Products Liability Pointers - Volume II, No. 2


Volume II, No. 2

Wednesday, February 17, 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



Well, here we are in the midst of February, the shortest month that certainly feels like the longest.  While Covid numbers in New York are slowly declining, and vaccine administration, far from perfect, is getting better, there are still no signs of the courts returning to full capacity and civil trials are still suspended.
Recognizing many of the adaptations and use of technology made by the courts and counsel in response to the COVID-19 pandemic however, pursuant to Administrative Order 270/20, New York’s Chief Administrative Judge issued 29 additions and revisions to the Uniform Civil Rules for the New York Supreme and County Courts.  These rules, designed to improve communication and efficiency, require attorneys (and their staff) to comply with new procedures and formalities throughout all phases of litigation.  These revisions include formal requirements to confer with opposing counsel before judicial intervention, greater use of technology in written submissions and communications with the court, and substantive limitations on discovery such as limits on the number and length of depositions.   Additional insight and analysis is provided here
In a further effort to ease the immense backlog of trials and encourage alternatives to traditional juries, the New York State Unified Court System has just released the new “Virtual Bench Trial Protocols and Procedures.  This guide seeks to inform participants on what to expect during a virtual bench trial, including issues such as decorum in a virtual proceeding, technological safeguards, public access, and the presentation of documents, physical evidence, and witness testimony. “It’s the wave of the future, Dude.  100% electronic.”
As states and municipalities struggle to acquire available vaccines, there are similar struggles to find appropriate distribution sites and personnel.  If you are worried about liability for vaccine administration, the PREP Act should have you covered.  The Declaration under the Public Readiness Emergency Preparedness Act (PREP Act) provides immunity to “covered persons” from suit and liability under federal and state law claims of loss caused by, arising out of, relating to, or resulting from the administration or use of countermeasures to diseases and public health emergencies.  Just recently the U.S. Department of Health and Human Services (HHS) issued an amendment to add additional categories of qualified persons authorized to prescribe, dispense, and administer the COVID-19 vaccines authorized by the U.S. Food and Drug Administration.
The appellate courts are also still facing a backlog of decisions, and product liability cases are noticeably light this month.  There are a couple of interest however, including a food poisoning case brought as a strict product liability claim, and whether a warnings claim against a medical device manufacturer is preempted by federal statute.


For this month’s Dad Joke (with a nod to a classic Simpsons scene):

What did the train engine say to the caboose on Valentine’s Day?
I choo-choo-choose you!


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:  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 be added to the mailing list.


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

Our thoughts and prayers are with all of our friends across the country dealing with unprecedented winter weather, especially those in the southern states unaccustomed to snow and ice.  Valentine’s Day was ruined for many as shipping hubs throughout the south were forced to close, leaving countless dozens of undelivered roses to wilt in a cold warehouse.  While we have had more snow this year than we have had in a while, my house-bound kids are loving it.  My back, not so much. 
It is still too early to tell when trials will resume in the Metro NYC area.  Without a lot of clarity from the courts, we get a lot of rumor and innuendo.  During a recent virtual conference in Suffolk County, the parties were informed that they are aiming for in-person conferences by late spring/early summer.  Trials are not expected until the fall at the earliest.  I have heard similar tales that the Bronx does not expect to conduct in-person trials until the fall.  While trial dates remain questionable, cases continue to move forward at a quick pace.  The recently enacted new civil practice rules will ensure that cases keep moving forward.
As there were no manufacturing defect cases to report this month, we bring you a products liability case involving food poisoning.  In Crosbie v. KBC Food Corp., the Appellate Division, Second Department reversed the trial court’s grant of summary judgment to the defendant, holding that the defendant failed to meets its burden of establishing that the food it sold was not contaminated or that any such contamination did not cause the plaintiff's illness.
1/13/21           Crosbie v. KBC Food Corp.  
Appellate Division Second Department
Defendant failed to establish that the food it sold was not contaminated or that the contamination did not cause the Illness.
In this products liability action, the plaintiff alleged that she became ill with a listeria infection after eating chickpea salad purchased from a store owned by the defendant.  The defendant had purchased containers of the chickpea salad for its stores, which were eventually recalled after listeria was discovered in samples. 
The Appellate Division noted that to recover damages for personal injuries allegedly caused by contaminated food, a plaintiff must establish that the food served by the defendant was defective and that his or her injuries resulted from consumption of that food.  On the other hand, a defendant seeking summary judgment in a food poisoning case must demonstrate that the food it sold was not contaminated or that any such contamination did not cause the plaintiff's illness.
The Appellate Division, in reversing the trial court, held that the defendant failed to demonstrate that the plaintiff's illness was not caused by her consumption of contaminated chickpea salad purchased from the defendant or that any finding that the defendant’s chickpea salad was the cause of the plaintiff's illness would be merely speculative. Notably, the defendant’s expert’s opinion that “[t]he source of [the plaintiff's listeria] infection is not clear,” was insufficient to meet its burden.
The Court also found that the trial court should not have sanctioned the plaintiff for the loss of the listeria cultures and samples as the plaintiff was never in possession of the listeria cultures and samples, did not discard the cultures and samples in an effort to frustrate discovery, and cannot be held responsible for a nonparty's apparent discarding of the cultures and samples.  


