Products Liability Pointers - Volume II, No. 11


Volume II, No. 11

Thursday, November 11, 2021
A Monthly Electronic Newsletter


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



Today we pay tribute to American veterans and all that they have done for our country. Veterans Day originated as “Armistice Day” on November 11, 1919, the first anniversary of the end of World War I. Congress passed a resolution in 1926 for an annual observance, and November 11 became a national holiday beginning in 1938. To all of our veterans, thank you for your service!

We lead off this month with a pretty significant decision from the Court of Appeals that debunks a hundred-year-old myth that foreign corporations, by registering to do business in New York, consent to general jurisdiction in New York for adjudication of lawsuits.  In Aybar v. Aybar, the Court of Appeals, in a product defect claim involving an out-state-state accident with a product manufactured and supplied by foreign corporations, addressed a rather prevalent misreading of a 1917 decision which held that a foreign corporation's designation of an in-state agent for service of process conferred jurisdiction to causes of action unrelated to its business transacted in New York.   The Court of Appeals has now clarified that this prior decision did not also hold that the mere acts of registration and designation constituted consent to general jurisdiction.  Rather, the test for general jurisdiction is whether the corporate defendant can be deemed to be “at home” in the forum state and, more specifically, a corporation generally will be “at home” only where it is incorporated and has its principal place of business.
In this issue we also discuss a District Court of Connecticut decision addressing whether the “learned intermediary doctrine” applies to a baby formula death case under state common law, and a NYCAL trial court offering a refresher course on defendant’s burden of proof on summary judgment in an asbestos case.
I am very pleased to announce additional attorneys joining our teams, including an experienced products and medical device litigator, and a downstate trial attorney.
Michael J. Williams joins our ranks as a former Deputy Attorney General for the State of California and has years of experience in medical device and prescription pharmaceutical litigation. This month he offers his insight on an MDL decision challenging an expert’s proposed methodology for calculating class-wide damages in an infant sleep surface class action. 
Jesse L. Siegel has joined our Melville office, bringing over a decade of experience as a civil litigator, conducting both bench and jury trials in the District, Civil and Supreme Courts of Nassau County and Suffolk County, as well as the five boroughs of New York City.
Hurwitz and Fine Managing Partner, Jody E. Briandi was recently featured in the 2022 publication of U.S. News - Best Lawyers "Best Law Firms" for her article, "Navigating the New Normal," in which she discusses how the pandemic has affected law firm culture and work environment.

Speaking of Best Lawyers, Hurwitz & Fine, P.C. has been ranked as a Tier One Law Firm in eight practice areas in the 2022 U.S. News & World Report and Best Lawyers, including personal injury litigation – defendants, insurance law, and litigation – insurance.
And now for this month’s dad joke:
Did you hear Facebook is changing its name to Meta?
What’s a “Meta”?
Nothing, what’s a Meta with you?


V. Christopher Potenza  ■  Member
Hurwitz & Fine, P.C.
1300 Liberty Building  ■  Buffalo, NY 14202
tel (716) 849-8900  ■ cell (716) 523-8941 ■ fax (716) 855-0874
Email:  [email protected]
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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 subscribe.

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.  

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:  Medical & Nursing Home Liability Pointers provides the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  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 subscribe.


