Products Liability Pointers - Volume I, No. 8


Volume I, No. 8

Wednesday, August 19, 2020
A Monthly Electronic Newsletter


About Hurwitz & Fine, P.C.    |    Our Practice Areas    |   
Products Liability Team    |    Contact Us 


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



As courts begin to re-open, are you curious as to how COVID-19 will affect jury selection and deliberations? In an effort to find out, a few trial lawyer colleagues from across the country and I collaborated with renowned jury consultant Dr. David Perrott to seek insight on how the pandemic will impact the make-up and mindset of potential jurors.  We looked to address the impact of likely changing jury pool demographics, and how jurors' beliefs and attitudes may have been influenced by the pandemic.
Many older and other vulnerable potential jurors will likely make efforts to avoid jury duty by raising health concerns, which could skew the jury pool demographics to Generation X (~40 – 55 y.o.), Millennials (~24 – 39 y.o.), and a smaller but ever increasing proportion of Generation Z jurors (≤23 y.o.). The experience of the pandemic may lead to strong case-relevant attitudes and experiences among prospective jurors, including norms for acceptable corporate behavior.  Jurors’ trust in expert evidence may have altered as a result of the conflicting views that have played out among scientists and policymakers over the course of the pandemic.
Practically, attorneys may have to consider alternative methods of delivering information to jurors at trial in line with the expectations of an overall younger jury pool, and heightened anxiety from forced interactions with multiple strangers may affect a juror’s ability to focus on complex issues for long periods of time.
For the long version of our findings, with more detailed analysis and insight, I invite you to view our virtual Q&A session with Dr. Perrott.
If it’s print you prefer, our work was the feature article in the August 2020 CLM Magazine.
I hope you enjoy and feel free to reach out with any comments or questions.  Dr. Perrott can be reached at [email protected].
As for case updates, it is a very light month, so light in fact that with no failure to warn decisions to discuss, Brenna Gubala took the opportunity to take a much-needed respite in the Adirondacks.  My jealousy is boundless.  Brian Mark does have a nice case recap detailing federal court standards for amending a complaint post-discovery.  Toxic tort litigants are keeping the courts busy however, and Marina Barci has two decisions of note, including the dismissal of a defendant where plaintiff cannot establish that he bought the alleged asbestos containing talcum powder at the defendant’s store, and the reduction of a NYCAL mesothelioma verdict from $17.25 million to $10.4 million, reducing past pain and suffering from $12 million to $5.5 million, and past loss of consortium from $1 million to $650,000.
On the dad joke front, my daughter celebrated her 9th birthday last week, and I informed her that this was the last year she would be receiving birthday presents because we don’t do presents for double-digit birthdays.  Her response was “BDJ!” (Bad Dad Joke).  “BDJ” has now become prominent in my family’s lexicon.   My son did come up with this cute submission this month:
             What animal do you NOT want to play cards with?
             A cheetah!

- 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.

Medical & Nursing Home Liability Pointers:  Hurwitz & Fine, P.C.’s newest legal alerts contain timely news on the impact of COVID-19 on medical and nursing home liability claims.  Contact Chris Potenza 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.


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

This strange, travel restricted summer has been going by much faster than expected.  We have been barbecuing and going to the beach as much as possible.  While the weather has been nice, the humidity has not been.  The worst part about the high humidity has been the mosquitoes.  Putting the garbage out at night has been painful (and itchy).   
I have had a few in-person depositions recently in NYC.  Of note, mask wearing and social distance guidelines are being adhered to on the trains and subways, which are much less crowded these days.  The depositions have gone smoothly, with some parties participating via Zoom links and those physically appearing, wearing masks for the duration of the deposition.  I would still recommend appearing remotely when possible, but if a physical appearance is needed, it seems that appropriate safety measures are being taken.
Although it might not feel like it, we are approaching the end of the summer.  As courts typically slow down this time of the year, it was not surprising that there were no recent cases involving a manufacturing defect claim to report on this edition.  We do have an interesting case to discuss involving the denial of a motion to amend.  In a case we have discussed before, Rouviere v. DePuy Orthopaedics, Inc., the Court examined the “good cause” standard for amending a pleading and found that the plaintiffs’ delay in moving to amend and the resulting prejudice to the defendants required the denial of the motion.

07/07/20       Rouviere v. DePuy Orthopaedics, Inc.
U.S. District Court, Southern District of New York
U.S. District Court Denies Motion to File a Second Amended Complaint Due to Plaintiffs’ Delay and Resulting Prejudice to Defendants.
In this medical device products liability case, the plaintiffs sought leave to file a Second Amended Complaint.  After multiple discovery disputes and four extensions of the discovery deadlines, the plaintiffs moved to file a Second Amended Complaint (“SAC”) seeking to add certain factual allegations, as well as new legal claims for intentional misrepresentation and for negligent failure to warn.  Plaintiffs’ counsel argued that the proposed SAC was designed to clarify that he intended to include as part of this case “claims against each defendant for all of their components implanted in Plaintiff, individually and in combination” and to correct “scrivener[’]s errors.”  The defendants argued that the plaintiffs were seeking to add numerous claims related to products not at issue in this matter.
In determining whether a movant has satisfied the “good cause” standard under Rule 16b, “the primary consideration is whether the moving party can demonstrate diligence.”  “A party has not acted diligently where the proposed amendment to the pleading is based on information ‘that the party knew, or should have known,’ in advance of the deadline sought to be extended.”
The Court found that the plaintiffs did not show good cause or that they were diligent in seeking to plead the new factual allegations that are contained in the proposed SAC.
At the time the case was commenced, the plaintiffs set forth the products that were manufactured by the defendants upon which their claims were based.  In a letter the plaintiffs filed with the Court, the plaintiffs stated their belief that their initial Complaint “was plead to include each and every component, part and subpart, of the respective total hip replacement device that were implanted into Plaintiff Jodi Rouviere, individually and in combination with each other.” 
The Court noted that if the plaintiffs’ position is correct, then there was no need for the amendments being sought.  If incorrect, then they waited too long to make their amendment.  The Court pointed out that the plaintiffs have known the defendants’ positions (that the claims to be added pertained to products not involved in the plaintiff’s alleged injuries) for over a year.
The Court determined that the proposed SAC added much more than claimed by the plaintiffs, including extensive additional factual allegations.  The Court held that the defendants would be prejudiced at this late juncture if plaintiffs were given leave to file the SAC.  If these allegations were now part of this case, the defendants would be entitled to additional discovery, including possibly reopening already concluded depositions.  Thus, due to the plaintiffs’ delay and the prejudice to the defendants, the Court denied the plaintiff’s motion. 
In its decision, the Court found that the claims of intentional misrepresentation were conclusory and thus, failed to satisfy the heightened pleading standard.  Additionally, the Court found that the failure to warn claims sought to be added were duplicative of existing claims.