Failure to Warn
By: Brenna C. Gubala

Hoping this winter finds you with the right amount of cozy and snowed in (safely).  I do hope you are finding a way to be outside in winter to soak up some sunshine and visit with friends.  For me, that means skiing, snowshoeing, and any way I can bundle up my kids to get out of the house. We tried cross-country skiing this weekend with my almost-two-year old in a backpack and my three-year old in a trailer hitched to my husband.  It was working great, and the stunning peacefulness of woods and fresh snow cannot be overstated. That is, until I realized we forgot nap time and snacks, and my son let me know it.
But even if you are getting outside, there is no denying that another Covid winter is certainly a challenge. We are keeping busy tracking the new court rules and keeping on top of files to be trial-ready whenever that may be. We are ready.
In this month’s decisions, we have a federal preemption decision out of the Fourth Department in which the court distinguished failure to warn claims from a failure to report prior incidents to the FDA. 
Be well. Stay warm. 

2/05/2021        Barone v. Bausch & Lomb, Inc.
Appellate Division, Fourth Department
Federal statute supports dismissal of warning claims against medical device manufacturer on preemption grounds.
Defendant FCI Ophthalmics, Inc. moved to dismiss the product liability action on the grounds that the claims against it are preempted by the Medical Device Amendments (MDA) to the Federal Food, Drug and Cosmetic Act of 1938. There is no dispute that the medical device at issue is a class III medical device with respect to which the federal government has established requirements. The issue before the court was whether the common law claims based on New York requirements are “different from, or in addition to” the federal requirements that relate to safety and effectiveness. If the state law claims are different, those claims are preempted by the MDA. If they parallel the federal requirements, they are not preempted, and can go forward.
The plaintiff claimed that the failure to warn claims parallel federal regulations and are not therefore preempted. Plaintiff pointed to FDA regulations that require a manufacturer to report to the FDA any known incidents in which their products cause serious injury or death. The court reasoned that the claims were premised upon defendant’s alleged failure to warn plaintiff and his eye doctor by placing warnings – and not on any alleged failure to report incidents to the FDA. The plaintiff fatally did not identify any federal statute or regulation that required defendants to provide warnings to consumers or their physicians. As a result, the Fourth Department found the failure to warn claim was preempted by the MDA, and the amended complaint should have been dismissed.


Toxic Torts, Asbestos, and Lead Paint
By: Marina A. Barci

Hope all is well! Not to talk about the weather, but this winter storm sure does make staying home much more enticing. I’ve taken to making homemade cappuccinos each day, and I must say they make the cold weather a bit more bearable. It certainly helps that we got a really nice espresso machine for Christmas that I can use for this endeavor!
For this month’s trivia facts:

  1. Cats can be allergic to people.
  2. Benjamin Franklin was inducted into the International Swimming Hall of Fame.
  3. The majority of the world’s polar bears live in Canada.

01/21/21         Morgan v. Port Authority of New York and New Jersey, et al.
Appellate Division, First Department
Port Authority denied summary in asbestos exposure claim based on alleged control over airport construction.
The decedent plaintiff allegedly contracted mesothelioma from exposure to asbestos-containing products in the course of his employment with Pan American World Airways, Inc. at John F. Kennedy International Airport in the 1970s. The Port Authority had a lease agreement with Pan Am for the construction work at JFK. Under the lease agreement, before Pan Am commenced any construction work at the airport, Pan Am needed to obtain the Port Authority's advance approval to Pan Am's specifications, including “materials,” and also gave Port Authority the right to conduct testing on samples of the materials. Pan Am's project manager testified that Port Authority dictated what had to be done, would make determinations as to which materials needed to be removed or not removed, and that the Port Authority's resident engineers inspected the site to ensure compliance with its specifications. Further testimony from the decedent’s coworker raised questions of fact as to whether the regular application of asbestos-containing products in the terminal caused decedent to be exposed to asbestos fibers in the air. The Court determined that there were issues of fact as to whether the Port Authority had the authority to control the activity bringing about the injury, exposure to asbestos-containing materials in the airport terminal where decedent worked, and thus Port Authority’s motion for summary judgment was denied.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]


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