Manufacturing Defects
By: Guest columnist Cara Pascarella

In an effort to enjoy what is left of our nice weather, I took a trip to visit Manhattan's floating oasis known as “Little Island,” which made its debut in May 2021 and has been open to the public ever since. It consists of 132 tulip-shaped pillars that arise out of the Hudson River to provide walking paths and an open landscape to visitors. It’s the perfect place to go if you want a break from the traditional concrete jungle atmosphere Manhattan provides. In fact, part of the reason for building it was due to research concluding that those who lived in greener areas tend to be overall happier people.  Another fun fact is that in 1912, survivors of the Titanic arrived by rescue boat to this same location on the Hudson River.
This month we have a landmark jurisdiction decision from the Court of Appeals in a product defect claim involving an out of state accident with a product manufactured and supplied by foreign corporations authorized to do business in New York.
10/07/21              Aybar. v. Aybar, et al.
New York Court of Appeals
New York Court of Appeals finds a foreign corporation does not consent to general jurisdiction by registering to do business in New York and designating a local agent for service of process.
The plaintiffs in this action consisted of the estates of three deceased passengers and three surviving passengers who were riding in defendant, Jose Aybar, Jr.’s Ford Explorer.  The vehicle overturned multiple times on an interstate highway in Virginia when its Goodyear tire allegedly failed. Although the vehicle was purchased in New York, Ford did not originally sell the vehicle in New York, nor did it design or manufacture the vehicle in New York. Similarly, Goodyear did not design, manufacturer, or initially sell the tire in New York. In addition, neither Ford nor Goodyear were incorporated or had their principal place of business in New York. However, they were both registered with New York’s secretary of state as a foreign corporation authorized to do business in the state and had appointed in-state agents for service of process in accordance with the Business Corporation Law.

The Court held that a foreign corporation’s registration to do business in the state and designation of an agent for service of process in New York does not constitute consent to general jurisdiction. This determination relied heavily on the plain language of Article 13 of the NY Business Corporation Law. As the Court explained, the plain terms of the statute do not condition the right to do business on consent to the general jurisdiction of New York courts or otherwise afford general jurisdiction to New York courts over foreign corporations that comply with these conditions.   As such,  a finding that Ford and Goodyear consented to general jurisdiction would add terms to the statute that are simply not present. As a result, the Court of Appeals rejected plaintiffs’ theory that Ford and Goodyear consented to general jurisdiction under New York law and those defendants’ motions to dismiss were granted.


Multidistrict Litigation
By: Michael J. Williams
[email protected]
We’ve all hiked an interesting path from 2020 and into 2021.  In order of personal excitement, I can list joining Hurwitz & Fine, finally completing my EMT certification to add medical response to my volunteer firefighting duties, and cheering on the Bills in-person with three vaccine doses in my arm.  Adding to the excitement, let’s take time to discuss a novel approach to determining diminution in product value based on product defects in a class action setting.  Hope you’re still as excited as I am! 
10/19/21   In re Fisher-Price Rock ‘N Play Sleeper Marketing, Sales Practices and Products Liability Litigation                             
United States District Court, Western District of New York
District Court admits demand-side only “conjoint analysis” for economic damages (% Diminution in Value Factor × $Units sold = Damages) over Daubert challenge
The Consumer Product Safety Commission recalled Fisher-Price’s “Rock ‘n Play Sleeper” (“Sleeper”) in April 2019.  While death personal injury claims proceeded individually, the Judicial Panel on Multidistrict Litigation coordinated federal litigation into an “MDL” to address potential refunds under a myriad of states’ consumer protection laws.  While a full refund remains a possibility, the interesting element here is the parties sought to prove the diminution of value between the Sleeper as sold with the same Sleeper if it had been purchased with a warning regarding the risk of infant death or injury.
Plaintiffs disclosed an expert forensic economist specializing in “conjoint analysis.”  Derived from “considered jointly”, the conjoint methodology surveys consumers to determine their perceived value of elements used when making their purchasing decision.  The theory is akin to patent law, where infringement damages might be determined for a product’s value with and without the patent-infringing feature.  Here, the experts proposed to determine by survey methodologies how much consumers would have discounted the Sleeper’s value had it warned of potential infant death or injury.  Defendants, however, filed a Daubert challenge to the particular survey methodology plaintiff’s intended to employ. 
All parties agreed that conjoint analysis was established by publication and acceptance within the relevant community.  All discounted concerns regarding testing and error rate as inapplicable to the inherently subjective survey methodology.  Disagreement arose when plaintiffs exclusively focused on demand to value a measure of loss based only on the subjective beliefs of the survey participants about what they would be willing to pay.  Defendants countered that an economist must recreate both the demand and the supply curve to establish diminution in value, following classical economic principles that valuation is based on the intersection between supply, demand and the price point.  In effect, with the warning, Fisher-Price would have produced fewer, lower cost sleepers, impacting market value and leading to less diminution in that value for each Sleeper sold. 
The court held that conjoint analysis is well-established in the field of economics. Any criticism of the expert’s proposal to implement it is fair game for cross-examination, but does not warrant exclusion of the witness.


