Products Liability Pointers - Volume II, No. 12

Volume II, No. 12
Friday, December 10, 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

As the pandemic Grinch continues to rear its ugly head, we want to wish all our friends and readers a happy and safe holiday season. 

Before we get into the products liability news for the month, we want to congratulate columnist and assistant editor Cara Pascarella for her additional admission to practice law in the state of New Jersey!

We also want to thank all the front-line workers and first responders for their continued efforts in these challenging times, including our very own Mike Williams, who spends his spare time as an EMT and volunteer firefighter.  In what is clearly a sign of the times, he recently spent a very long evening battling a major fire at a local PPE storage facility which further depleted precious local hospital resources. 

Please read Mike’s column below for some important holiday season product safety and fire prevention tips!
We have a lot of interesting cases to discuss this month.  There is another attempt to hold Amazon liable for a product defect; a rejection of strict products liability for an elevator door malfunction; a medical student blaming her prescription medication for her poor exam results; a visit into the standards for joint trials in asbestos actions; and the ever present, and always confusing, federal court jurisdictional decisions.

And now for this month’s dad joke:

What do you call a bankrupt Santa?
Saint Nickel-less
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]
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: Cara M. Pascarella

On behalf of Brian Mark, myself, and our entire Long Island office, we want to wish you all Happy Holidays! 
Although we now have a new variant to be wary of, there have not been any significant developments as far as the courts are concerned in the NYC Metro area.  For the most part, everything remains virtual, including depositions, discovery conferences, and motion arguments. However, trials, some pre-trial conferences, and many appellate arguments continue to be conducted in person, with safety protocols in place. 
The good news is that now that December is finally here, the official ski season has arrived! Although no one ever wishes for a cold winter, I hope to see some snow fall. It appears that New York mountains will be back in full swing, and while current guidelines aren’t mandating half capacity for ski resorts, lift tickets and season passes appear to be scarce. I can’t wait to get back to the slopes!
This month we have a District Court decision analyzing joinder for the purposes of destroying diversity jurisdiction and a New York appellate court addressing the ups and downs of strict products liability for an elevator accident.
11/18/21         Booth v. Otis Elevator Company
New York Appellate Division, First Department
Court dismisses strict products liability claim as plaintiffs failed to establish anything more than a malfunction at the time of the accident.
The plaintiff claimed that she was injured as a result of being knocked to the ground when the elevator doors closed as she was attempting to enter the elevator.  Otis demonstrated its entitlement to summary judgment by submitting evidence that the elevator door at issue was not defective.  In opposition, the plaintiff relied on her daughter’s testimony that she had been holding the door open button and that the plaintiff had crossed the elevator threshold when the doors began to close.  However, the Court found that such testimony established nothing more than a malfunction at the time of the accident, which was insufficient to maintain a strict products liability cause of action.  The Court further noted that the fact that Otis supplied the subject elevator and serviced it would not impose strict liability for a defect that developed after the installation was completed.
Accordingly, the Court granted the defendant’s motion for summary judgment and dismissed the complaint.
11/12/21         Spicer v. Oak Leaf Outdoors, Inc.
U.S, District Court, Northern District New York
United Stated District Court of the Northern District of New York finds fundamental fairness in remanding a products liability action back to State Court.
Plaintiff filed a products liability claim, involving a defective tree stand platform in Onondaga County. Following the filing of this claim, the Defendants successfully removed the action to federal court in the Northern District of New York. However, plaintiff now seeks to amend his Complaint to join additional defendants. If these defendants are successfully joined, subject matter jurisdiction would be destroyed requiring the case be remanded to state court. 

In a case such as this one, the Federal Court can either deny joinder, permit joinder, or remand the action back to State Court. In making such a determination, the Court first looks to Federal Rule of Civil Procedure 20. Given there was no dispute as to whether joinder was proper, the Court deemed it appropriate.

Next, the Court looked to whether a jurisdiction destroying joinder comports with the principles of fundamental fairness under 28 U.S.C. 1447(e). To determine fundamental fairness, the Court weights the following four factors: (1) any delay, and the reasons for the delay, in seeking to amend; (2) any resulting prejudice to the defendants; (3) the likelihood of multiple litigations and (4) the plaintiffs’ motivation in moving to amend.

In analyzing the first factor, the Court used the filing of plaintiff’s initial letter outlining his intent to join additional defendants to start the clock. Given this letter was filed just over three weeks following removal, any delay was deemed appropriate.

As for the second element, the Court accessed whether joinder would force the defendants to change litigation strategies in pursuit of which resources have already been expended. The defendants argued they have an interest in prosecuting this case in a federal forum, however the Court found this unconvincing. The Court reasoned given the early stages of this litigation, there was no significant prejudice to the defendants.

