Products Liability Pointers - Volume I, No. 9


Volume I, No. 9

Wednesday, September 16, 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 is back in session, at least part-time for many New Yorkers.  While the end of summer and the return to school is usually filled with mixed emotions, this year, for many parents it was filled with intense anxiety and guilt.  Should they stay or should they go?  As much as I will cherish the months I spent at home with my kids this past spring, two working parents and three elementary school-aged children is not a recipe for success, for the parents or the kids.  While we have decided to keep our kids home this semester, we have hired a dedicated homeschool teacher to handle school so the parents can focus on the rest of the complexities of life these days.  We are thrilled, and the kids are too. 

As our schools grapple with re-opening plans and safety protocols, it is pretty clear that there is no one-size-fits-all solution on how to educate during a pandemic.  Opinions vary widely, and information changes daily.  Litigation is surely on the horizon.  For over 40 years, Hurwitz & Fine has been counseling and litigating matters for school districts in federal and state court.   Our multidisciplinary team handles not only premises and transportation claims, but also labor and employment, misconduct, harassment, and claims under the Child Victims Act. 

COVID-19 has obviously impacted all facets of life, including litigation, but things are beginning to open up.  Civil jury trials, on a limited and test-case basis, have begun in New York.   As courts begin to re-open, are you curious how COVID-19 will affect jury selection and deliberations? In an effort to find out, I collaborated with jury consultant Dr. David Perrott and some trial attorney colleagues from across the country.  Our analysis and insight on how the pandemic will impact the make-up and mindset of potential jurors is presented in this videotaped Q&A with Dr. Perrott and was the feature article in the August 2020 Claims and Litigation Management Alliance (“CLM”) Magazine.
While decisions are always light this time of year, we do have a few of interest this month, including an unsuccessful attempt by a defendant to classify a prescribed implanted medical device as an “unavoidably unsafe product,” which, in prescription drug litigation, would require failure to warn as a predicate to the design defect claim.  In another district court decision, a manufacturing defect claim against a paddleboard manufacturer was allowed to proceed, but plaintiff’s claim for damages from fiberglass shards in her hand were limited to emotional claims as she failed to present evidence to a reasonable degree of medical certainty that her alleged physical injuries (nerve damage and scarring) were caused by fiberglass. Lastly, there is a good analysis from a trial court on duty in a failure to warn claim involving a residential hot water heater and the mixing valve installed on the water heater.
While there are no asbestos, lead paint, or toxic tort decisions this month, I would like to take this opportunity to congratulate Hon. Richard T. Aulisi on his retirement.   Judge Aulisi presided over the asbestos docket for the 3rd/4th/6th judicial districts (comprising of 28 upstate counties),  and I appeared before him nearly every month for 15 plus years.  He managed a complex and fast-paced docket filled with colorful and often times challenging personalities with a skill and political savvy that was nothing short of masterful.  It was a pleasure to have been in his courtroom, mainly because of how much he cared about all the lawyers who appeared before him. 
In lieu of a dad joke this month, I simply present this actual headline, which is not from the Onion, but from the New York Times.  Nearly Half of Men Say They Do Most of the Home Schooling. 3 Percent of Women Agree.

- 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.


Design Defect
By: V. Christopher Potenza
[email protected]

08/06/20       Arruda v. C.R. Bard, Inc.
U.S. District Court, Northern District of New York
U.S. District Court denies defendant’s attempt to classify medical device as an “unavoidably unsafe product” that would require failure to warn as a predicate to a design defect claim.
This case emerges out of a multi-district litigation (“MDL”) action that alleges a variety of claims related to defective pelvic mesh.  Defendants moved for summary judgment on the design defect claim, making the somewhat novel argument that the medical device at issue is an “unavoidably unsafe product” and that plaintiff therefore cannot maintain a design defect claim without showing a failure to warn.  Relying largely on cases that involve prescription drugs, defendant argues that a medical device that is implanted and requires a prescription is an unavoidably unsafe product to which strict products liability would not normally apply.
While the Court agrees with defendant that the law in New York is that strict products liability for design defects in pharmaceutical drugs is unavailable without a failure to warn or improper instructions, defendant has not cited to any case from New York or the Second Circuit that holds that New York products liability law applies that standard to medical devices that require a prescription. The Court held that it will not require plaintiff to show a failure to warn in order to maintain a design defect claim against the defendant. The Court notes that defendant seeks to have the court adopt a categorical approach by finding that any medical device implanted pursuant to a prescription is “unavoidably unsafe.” Citing prior case law defining “unavoidably unsafe products” as those that “in the present state of human knowledge are quite incapable of being made safe for their ordinary intended use,” the Court noted that defendant made no effort to explain why the device at issue in this case fits that category, and, given the expert testimony in this case, the Court cannot find that the device in question could not be made safe.


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

I hope everyone had an enjoyable Labor Day weekend.  While we had nowhere to go, we did make one final trip to the beach.  We also got some more barbequing in and did our best to simply relax.  The weather is getting noticeably cooler and the kids are back to school, which should put a stop to the mind rot from playing video games.      
Things are picking up in the Metro NYC area.  We are seeing a continual increase in court conferences (still virtual) and depositions.  Most of my recent depositions have been of the hybrid variety, with some attorneys appearing in person and others appearing virtually, which has worked well.  Some courts have already started conducting jury trials, with other courts advising that jury trials are right around the corner.  In those courts conducting jury trials, there are many safeguards in place, including spacing everyone out, barricades, and masks.
Due to the end of the summer slowdown, I only have one manufacturing defect claim to report on.  In Senchyshyn v. BIC Sport North America, the Court examined causation, ultimately finding that the plaintiff’s failure to establish same was fatal to her physical injury claims.