Failure to Warn
By: Kara M. Eyre
I am bursting with joy because I just registered to run (or, more likely, jog/walk) in the 126th Annual YMCA Turkey Trot with my 7-year-old son on Thanksgiving morning. It will be his very first time running a road race, and I am thrilled that we will share this experience! The Turkey Trot in Buffalo, New York, has been held since 1896 and is the oldest consecutively run footrace in the world, even older than the Boston Marathon.
Relatedly, it’s that time of the month again for . . . Lady Facts, a lesser known but nonetheless inspiring fact about women in history. Not so long ago, road races like the Boston Marathon were exclusively a man’s domain. It was not until after running icon Kathrine Switzer became the first woman to complete the Boston Marathon as a registered participant in 1967 were women then allowed to enter. At the time, it was so widely accepted that women were physiologically incapable of running 26.2 miles, there was nothing in the rules expressly forbidding women from running, so she simply registered for the race using her initials “K.V. Switzer.” During the race, she was assaulted by a race manager who attempted to remove her bib and disqualify her from the competition. Photos of this incident ran in the Boston Globe and became a touchstone for the women’s liberation movement and women’s increasing participation in athletics. Kathrine went on to complete nine Boston Marathons, and her bib number – 267 – was retired in 2017. Following in Kathrine’s footsteps, in 2021, 7,441 women completed the Boston Marathon.
In Hunte v. Abbott Laboratories, Inc., the United States District Court, D. Connecticut, issues a Certification Order specifying those issues to be determined by the Connecticut State Supreme Court, in follow-up to a prior decision on a motion to dismiss we recently featured
10/29/2021      Hunte v. Abbott Laboratories, Inc.
United States District Court, D. Connecticut
In baby formula infant death case,  District Court certifies questions to the Connecticut State Supreme Court on “learned intermediary doctrine” and loss of filial consortium under state law.
As previously reported in September’s Products Liability Pointers, plaintiff brought suit against Abbott Laboratories on behalf of her late son, who was born prematurely at 27 weeks and spent his entire three-month life in the NICU at Yale New Haven Hospital. Plaintiff alleged that three of Abbott’s cow’s-milk-based infant formulas, which were administered to her son in the NICU resulted in his development of necrotizing enterocolitis (“NEC”) and death. Plaintiff’s Complaint asserted multiple theories of liability against Abbott, including violations of the Connecticut Product Liability Act (“CPLA”) for failure to warn, design defect, negligent design and negligent post-sale duty to warn, negligent misrepresentation, and breach of express warranty; intentional misrepresentation under Connecticut common law; violations of the Connecticut Unfair Trade Practices Act (“CUTPA”); and loss of filial consortium under Connecticut common law.
The District Court dismissed the majority of plaintiff’s claims, except for plaintiff’s (1) failure to warn claim under the CPLA and (2) loss of filial consortium claim under Connecticut common law, which the Court indicated it would certify to the Connecticut Supreme Court for consideration pursuant to a subsequent Order.  The Certification Order summarized the questions to be determined by the Connecticut State Supreme Court, as follows:
“(1)      In general, does the learned intermediary doctrine apply to failure to warn claims brought under the Connecticut Product Liability Act. Conn. Gen. Stat. §52-572m, et sea, that involve exempt infant formulas?
(2)        Even if not, does the learned intermediary doctrine apply to Abbott’s products on the facts of this case, given the medical context in which they were used and how they were administered?
(3)        If the learned intermediary doctrine applies either generally or on the facts of this case, does the direct-to-consumer exception to the learned intermediary doctrine (or any other exception) apply?
(4)        Does Connecticut law recognize a cause of action for loss of filial consortium?
In explaining its certification of these four questions, the District Court explained its belief that it is unclear whether the learned intermediary doctrine applies to plaintiff’s failure to warn claim and thus, it is unclear whether defendant owed a duty to warn (1) medical professionals or (2) plaintiff directly. Without knowing to whom the duty is owed, the District Court determined that it cannot assess the adequacy of defendant’s warnings, and thus cannot decide whether to grant or deny their motion to dismiss.
The District Court thus asked the Connecticut State Supreme Court to evaluate whether the learned intermediary doctrine applies to failure to warn claims involving exempt infant formula under the CPLA. As far as the District Court could surmise, the Connecticut Supreme Court has not explicitly determined whether the learned intermediary doctrine applies to exempt non-prescription products, like infant formula. While the District Court stated that it is unaware of any Court that has held that the medical use of a non-prescription product can bring it within the learned intermediary doctrine’s scope, it also noted that infant formula does not fall neatly into either the prescription or non-prescription category. As the District Court observed, some formula brands are available for general retail consumption while others are not.
The District Court also instructed that even if the learned intermediary doctrine does apply, the Connecticut Supreme Court should also determine whether the facts alleged in this case falls within an exception. The District Court noted that this question has not previously been evaluated by the Connecticut Supreme Court, but surveyed cases from other jurisdictions and noted that such exceptions often are found to exist where the physician-patient relationship is not the same as it is in typical treatment scenarios, there is a lack of communication between patients and physicians, or where patients essentially control the selection of the product.
Regarding plaintiff’s loss of filial consortium claim, the District Court held that it is an open question whether the Connecticut common law recognizes such a cause of action. The District Court noted that this question, like questions involving the application of the learned intermediary doctrine, are appropriate for certification because whether such a cause of action is recognized by the Connecticut common law is determinative of the solvency of plaintiff’s claim, and there does not appear to be any controlling appellate decision, constitutional provision, or statute of Connecticut. 


