Products Liability Pointers - Volume II, No. 1


Volume II, No. 1

Wednesday, January 20, 2021
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



Thankfully 2020 is in the rear-view mirror, and 2021 is already off to a bright start!  Our beloved Buffalo Bills not only hosted and won an NFL playoff game, but have now advanced to the AFC Championship game for the first time since the 1993 season.  Go Bills!  In firm news, we are very excited to welcome attorney Scott Storm as a member in the Insurance Coverage practice group.  Scott is admitted to practice in both New York and Pennsylvania and has over 20 years of legal experience handling insurance coverage and defense litigation, including special investigations, first-party property, and third-party liability coverage matters. 
There is also (mostly) good news on the Covid vaccine front that should bring us closer to having a fully functioning court system by the end of 2021.  While the vaccine should help get us to that elusive “herd immunity,” I’m starting to think it should be called “unicorn immunity”… Vaccine distribution has been fraught to say the least.  My wife, who works in education, showed up for her scheduled shot last week, only to be told to go home as they did not have enough doses to cover all their scheduled appointments.  Nevertheless she persisted, and after waiting for 4.5 hours, she claimed their second to last dose.  My parents were not so lucky as their appointment was cancelled after the supply ran out. While it seems the whole town has been hitting “refresh” on their computer screens for days hoping for new appointments to open up, I have heard quite a few “success” stories where urgent calls were made to those on wait lists to drop everything, don’t pass go, and immediately proceed to the distribution site before the doses expired.  It may not be perfect, but it’s progress.
On to the legal news, where there is an impactful decision from the Second Circuit Court of Appeals, which is sure to be a go-to citation for years to come, affirming the district court’s obligation as a gatekeeper under Daubert to take a “hard look” at the reliability of an expert’s methodologies.  Further, we have more cases involving the potential liability of Amazon as a product reseller.  Amazon’s dominance in the Covid retail market makes it a prime target to dominate the legal marketplace as well.   
In important news for civil litigants in New York State, Chief Administrative Judge Larry Marks has incorporated many Commercial Division Rules into the Uniform Rules for the Supreme Court and County Court pursuant to Administrative Order 270/20, effective Feb. 1, 2021. Important changes include: appearance counsel must have knowledge and authority of the case; a limit on number of depositions and number of hours per deponent; limits on interrogatories; sanctions permitted for non-compliance with a discovery schedule; adjournments of conferences will only be granted upon a showing of good cause; and a long list of new rules governing the procedure, content, and electronic format of papers submitted to the court.  We will be publishing more details soon highlighting these key changes to New York civil practice.

For this month’s Dad Joke, I could not help but repeat the words of my partner and Labor Law aficionado David Adams:
I started a New Year’s diet to lose 20 lbs, I only have 25 more to go…


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. Contact Dan Kohane at [email protected]  to be added to the mailing list.

Employment & Business Litigation Pointers:  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. 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. Contact Jody Briandi at [email protected]  to be added to the mailing list.


