Products Liability Pointers - Volume II, No. 3


Volume II, No. 3

Wednesday, March 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



It is amazing to think that we have just marked one year since the start of this pandemic.  March 2020 was quite an anxious and scary time as we all adjusted, on a moment’s notice, to complete societal lockdown, remote working, and homeschooling.  The early days were particularly scary as little was known or shared about this novel coronavirus ravaging the world as we knew it.  We hoarded toilet paper, refused to touch doorknobs, sanitized our groceries, and became experts at Zoom and online shopping.  We have learned a lot over this year, and thanks to an emerging vaccine, a better understanding of how to contain the virus, and the importance of wearing a mask, we at least have moved into hybrid mode.  Sadly, there is still no St. Patrick’s Day parade, which is an unofficial anniversary in my house as it was where I first met my wife.  I will still take the opportunity to lecture on the difference between a four-leaf clover and a shamrock.  The shamrock is associated with Ireland because Saint Patrick, Ireland’s patron saint, is said to have used the plant as a metaphor for the Catholic Holy Trinity.  The four-leaf clover is a rare variation of the same plant, and while a symbol of luck, it has nothing to do with St. Patrick’s Day. While we are on the topic, it’s St. Paddy’s Day, not St. Patty’s Day.
We have some exciting firm news to share with the addition of litigation attorney Scott D. Kagan to our firm’s Albany office, helping us to better serve our clients in the Capital District, North Country, and Hudson Valley.  Scott brings a strong background in complex products liability, commercial transportation, construction accident, and catastrophic injury litigation. 
I would also like to welcome our newest columnist, Nick Heintzman, who will be handling all the news that is fit to print in the world of toxic torts, asbestos, and lead paint.  Nick is a recent graduate of Duke Law School and is currently sulking over the Duke basketball team’s failure to make the NCAA tournament for the first time in 25 years.  Nick was raised in the Buffalo suburb of Toronto, Canada, and will be bringing his cross-border sensibilities to his column.
If you are looking to enhance or refresh your knowledge on insurance coverage, my partner and insurance coverage guru Dan Kohane, along with his good friend, attorney John C. Trimble of Lewis Wagner, LLP in Indianapolis, are presenting multiple webinars on the ABCs of insurance coverage this spring. It is a 75-minute interactive program with time for Q&A open to all. If interested, please contact Dan at [email protected].


And now for this month’s St. Patrick’s Day dad joke:
What is a leprechaun’s favorite music?



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.  Contact Joe Brown at [email protected] to subscribe.

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.



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

2/23/2021        Nemes v. Dick’s Sporting Goods, Inc.
U.S. District Court, Southern District of New York
Lack of expert evidence supporting the feasibility of alternative design to crossbow is fatal to design defect claim.
Plaintiff Jean Nemes brought claims for strict product liability, including several design defect theories, after she unintentionally severed the thumb on her left hand while using a “Lady Raptor FX” crossbow manufactured by Barnett Outdoors, LLC and purchased by her husband at Dick’s Sporting Goods. 
Prior to the accident, the plaintiff, a retired school secretary, took up the sport of target shooting with a crossbow and trained on her husband’s Barnett “Reverse Raptor” crossbow.  During this time she was aware that the crossbow had a rail attached to the stock of the crossbow and below the track where the string travelled to propel the bolt (“finger barrier”).  She appreciated the risk of having any body part in the flight track while using her husband’s Reverse Raptor.  After becoming acquainted with target shooting, her husband purchased her the Lady Raptor.  She read the Lady Raptor owner's manual cover to cover and testified that she read and understood all the warnings and instructions in the manual.  She understood that she was supposed to keep the fingers of her gripping hand below the finger reminder and not in the way of the string path while she was firing the Lady Raptor, but believed that the finger reminder would under all circumstances prevent her finger from being in the way of the string.  On the day of the accident, while she believed that the thumb of her left hand (which was gripping the fore-grip) was below the finger reminder rail, it was not, and as she squeezed the trigger, the bow string struck her left thumb, caused a significant laceration and nerve damage, and amputated part, or all, of her thumb.
The crux of the litigation was argument over the “finger reminder” or “finger guard” design feature.  Plaintiffs contend that this guard it is expected to, under all circumstances, prevent the finger from unintentionally rising into the path of the flight track.  Defendants contend it is only supposed to provide tactile feedback to cause the user to be mindful of their finger placement while using the Lady Raptor.
After extensive expert discovery, the Defendants were successful in precluding plaintiffs’ expert from offering an opinion about a feasible alternative design to the Lady Raptor.  This proved fatal to their claim because without the ability to present expert evidence as to the feasibility of an alternative design, they cannot satisfy their burden to set forth a prima facie strict products liability claim.  Plaintiffs argued that the lack of expert evidence supporting the feasibility of alternative design is not fatal to their design defect claim because they can present sufficient non-expert evidence to make out a prima facie strict liability claim.  While noting the seemingly “competing” caselaw cited by the parties on whether expert evidence is required to support alternative design theory, the court agreed with plaintiff that non-expert testimony may be sufficient to establish a feasible alternative design where the economic and technological feasibility of an alternative design is obvious or capable of being understood by laypersons through the use of non-expert evidence.  The court found in this case however, that a lay person would not readily understand, much less find obvious, the nature of crossbow design and that reasonableness of a crossbow design and whether a wider finger guard on the Lady Raptor is a feasible alternate requires some comprehension of engineering design. Furthermore, even if the design of a crossbow was obvious to a layperson, the evidence presented by plaintiffs fails to establish that the alternative design would have led to overall improved safety.  As plaintiffs’ evidence, at best, suggests that defendants could have fabricated a wider finger guard, but does not demonstrate (beyond speculation) that this would have prevented plaintiff’s finger from rising above the finger guard (into the line of fire), nor is there any proposed testimony or other evidence establishing that, in the aggregate among consumers, the presence of a finger guard would have reduced the incidents of similar harms. 


