiff noticed, read, and understood the information in the warning. Her testimony established she used the can consistent with the label, admitting that she did not hold or place the can “near” the stove or any other heat source, or store the can at a temperature above 120 degrees.
Thus, Plaintiffs couldn’t show that any alleged inadequacy in the warning label caused the explosion or injuries. Moreover, even if Plaintiff, in fact, had placed the can on or near the flame, Plaintiffs’ own expert agreed that the existing label was adequate to warn a consumer not to do so.
Plaintiffs’ theory that the warning was inadequate because it did not specifically warn that the can’s contents would vent through holes in the bottom if overheated failed for the same reason. Plaintiffs argued that identical cooking sprays that were also sold in vented spray cans did include express warnings that the product was designed to ‘vent’ its contents through holes in the bottom.
The court said even assuming that a manufacturer’s use of a certain warning for similar products is relevant to the adequacy of a product’s warning label—a proposition for which Plaintiffs provided no legal support—Plaintiffs still could not show that the absence of this warning about venting caused the injuries. Plaintiffs’ contention that if the label had specifically warned of the possibility of venting, Plaintiff could have chosen not to use the product at all, the court found bordered on the absurd.
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Toxic Torts, Asbestos, and Lead Paint
By: Marina A. Barci
[email protected]
As the heat persists here in WNY, I realize how much I have taken for granted in the past that every place I have worked so far in my life has had air conditioning, except of course the summer camps (but then I was in the mountains surrounded by trees and the heat doesn’t quite feel so bad there when you’re having fun in the sun). Now that I am working from home however, I realize just how hot my house is when I am stuck in it all day with no air conditioning. So, I am being one of those people that complains about the heat even though we only get a few precious months of nice weather in these parts. Not only have I realized I take air conditioning for granted, I also take working internet for granted. For the second time in a month, my internet is down as I write this. It is much harder to work from home with no internet! Luckily, this time around I am able to hotspot when necessary to email something, like this column, over to our trusty editors.
For this month’s trivia facts:
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The most common type of star in the Milky Way galaxy is a red dwarf star.
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Brazil is the world’s largest producer of coffee.
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Oklahoma’s state vegetable is the watermelon.
For cases, I bring you two cases from the First Department. One is an asbestos-related decision that discusses the burden a defendant needs to meet on summary judgment to prove their products did not contribute to an asbestos-related injury. The other is a lead paint case that discusses the reasonableness standard for a landlord to abate the hazard, as well as causation. Then, I have two cases from the E.D.N.Y., both discussing water contamination by the chemical 1,4-dioxane – a synthetic solvent used in industrial settings to dissolve greasy and oily substances from machined metal products, septic tanks, and as a drain cleaner. Please let me know if you would like a copy of the federal court decisions.
06/11/20 Fischer v. American Biltrite, Inc.
Appellate Division, First Department
Burnham fails to meet burden
Decedent-plaintiff developed mesothelioma after alleged exposure to a number of asbestos-containing products. One of the defendants, Burnham, moved for summary judgment on the basis that its products could not have contributed to the causation of the decedent’s asbestos-related injury. It is the defendant’s initial burden to show that its product “unequivocally” could not have contributed. The Court here found that Burnham did not meet this burden as the decedent's testimony identified Burnham as the manufacturer of greenhouses in which he worked and cited three possible sources of asbestos: transite benches in the greenhouses, window glazing and the greenhouse boiler. Burnham provided no evidence demonstrating that its products could not have been the source of the asbestos that caused decedent's illness and only pointed to gaps in plaintiffs' proof, which was insufficient to meet its burden. Even if the burden had shifted, plaintiffs' evidence in opposition raised an issue of fact as to whether Burnham had sold, distributed, and recommended asbestos-containing products such as those used in plaintiffs' family's gardening business. Thus, Burnham’s motion was denied.
06/25/20 S.T. v. 1727-29 LLC, et al.
Appellate Division, First Department
Lead paint vs. cocaine – what caused this infant plaintiff’s injuries?