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

Hope all is well! It’s been an unfortunately hectic month for me, so I will just leave you with this month’s trivia facts:

  1. The Anglo-Zanzibar War is known as the shortest war in history, lasting somewhere between 38-45 minutes.
  2. Bagels originated in Poland.
  3. The Sargasso Sea is the only body of water that has no land boundaries.

For cases, I first bring you a revisit from the WDNY on the Castro case (discussed a few months back on the issue of snap removal) discussing why a party was properly dismissed when there was no evidence that the defendant sold plaintiff the talcum powder product at issue. First Department addressed the sufficiency of expert trial testimony on asbestos exposure and causation, and significantly reduced a NYCAL jury verdict on past damages. Please let me know if you would like a copy of the federal court decision.
Until next time,

07/29/20         Castro v. Colgate-Palmolive Company, et al.
U.S. District Court, Western District of New York
Plaintiff’s failure to buy talc products from CVS gets CVS out of case.
In a revisit to the Castro case, which I reported on in May to discuss the snap removal, this time the court addresses whether dismissal of CVS from the case was proper. Plaintiff here believes that he spent decades of his life using talcum powder products that contained asbestos, causing him to have mesothelioma. CVS filed a motion to dismiss based on the plaintiff’s testimony regarding his personal use of talcum powder products throughout his life. He testified that the vast majority of talcum products he purchased were from the Army commissary while he served, that he never purchased any talcum products from a CVS store in New York, and that he could only remember purchasing talcum products from CVS stores in Virginia on rare occasions. Plaintiff’s wife also testified that she could not remember ever purchasing any relevant talcum product from a CVS. Thus, CVS was properly let out of the case.

08/06/20         Robaey v. Federal-Mogul Asbestos Personal Injury Trust, et al.
Appellate Division, First Department
Jury verdict toned down from $17.25 million to $10.4 million after asbestos trial.
In this NYCAL case, the decedent-plaintiff, who died after her trial, testified that while working with her husband she had regularly been exposed to visible dust from the scraping and grinding of engine gaskets, cleaning the family garage after each gasket change, and taking her and her husband’s dusty clothes to the laundry over a period of years.
Federal-Mogul argued that the trial evidence was insufficient to establish that plaintiff was exposed to sufficient levels of asbestos to cause her illness and that the jury’s allocation of fault was against the weight of the evidence. Defendant’s experts conceded that the gaskets at issue contained 50-85% asbestos, and that 80% was standard.   Plaintiff’s experts testified that since dust was visible from the products, and that the gaskets contained several thousand times the "safe" amount of asbestos, they contained sufficient levels of asbestos to cause plaintiff’s mesothelioma.  The Court determined that the expert testimony was supported and that the jury rationally found that plaintiff had not been exposed to asbestos by a number of settling and nonparty tortfeasors as it was the burden of the trial defendant to prove that the dust produced by those settling and nonparty tortfeasors' products contained sufficient amounts of asbestos to cause plaintiff's disease.
The New York County jury awarded plaintiff $12 million for past pain and suffering, $4 million for future pain and suffering, $1 million for past loss of consortium, and $250,000 for future loss of consortium against Federal-Mogul. However, the Court did find that the awards for plaintiff’s past pain and suffering and her husband’s past loss of consortium deviated materially from what would be considered reasonable compensation and vacated the awards for past pain and suffering and past loss of consortium, and ordered a new trial on those damages, unless plaintiff stipulates to reduce the award for past pain and suffering to $5.5 million and the award for past loss of consortium to $650,000.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Brenna C. Gubala

Marina Barci
[email protected]


Read Past Editions of Products Liability Pointers




Hurwitz & Fine, P.C.
1300 Liberty Building, Buffalo, NY 14202
Phone: 716-849-8900, Fax: 716-855-0874

Long Island
575 Broad Hollow Rd., Melville, NY 11747
Phone: 631-465-0700, Fax: 631-465-0313


Additional Offices
Albion | Amherst | Niagara Falls | Palm Beach Gardens | Toronto
Hurwitz & Fine, P.C. is a corporate and defense litigation law firm providing legal services throughout the State of New York
© 2020, Hurwitz & Fine, P.C. All Rights Reserved

In some jurisdictions, newsletters such as this may be considered Attorney Advertising.


Copyright © 2020, Hurwitz & Fine, P.C., All rights reserved.

Our mailing address is:
1300 Liberty Building, Buffalo, NY  14202


Newsletter Sign Up