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

With vaccine numbers continuing to increase and the temperatures slowly beginning to rise, there is light at the end of the tunnel.  With this in mind, many courts in the Metro NYC area have recently announced that trials will begin on March 22, 2021.  As that date is rapidly approaching, we should soon know how trials will proceed and how fast we should expect them to be conducted.  As this is an area that will be changing often, we will certainly keep you updated.
Living on an island often requires travel by ferry.  In fact, I have personally spent many summer days sitting on a ferry going from Long Island to Shelter Island, Fire Island, and to Connecticut.  I have even taken a few trips from NYC to Staten Island.  After reading this month’s case, Nasser v. Port Imperial Ferry Corp., in which the district court examined several claims involving a fall, including a claim for negligent design and manufacturing defect, I will surely think twice while using the stairs.

3/09/21 Nasser v. Port Imperial Ferry Corp.  
U.S. District Court, Eastern District of New York
Court dismisses claims of negligent design and manufacture as defendant demonstrated that it did not construct or design the vessel in question.
The plaintiff in this personal injury action broke his ankle falling down a set of stairs while disembarking from a ferry.  He claimed that he was caused to fall because the second step was too narrow and the distance between steps was not the same ratio.  He also claimed that he could not break his fall because the handrail was too high.  The evidence revealed that the top two steps were of unequal dimensions, that the steps varied in height, and that the height of the handrail was four inches higher than the U.S. Coast Guard’s regulations allow. 
At issue was whether the defendant breached a duty to passengers by failing to properly construct and maintain the stairwell.  The defendant moved for summary judgment arguing that it was not negligent, relying on an argument that the Coast Guard impliedly waived compliance with its regulations by certifying the ferry for operation.  This contention was thoroughly rejected by the Court, finding that reliance on Coast Guard inspections, standing alone, does not negate defendant's obligation to conduct its own inspection. 
After determining that there was insufficient evidence to support a finding of summary judgment in defendant’s favor as to the negligence per se and common law negligence claims, the Court turned to the claims of negligent design and manufacturing.  As the evidence demonstrated that a non-party had constructed and designed the ship, the Court dismissed the plaintiff’s claims for negligent design and manufacture against the ferry operator.


Failure to Warn
By: Brenna C. Gubala

Every March, I think, in like a lion, out like lamb.  Early March found us snowed in, and now mid-March, we’ve had fifties and sixties-degree days, so that now back to thirties, brown mud and well, no snow is well offensive. I know spring hit hard and fast on the ski hills, which has me sad. I snow shoed on equal parts mud and ice this weekend. But I trust, the lamb is coming. 
We have exciting changes at the firm, welcoming new lawyers. We welcome Nick Heintzman, featured now in this newsletter, to the firm, and to the bar. Scott Kagan, an experienced products liability litigator, is joining our Albany office.  Our cases are moving along and the courts tell us trials will return March 22...only time will tell.
There were two interesting cases in the failure to warn categories out of the District Courts with not totally surprising results.  The “learned intermediary doctrine” was found to apply under Vermont law, and a failure to warn claim was dismissed as the plaintiff suffered from the same side-effect acknowledged to be contained on the FDA approved packaging.