With respect to the third factor, the Court addressed whether failure to join these parties would create a risk of multiple ligation and waste of judicial resources. In determining such a risk, the Court looks to whether a separate action is likely and if such an action would rely on similar evidence. Here, plaintiff indicated that if the Court failed to allow joinder, he would bring another action against these defendants. Assuming this action was brought, the Court recognized it would undoubtedly rely on the same evidence and therefore there was a credible threat of multiple litigation. 

Finally, as to the fourth element a plaintiff may not defeat a federal court’s diversity jurisdiction and a defendant’s right of removal by merely joining defendants as parties with no real connection with the controversy. On the other hand, to show that a plaintiff is acting fraudulently in adding a defendant, a defendant must show by clear and convincing evidence either there has been outright fraud, or there is no possibility, based on the pleadings, that a plaintiff can state a cause of action against the non-diverse defendant in state court. Here, defendants tried to meet their burden by arguing the plaintiff knew the identity of the new defendants prior to removal but waited until after removal to amend the Complaint.

However, the Court expressed a party is not required to discover new information after removal in order to effect joinder. Furthermore, the plaintiff’s attorney provided an affidavit in which the plaintiff stated he was preparing to file a motion for joinder prior to the removal of the action. The Court also noted the plaintiffs have a viable products liability claim against the new defendants, making it unlikely that the primary purpose of bringing them in is to destroy diversity. As such, the defendants have failed to meet their burden in showing fraudulent joinder and all factors weighed in favor of allowing the amendment and joinder.

Failure to Warn
By: Kara M. Eyre

Another holiday season in a pandemic means another season of on-line shopping. This month we report on another attempt to hold Amazon strictly liable for a product sold through its website.   We also report on a claim by a medical student, who alleges that a failure to warn of the possible side effects a medication led to her poor performance on her medical board examination. While not addressed in the decision, does her status as a medical student make her a knowledgeable user?
Also . . . it’s that time of the month again for Lady Facts, a lesser known but nonetheless inspiring fact about women in history.  While the Jeff Bezos retail juggernaut, Amazon, skirts liability for products sold on its website, his ex-wife, MacKenzie Scott, is a record-setting philanthropist.  Ms. Scott has donated $2.7 billion in 2021, for a total of about $8.6 billion, to almost 800 organizations since her divorce from Mr. Bezos, making her one of the most prolific philanthropists in history.  She is giving away her fortune at an unprecedented pace, setting her apart from the typical philanthropic commitments made by the ultra-wealthy, including her ex-husband.
11/30/2021      Tyrone Wallace v. Tri-State Assembly, LLC, et al.
New York Appellate Division, First Department
Amazon not strictly liable for defective products sold on its website.

Plaintiff suffered injuries when the handlebars of an electric bicycle his father purchased for him through loosened while he was riding it causing him to fall.  The bicycle was listed for sale on Amazon by China-based non-party Eshion.  Tri-State Assembly, an Amazon approved service provider, assembled it.  Plaintiff originally sued several parties, including Amazon, alleging that Amazon and its agents were careless and negligent in assembling, distributing, and selling a product unfit for public use, and in making, assembling, distributing, and selling a product that collapsed under normal use.  The Supreme Court granted Amazon’s motion for summary judgment, which was affirmed by the First Department.
The First Department held that the Uniform Commercial Code clearly provides that implied warranties only extend to sellers and Amazon submitted unrefuted documentary evidence establishing that it did not sell, manufacture, distribute, or assemble the bicycle.  Eshion sold the bicycle and shipped it directly to plaintiff, and it was never in Amazon’s control.  Similarly, Amazon did not impliedly warrant the assembly service performed by Tri-State Assembly, and the First Department declined to fashion an equitable remedy extending implied warranties to Amazon because Plaintiff has no other means of recovery.  The Court noted the holding in Eberhart v., Inc., 235 F. Supp 3d 393 (S.D.N.Y. 2018), where the Southern District of New York observed the “emerging consensus against . . . holding Amazon strictly liable for defective products sold on its website.”
11/22/2021      Maria Gioia v. Janssen Pharmaceuticals
U.S. District Court, Eastern District of New York
District Court rejects medical school student’s claim against pharmaceutical manufacturer for failure to warn of side affects alleged to have resulted in poor performance on board exams.