08/05/20       Senchyshyn v. BIC Sport North America
U.S. District Court, Northern District of New York
U.S. District Court finds lack of causation needed to establish products liability claim.
In this products liability case, the plaintiff sought compensation for injuries allegedly caused by a paddleboard she bought from the defendant, BIC Sport North America.  The subject paddleboard consisted of a polystyrene core layered with fiberglass and resin, a fiberglass wrap, and a plastic skin.    
After using the board on a regular basis for two weeks, she felt pain in both of her hands.  At the time, she could not determine the cause of the pain and continued her paddleboarding routine. Three weeks into use, the plaintiff started to see some things “almost like a cactus” protruding from her fingers and would remove the protrusions with tweezers.  The plaintiff went to the emergency room and reported two ulcers on her left hand at the base of her thumb and on her index finger.  An x-ray and a biopsy of the excised skin did not reveal any foreign objects.  The plaintiff later determined that the board was the source after observing “loose fibers” protruding from the seam.  
To prevail on a products liability claim, a plaintiff must show that “the product was in some manner defective.”  Regardless of the theory pursued ... the defective nature of the product is an indispensable element of plaintiffs’ prima facie case.”
The defendant satisfied its initial burden to show that the board was not defective by offering the testimony of its engineer and vice president, stating that the design and manufacturing of the board followed a “state of the art process” and constituted “good engineering practice,” and that they were unaware of any other customer who has had a problem similar to the plaintiff’s.
The burden then shifted to the plaintiff to demonstrate a triable issue of fact as to whether a defect nevertheless existed, which she met.  Specifically, the plaintiff’s materials expert concluded that the board was defective because the gap between the top and bottom layers of the board exposed the internal fiberglass such that loose fibers could become dislodged and embedded in users’ hands during normal use.
The defendant argued that summary judgment was appropriate because the plaintiff failed to show causation.   “[W]hether the action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer’s burden to show that a defect in the product was a substantial factor in causing injury.” 
Although the Court found that the plaintiff raised a triable issue of fact as to whether there was fiberglass in her hands, the Court found that she did not meet her burden of causally connecting her injuries to fiberglass exposure.  The mere existence of foreign objects in a plaintiff’s body is not a sufficient basis from which to infer causation—the plaintiff must also show that those foreign bodies caused her or his injuries.
Although the plaintiff attempted to rely on her physicians’ findings that her hand and finger irritation and lesions were consistent with exposure to fiberglass, such testimony failed to bridge the gap between the plaintiff’s injuries and the fiberglass in her hands, and, thus, was insufficient to defeat summary judgment.


Failure to Warn
By: Marina A. Barci
[email protected]

Hope all is well! Unfortunately, there were no toxic tort, asbestos, or lead paint cases to report on this month. Those Judges must still be on summer vacation… Luckily though there is a failure to warn case I can report on that discusses whether a hot water heater and a mixing valve manufacturer owed a duty to warn people that the water could get to extremely hot temperatures.
This month’s trivia facts:

  1. New York was originally called New Amsterdam.
  2. Koala’s have almost identical fingerprints to humans, so much so that scientists have warned they could compromise a crime scene!
  3. The Cookie Monster’s real name is Sid.

Until next time,

09/08/20         McIntyre v. Bradford White Corp.
Supreme Court, Washington County
A hot case for an infant who was burned by scalding water dismissed.
An infant was burned while he was being bathed in a kitchen sink as a result of a defective hot water heater and mixing valve installed on the water heater. Bradford White was the manufacturer of the water heater and the mixing valve manufacturer was bought out by Honeywell. Plaintiffs contend that Bradford White were aware of the dangers of scalding water and knew that in order to provide to the residence and water, a mixing valve had to be installed on the hot water heater, yet there were no warnings regarding the necessity to service the mixing valve. It is alleged that the valve was a component part of the hot water heater.
Bradford White demonstrated through sworn testimony of its quality assurance manager that the water heater can be installed without a mixing valve, that the mixing valve is not required for safe operation of the water heater, and that a mixing valve is not necessary to enable the water heater to perform its intended function of heating water. Thus, the Court determined that Bradford White did not owe a duty to warn with respect to the mixing valve, particularly because it was manufactured by a different entity. The Court also noted that even if Bradford White did owe a duty to warn with respect to the mixing valve, it demonstrated that a lack of such warning was not a proximate cause of the accident and the infant's injuries. The water heater itself also contained warnings about hot water.
With respect to Honeywell, the evidence showed that the mixing valve was manufactured by a company called Sparco and installed in the 1990s, before Sparco was merged into Honeywell in 2000. The terms of the merger made Sparco responsible for the valve. However, a successor corporation may still be liable for a failure to warn of an alleged defect in the product if it had sufficient contacts with the current owner of the product so as to create a special relationship between the parties which would trigger a duty to warn. Honeywell demonstrated that there was no special relationship between it and the plaintiffs or the apartment complex they lived in when  the accident tool place. Even if Honeywell did owe a duty to warn with respect to the mixing valve manufactured by Sparco, the lack of such a warning was not a proximate cause of the accident and the infant’s injuries. Further, the danger of being scalded by hot water is open and obvious, not hidden or latent.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Brenna C. Gubala

Marina Barci
[email protected]

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