The infant plaintiff was two and a half years old when he was diagnosed with lead poisoning. As a result of his high blood lead level, the NYC Department of Health intervened and as a result of its inspection found 47 positive finding of lead paint throughout the place and determined that the pain condition was poor. The defendants were ordered to abate the hazard and hired a contractor to remove the lead paint, which took approximately three weeks. When this case was brought, multiple people testified that the apartment was in bad shape, with peeling and chipping paint, that the landlord refused to repair until the City required it. In addition, the plaintiffs submitted evidence from a medical expert, toxicologist, and psychologist all supporting plaintiffs’ claim that, as a result of his lead paint exposure, the infant plaintiff sustained permanent brain damage as well as cognitive and behavioral deficits. In response, the defendant representative testified that they had a general practice of checking for peeling paint but didn’t know the specifics of this particular building and submitted the opinion of their own medical expert that the infant plaintiff’s injuries were not caused by lead exposure, but rather due to his mother’s use of cocaine and Xanax during pregnancy, as well as a genetic inheritance of low intelligence and psychiatric disorders. After considering the evidence, the Appellate Division found defendants failed to raise an issue of fact that the lead paint hazard existed despite their diligent and reasonable efforts to prevent it. However, the affirmation of defendants' medical expert raised an issue of fact as to whether defendants' negligence was the proximate cause of injury. Thus, while no issue of fact exists as to whether defendants acted reasonably, defendants have raised an issue of fact as to causation, and summary judgment for plaintiffs was denied.
06/04/20 Locust Valley Water District v. The Dow Chemical Company, Ferro Corporation, Vulcan Materials Company, and other related cases
U.S. District Court, East District of New York
Presence of chemical in soil is enough to beat pleading standard for causation
The plaintiffs are public water suppliers on Long Island who each detected 1,4-dioxane, a chemical solvent in its water supply. This chemical is easily transported through the sold and into groundwater, where it can travel long distances and does not degrade easily in the environment or be easily removed from contaminated drinking water. The EPA classifies 1,4-dioxane as a like human carcinogen. The plaintiffs allege that the defendants, who are manufacturers and promoters of 1,4-dioxane and products containing it, used and discharged this chemical in the vicinity of its drinking water, where the chemical migrated into the groundwater and contaminated their wells. Defendants attempted to get the actions dismissed on the substantial factor causation test. This tests is pretty self-explanatory – an act or omission is regarded as the legal cause of an injury if it was a substantial factor in bringing about the injury. Here, defendants argue that plaintiffs have not shown that the particular 1,4-dioxane molecule can be traced to a particular defendant since the chemical is fungible, and thus are unable to properly plead causation. The Court found this argument to be unavailing to require dismissal of the actions as there were other properly plead facts to support substantial causation.
06/12/20 Hicksville Water District v. Jerry Spiegel Associates, Inc., et al.
United States District Court, E.D.N.Y
Contaminated water requires plaintiff’s to wade through federal court
Plaintiff claims that various water wells belonging to it were contaminated by 1,4-dioxane that was used by the defendants for various purposes. In this case, the defendants claim that they were working on a government contract while using these chemicals and thus removed the case to federal court on the basis of federal officer jurisdiction. Federal officer jurisdiction provides that a case may be moved to federal from state court if it is brought against the United States or any agency or officer thereof. Private contractors can be held as officers of the government if supplying it with a product that the government would otherwise have to produce itself. Here, a governmental agency contracted with the defendants in the 1950’s and 1960’s to research and develop nuclear material, similar to those contracts for Agent Orange and Navy ship components containing asbestos. The product was subject to the supervision and approval of the governmental agency and the chemicals existed because of what they were asked to do by the agency – create nuclear material. It is not necessary the government specify what, if any, chemicals are to be used where, nor is it necessary to inform the government about the chemicals hazards before using them as the government is just as sophisticated as the company. Thus, the Court found that removal of the case to federal court based on federal officer jurisdiction was proper and plaintiff’s motion to remand was denied.
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