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

11/12/20         In re Mirena IUS Levonorgestrel-Related Products Liability Litigation (II) 
United States Court of Appeal, Second Circuit
As a gatekeeper of reliable evidence, district court must take “hard look” at expert methodologies.
This multidistrict litigation involving hundreds of plaintiffs from across the country concerns the Mirena Intrauterine System, which is a plastic T-shaped intrauterine device (“IUD”), manufactured by Bayer, that releases a synthetic steroid hormone into the uterus to prevent pregnancy. Plaintiffs allege that they developed skull pressure, idiopathic intracranial hypertension, as a result of using Mirena. The district court had granted Bayer's motion pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to exclude the testimony of all of plaintiffs' experts. The district court then granted Bayer's motion for summary judgment on the grounds that the remaining evidence was insufficient to establish general causation, or in other words, that plaintiffs failed to offer sufficient evidence that Bayer's product is capable of causing the type of injuries from which plaintiffs claim to suffer.
Under Federal Rule of Evidence 702, lower courts perform a “gatekeeping” function and are charged with the task of ensuring that an expert's testimony is both relevant and reliable.  The factors for consideration in assessing reliability as outlined by the Supreme Court in Daubert, while not exhaustive or definitive, are  (1) whether a theory or technique “can be (and has been) tested”; (2) “whether the theory or technique has been subjected to peer review and publication”; (3) a technique's “known or potential rate of error,” and “the existence and maintenance of standards controlling the technique's operation”; and (4) whether a particular technique or theory has gained “general acceptance” in the relevant scientific community.  
Plaintiffs argued that the district court abused its discretion by (1) focusing on plaintiffs' experts' conclusions rather than their methodologies, (2) requiring the experts to back their opinions with published studies that definitively supported their conclusions, and (3) taking a “hard look” at the experts' methodology.
The crux of the appeal was the claim that the district court erred by taking a “hard look” at each expert’s methodology, and that the district court's analysis of each expert was “too searching.”  The Second Circuit, noting prior decisions stating that the district court should undertake a “rigorous examination” of the facts on which the expert relies, the method by which the expert draws an opinion from those facts, and how the expert applies the facts and methods to the case at hand, rejected plaintiffs’ argument by stating that “not only was it appropriate for the district court to take a hard look at plaintiffs' experts' reports, the court was required to do so to ensure reliability.” 
The Second Circuit dismissed out of hand the allegation that the district court improperly focused on the experts’ conclusions rather than their methodologies, citing numerous examples in the district court’s decision, which was in excess of 150 pages, providing in-depth analysis on the flawed methodologies.
Lastly, the plaintiffs’ argument that the district court erred by requiring the experts to back their opinions with studies definitively supporting their conclusions, was also rejected. The Second Circuit noted that where an expert otherwise reliably utilizes scientific methods to reach a conclusion, lack of textual support may go to the weight, not the admissibility of the expert's testimony.  Here, because the district court determined that the experts did not use reliable methodology, it was appropriate to also consider that their conclusions were not supported by other published studies.


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

Happy New Year!  I hope the holidays were relaxing.  Ours were quiet, but enjoyable.  With the recent vaccines, hope is on the horizon that things will return to normal soon.  Here’s to hoping this year will be better than last.
With the infection numbers climbing after the holidays, many local restaurants have thrown in the towel, at least for the winter.  For the most part, the courts remain closed to the public in the Metro NYC area due to the pandemic.  Although the courts are physically closed, cases are starting to move forward at a much quicker pace.  It seems both the courts and the attorneys are finally getting comfortable conducting business virtually and are now making up for lost time. 
In light of the recent year-end court shutdowns, there was only one case involving a manufacturing defect claim to report on, but it is one that is certainly reflective of our times in that a pro se plaintiff sued Amazon over defective toilet paper.  In Gray on behalf of B.G. v. Amazon, the U.S. District Court for the Northern District of New York examined the pleadings of a pro se plaintiff to determine whether they were sufficient to establish subject matter jurisdiction.  Although the pleadings fell far short of establishing either diversity jurisdiction or federal question jurisdiction, being a pro se litigant, the court gave the plaintiff time to file a second amended complaint to address the jurisdiction issues.
Until next time …

1/14/21           Gray on behalf of B.G. v. Amazon
U.S. District Court, Northern District of New York
Defective toilet paper claim against Amazon dismissed on pleading failures by pro se litigant.
In this products liability action, the pro se plaintiff alleged that after purchasing and using toilet paper from Amazon, she suffered discomfort and was diagnosed with an infection.  The plaintiff claimed that there was a manufacturing defect in the toilet paper.
In reviewing the plaintiff’s initial complaint and amended complaint, under a more lenient standard due to plaintiff’s status as a pro se litigant, the Court found that the plaintiff failed to adequately allege either diversity jurisdiction or federal question jurisdiction. 
With regard to the lack of a federal question, the Court noted that the plaintiff's claims for negligence, breach of warranty, and products liability, are traditional state common law claims that do not “arise under” federal law.  Furthermore, the federal statutes cited in the amended complaint were not related to the facts alleged in the amended complaint and did not form a basis for federal question jurisdiction.
With regard to the failure to plead diversity of citizenship, the Court noted that the plaintiff’s amended complaint asserted that the defendant’s principal place of business is in the same state that the plaintiff is a resident of.  As such, the Court had no basis to assume jurisdiction over the case.  The Court also doubted that the amount in controversy would exceed the statutory jurisdictional limit of $75,000. 
Lastly, the Court determined that, to the extent that the plaintiff was attempting to assert claims on behalf of a minor, they must be dismissed because “[a] person who has not been admitted to the practice of law may not represent anybody other than himself.”
As such, the Court dismissed the plaintiff’s amended complaint without prejudice and directed her to file a second amended complaint within 30 days.  The Court further held that if the plaintiff failed to do so, the case would be dismissed.