Plaintiff sued Janssen Pharmaceuticals alleging that they failed to warn of the possible side effects of Invega, a schizophrenia medication, which led to her poor performance on medical board examinations and her ultimate ineligibility for a medical residency program.  Janssen moved to dismiss pursuant to F.R.C.P. 12(b)(6), which was granted by the Eastern District of New York.  In its holding, the Court noted that New York recognizes the learned intermediary doctrine, whereby a pharmaceutical manufacturer satisfies its duty to warn of a product’s risks by providing information to the prescribing physician, not the patient directly.  Moreover, the Court concluded that plaintiff’s Complaint failed to adequately set forth how the warnings provided to her physician regarding potential side-effects of the drug were inadequate.  Noting that the plaintiff had already been provided an opportunity to remedy the deficiencies in the Complaint, but did not, the Court thus denied her related request for leave to amend.

Multidistrict Litigation
By: Michael J. Williams

[email protected]

I spend my non-litigating hours serving as a volunteer firefighter and EMT in the Harris Hill district of Clarence, New York.  While every level of government is focused on us preventing the spread of infectious disease, my products pointers is focused on products safety in terms of candles, trees and fire prevention.  Have a happy – and safe  -- holidays! 
The National Fire Protection Association (NFPA) reports that from 2015-2019, candles annually caused an average of 7,400 home fires, 90 civilian deaths, 670 civilian injuries and $291 in direct property damage.  Holiday decorations (excluding Christmas trees) averaged 790 home fires, one civilian death, 26 civilian injuries and $13 million in direct property damage.  Christmas trees – which can burn faster and hotter than newspaper -- alone averaged 160 home fires, two deaths, 12 injuries and $10 million in damage annually. 
These numbers only include incidents where fire departments responded, so they exclude countless fires where a prepared homeowner quickly extinguished the flames themselves.  Fortunately, we have plenty of safe space in which to enjoy our holidays without performing Clark Griswold (Christmas Vacation) impersonations.   
For candles, those religious and festive icons, FEMA recommends keeping them at least 12 inches away from anything flammable.  Please think of 12” in every direction:  the drapes above a candle in the window, a festive display of dried flowers around a candle’s base or a pile of recyclables near where a candle sits are all potential fire sources.  Please also don’t forget to keep candles and the lighters or matches used with them away from children and pets. 
For light strands, please inspect them (and any extension cords) for damage before putting them on display.  Plastic clips provide a safer alternative to nails, tacks or staples through the cords when putting them up.  Reputable manufacturers also test their products at qualified laboratories for a reason, so respect the difference between indoor/outdoor lights and how many strands can be safely connected. 
Finally, don’t forget your smoke detectors.  Whether the batteries silently died, you removed them when it wouldn’t stop sounding in the middle of the night, or they’ve just exceeded their intended functional life span, check your detectors and replace them if needed.  Your friendly neighborhood firefighter only comes running after your alarm has alerted you to call us. 
NFPA also wisely suggests keeping any decorative tree at least three feet from heat sources like fireplaces, space heaters and (of course) candles, and keeping it well watered while it stands.  FEMA also suggests that you mark your calendar for December 30 as a reminder to dispose of your dried-out tree.  Otherwise, beware of what the U.S. Consumer Product Safety Commission presents in this controlled burn.

Even our fastest fire response times take minutes, not the seconds it takes for a dry tree or other flammable material to ignite and spread.  We’ll be there if you call, but trust that your firefighters would much prefer that everyone – including we first responders – enjoys safe and happy holidays at home. 
In MDL news, sometimes the parties can actually agree on ways to create efficiencies in this litigation, such as in this month’s CPAP MDL in which the parties engaged with the administrative regulatory agencies and the judiciary with logical and forthright positions to come to an agreement on centralization and narrowing the choice of venue.
Also a bonus pointer for those relying on the FDA performing it’s mission:  you can check the recall status of your own regulated food, drugs and prescription items here.
11/22/2021      MDL 3014:  In re: Phillips Recalled CPAP, Ci-Level PAP, and Mechanical Ventilator Products Liability Litigation
Judicial Panel on Multidistrict Litigation

Parties to CPAP MDL agree to centralization and panel selects venue based on headquarters of corporate defendant. 

Three to four million users of Philips-branded Continuous Positive Airway Pressure (“CPAP”) and other sleep apnea and respiratory aids may have unknowingly inhaled toxic debris due to degrading polyester-based polyurethane (PE-PUR) sound abatement foam employed in certain “first generation” devices.  On June 14, 2021, defendants Koninkliijke Philips N.V. (“Royal Philips”), Philips North America LLC and Philips RS North America LLC issued a voluntary nationwide recall of certain CPAP, Bi-Level Positive Airway Pressure (Bi-Level PAP) and mechanical ventilators using this novel technology and manufactured prior to April 26, 2021. 
Philips had warned of this potential degradation, that may occur over time and under limited circumstances, two months earlier.  Less than two weeks before this warning, Philips had already announced the availability of “second generation” models.   Philips proactively worked with the U.S. Food and Drug Administration to manage the recall with FDA approving its plan to repair existing units by replacing the foam with a more stable alternative.  While the FDA deemed this a Class I recall due to the potential for “serious injury or death,” the recall’s corrective measures are expected to continue through September 2022 due to limited availability of replacement kits. 
Philips North America LLC and Philips RS North America LLC both joined with plaintiffs in requesting centralization, advocating for federal districts where a defendant corporation was headquartered.  Plaintiffs generally supported centralization but proposed a wide array of transferee districts largely unrelated to the litigation.  The panel prudently channeled all consumer protection and personal injury litigation to the Western District of Pennsylvania as a headquarters district where Philips RS North America LLC primarily manufactured the recalled devices.  The panel further entrusted transfer to an experienced transferee judge, the Honorable Joy Flowers Conti. 