Toxic Torts, Asbestos, and Lead Paint
By: Nicholas J. Heintzman

This week’s fun Canada fact is that the company that eventually produced Kraft Dinner (a/k/a Macaroni & Cheese) was founded by a Canadian, James Lewis Kraft. Mr. Kraft was born and grew up in Stevensville, Ontario, a small Canadian town about 30 minutes from Buffalo. Mr. Kraft moved to Buffalo in the early 1900s and started a cheese resell business with several of his brothers: J.L. Kraft & Bros. Co. In 1916, Mr. Kraft patented a process for producing processed cheese and began distributing cheese through the United States and Canada. After several name changes and mergers, his company eventually created famous products like Kraft Dinner and Miracle Whip.
One asbestos case this week: a New York trial court denied a defendant’s asbestos summary judgment motion on causation grounds where the defendant failed to offer any expert evidence that its products did not cause plaintiff’s asbestos exposure and subsequent mesothelioma development.
10/12/21         El-Sheikh v. Advance Auto Parts Inc.
Supreme Court of New York, New York County
Defendant’s summary judgment motion challenging plaintiff’s asbestos claim on causation grounds fails where defendant did not introduce any expert opinion on causation.
Defendant Abex moved for summary judgment on the grounds that plaintiff failed to establish that Abex’s brake products caused plaintiff’s asbestos exposure. Abex offered no expert evidence on its brakes and whether asbestos could be released from them. Plaintiff argued that a question of fact existed as to causation and provided the following evidence: 1) his testimony that for 11 years he worked with Abex’s brakes which contained asbestos from 1983-1994 and specifically saw visible dust coming from the brakes; 2) expert testimony that malignant mesothelioma is caused by inhalation of asbestos and that plaintiff’s exposure was significantly higher than normal workers because he worked without any dust control equipment; and 3) plaintiff’s expert concluded “within a reasonable degree of medical and scientific certainty” that plaintiff’s mesothelioma was caused by asbestos exposure.
The Court held that Abex’s attempt at satisfying its summary judgment burden by merely pointing to gaps in plaintiff’s evidence was insufficient. The Court noted that Abex provided no expert evidence that their product did not create asbestos and that said exposure would not have caused plaintiff’s mesothelioma. By failing to provide its own evidence and merely criticizing plaintiff’s proof, Abex failed to demonstrate that there was no question of fact as to plaintiff’s alleged asbestos exposure causing his mesothelioma. The Court also held that plaintiff needed only to show “facts and conditions from which [Abex’s] liability may be reasonably inferred.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Michael J. Williams
[email protected]


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