Failure to Warn
By: Brenna C. Gubala

Happy New Year!  January certainly isn’t off to the redemptive start we were all hoping for, but there is reason for hope.  Unless you’re from Buffalo, and a Bills fan.  Which I’m not, but almost everyone I know is. It sure is great to feel the collective joy from the Bills’ success. I expect I won’t feel that much joy again until we can all get vaccinated. Fingers crossed that rollout gets smoother and appointments aren’t cancelled. Oh, and that the Bills go to the Super Bowl.
In this months’ decisions, a New York Supreme Court deals a blow to Amazon and denies its motion for summary judgment which was brought on admittedly rather flimsy grounds. Plaintiff brought a strict products liability claim and Amazon argued it was not a seller because it only temporarily stores the products and never takes title to them.  The Court rejected this reasoning and denied Amazon's motion, holding that Amazon sufficiently handles the product to be constituted a seller. It denied Amazon’s motion.
Be well. Stay well. 

12/08/20     State Farm Fire v. Amazon
N.Y. Supreme Court, Onondaga County
Trial court rejects argument that Amazon is not a product seller subject to strict products liability.
Plaintiff filed an action seeking damages it alleges were incurred as a result of a defective thermostat purchased from Defendant Services, Inc. a/k/a, Inc. a/k/a Amazon (“Amazon”). Amazon did not dispute that the defective thermostat caused a fire. Amazon however filed a motion for summary judgment alleging it is not a “seller” of the product and therefore cannot be held liable for the alleged damages.

Amazon claims it is not a seller of the thermostat and cannot be held strictly liable under a product liability theory since it never designed, manufactured, sold, distributed, or marketed the allegedly defective item. Plaintiff claims this is an issue of first impression in New York.

The Supreme Court however points to established precedent that strict liability may be imposed on retailers and distributors of allegedly defective products because such sellers, due to their continuing relationship with the manufacturers, are usually in a position to exert pressure for the improved safety of products and can recover increased costs within their commercial dealings, or through contribution or indemnification in litigation. By this standard, the Court found Amazon is clearly a retailer and distributor.

In reviewing the terms of the service agreement Amazon has with third-party sellers, the Court determined Amazon exercises sufficient control over the product to be considered among its “retailers and distributors.”

The Court also noted that Amazon does much more than merely provide temporary storage. Rather, when a third-party seller sends its product to Amazon, they are stored at an Amazon facility. An Amazon employee prepares the item for shipment and sends it to the buyer via a shipping carrier.  Amazon calculates fees pursuant to its service agreement with the third-party seller and remits payment to the third-party seller. The packaging is emblazoned with Amazon’s logo. If the consumer has a problem with the product, it is Amazon who they contact. 

The Court pressed on, stating that Amazon seeks to have all the benefits of a traditional brick and mortar storefront, without any of the responsibilities. It denied Amazon’s motion for summary judgment. You can bet there will be an appeal.  Stay tuned.


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

Hope all is well and that you enjoyed the holiday season! I am slowly settling back into things. I’ve got one very short case for you this month out of the First Department that touches the affirmative defense of personal jurisdiction and is a good reminder to not to take pleadings lightly and to make sure defenses are adequately preserved.
For this month’s trivia facts:

  1. There’s a village in Norway called Hell, and it freezes over every winter..
  2. Baby porcupines are called “porcupettes”.
  3. Woolly mammoths were still alive while Egyptians were building the pyramids (2660 BCE).

01/05/21         Barber v. A.O. Smith Water Products Co. et al.
Appellate Division, First Department
Affirmative defense a dud.

In this asbestos matter, defendant Kohler filed a motion to dismiss the complaint against it for lack of jurisdiction. Kohler had included in its answer to the complaint what it thought was an affirmatively pled defense to personal jurisdiction that stated “where applicable, Kohler preserves its right to object to personal jurisdiction of plaintiff over Kohler.” The Court determined that this statement as pled was insufficient to assert a personal jurisdiction defense with specificity as required, so Kohler thereby waived the defense.  


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Brenna C. Gubala

Marina Barci
[email protected]


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