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

This month’s fun Canada fact is that every year, the Canadian province of Nova Scotia gives a Christmas tree to the US city of Boston. The tree is a symbol of Halifax’s appreciation for help given by Boston residents after a ship exploded in Halifax in 1917. As a Canadian-American dual citizen, l love seeing mutual respect between my countries. I am also thrilled that I am going home to Canada for Christmas this year—it’s been two years since I’ve been home for the holidays.
I have two asbestos cases this week. In the first, plaintiffs successfully consolidate two asbestos actions for trial. The second is an update to a case discussed in my September column—after a New York District Court held that it lacked personal jurisdiction over a defendant, it granted plaintiff’s motion to transfer the case to California Federal Court.
11/16/21         Lanza/Kranichfeld v. Kaiser Gypsum
New York Appellate Division, First Department
Plaintiffs successfully consolidate two asbestos actions containing common questions of law and fact for trial.

Plaintiffs applied for a joint trial order for two separate asbestos exposure actions in NYCAL, on the grounds that the actions involved common questions of law and fact. The Court held that defendant, a manufacturer of asbestos-containing products, failed to establish that it would be prejudiced by a joint trial of the actions. The Court noted that: 1) defendant was the sole defendant in both actions; 2) counsel in both actions were identical; 3) plaintiffs’ decedents were exposed to the same product manufactured by defendant for nearly identical periods of time; and 4) both decedents died of the same disease. Although one decedent was a painter and the other a carpenter, both were allegedly exposed to asbestos as a result of sanding and cutting the same product manufactured by defendant. Although decedents were exposed to different products not manufactured by defendant, the Court held that this disparity could be addressed through specifically tailored juror instructions and special verdict sheets. Thus, the Court issued a joint trial order for both actions to be tried together.
11/5/21           Paroni v. Gen. Elec. UK Holdings
U.S. District Court, Southern District of New York
District Court grants plaintiff's motion to transfer the case to California.

This is an update to the Paroni v. General Electric UK Holdings Ltd. case we discussed in September’s column. As a refresher on that case, plaintiff alleged that her decedent husband was exposed to asbestos during his work on a wind turbine manufactured by Ruston Gas Turbines, Ltd. (“Ruston”), and that said exposure caused his mesothelioma. Plaintiff commenced suit against Ruston’s successor in interest, Alstom SA (“Alstom”). During discovery, the parties learned that General Electric UK Holdings Ltd (“GEUKH”) was the correct entity, and they substituted GEUKH for Alstom. The Court granted GEUKH’s motion to dismiss for lack of personal jurisdiction. However, the Court stated it would entertain Plaintiff’s motion to transfer the case to California to cure the personal jurisdiction defect.
Per 28 U.S.C. Section 1406(a), the district court of a district in which a case is incorrectly brought may transfer a case to a district court in which the case could have been brought, if such a transfer serves the interests of justice. In determining whether a transfer would serve the interest of justice, the Court considers several factors: 1) whether transfer would alleviate a procedural obstacle; 2) whether plaintiff would obtain personal jurisdiction over the defendants if transfer occurred; 3) whether transfer would severely prejudice the defendants; and 4) whether the merits of the case are “clearly doomed.”
Applying these factors here, the Court found that to the extent plaintiff’s claims would be time-barred in California, a transfer would alleviate that hardship, as GEUKH agreed to waive its statute of limitations defense. Second, decedent’s injuries occurred in the course of his employment, centered in California, and Ruston purposefully availed itself of California by contracting for repair and maintenance services in California. Thus, transfer would enable Plaintiff to obtain personal jurisdiction over GEUKH. Third, the Court found no evidence that transfer would prejudice GEUKH. Finally, the Court found that plaintiff’s case was not clearly doomed, since transfer to California would cure the only procedural defect at issue—lack of personal jurisdiction over GEUKH.

V. Christopher Potenza
[email protected]
Brian F. Mark
[email protected]


Michael J. Williams
[email protected]

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