Be well.

3/09/2021   Leavitt v. Ethicon
U.S. District Court, District of Vermont
District Court finds that Vermont law supports learned intermediary doctrine.
Plaintiff brought a products liability claim against defendants Ethicon and Johnson & Johnson following the implantation of tension-free vaginal tape (“TVT”) for the treatment of stress urinary incontinence. The defendants moved for summary judgment on the failure to warn claim, among others.
In applying Vermont law, the District Court granted the defendant’s partial motion for summary judgment based on failure to warn because the learned intermediary doctrine bars the plaintiff’s negligence claims to the extent they are based on the failure to directly warn plaintiff.
Both plaintiff and her doctor testified that they did not rely on instructions for use produced by the defendants or rely on anything the defendants published as a warning against its product. Under the learned intermediary doctrine, a product or device manufacturer may provide warnings to a patient's physician and need not provide warnings directly to the patient. The doctrine is based on the principle that prescribing physicians act as “learned intermediaries” between a manufacturer and consumer and, therefore, stand in the best position to evaluate a patient's needs and assess risks of a particular course of treatment.
While Vermont has not adopted this doctrine, the District Court must predict how the highest court of Vermont would resolve the uncertainty.  Here, the court found that Vermont would adopt the doctrine based on the Restatement because the court looks here when Vermont law is undeveloped. In addition, forty‑eight states have adopted the learned intermediary doctrine (or federal courts have predicted they would adopt). And lastly, the court reasoned the doctrine reflects the realities of patient consultations and identifies the physician as the best source of information regarding the risks and benefits of a particular device.
The court notes that the plaintiff in this case exclusively relied on her physician’s warnings regarding the use of the device. The physician in this case testified she looked at the product Instructions for use “maybe once as a resident” and did not rely on it in discussing the device with the plaintiff because “it’s not super helpful to read a really long thing that’s put out by the manufacturer.” Thus, there is no proximate cause on the instructions and the failure to warn claim was dismissed.
However, the failure to warn claim based on the brochure was denied. The plaintiff’s physician acknowledged she would have provided the device brochure to plaintiff and she typically discussed the information in the brochure with her patients. The court found this raised a genuine issue of fact regarding the causal connection between the alleged failure to warn in the brochure and the injuries.
3/09/2021   Gioia v. Janssen Pharmaceuticals
U.S. District Court, Eastern District of New York
Suffering from warned-against risk cannot serve as a basis for a failure to warn claim.
The pro se physician plaintiff brought an action Janssen Pharmaceuticals, manufacturers of the drug Invega, claiming she suffered side effects of the drug.  The Court granted defendant’s Rule 12(b)(6) motion to dismiss the complaint with limited leave to amend.
The plaintiff took Invega and claims she suffered memory loss, hypothyroidism, Horner's syndrome, nerve damage, motor tremors, vocal tics, confusion, loss of taste and sensation, PTSD, metabolic syndrome, including hypertension, diabetes, and stroke as a result. She claims this ended her career as a primary care physician.

The defendants moved to dismiss the failure to warn claims based on the complaint’s failure to plead facts indicating how the provided warnings were inadequate. The defendants offered the FDA-approved package insert that specifically warns of possible side effects including hyperglycemia, diabetes, hypertension, stroke and tardive dyskinesia.  Plaintiff's mere conclusory allegations coupled with plaintiff's allegations of suffering from the very side effects of which defendant warns, require dismissal of plaintiff's claim.

The court dismissed the failure to warn claim without prejudice but gave specific limiting instructions with regard to filing an amended complaint instructing the plaintiff that she must allege why defendant failed to provide adequate warnings to her physician.


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

I am thrilled to be contributing to Products Liability Pointers for the first time. An important part of my background is that I am a Canadian-American dual-citizen. I was born in Durham, North Carolina, but grew up in Canada as my family is Canadian. My hometown is Waterloo, Ontario, an hour of west of Toronto. For law school, I returned to my North Carolina routes and attended Duke University. I am now practicing in Buffalo. Once the border reopens, I hope to take advantage of the two-hour drive from Buffalo to Waterloo. In the meantime, I will share a fun fact about Canada in every column.
Today’s fact may be cooler than it is fun: the coldest temperature ever recorded in Canada was -81.4°F (us Canadians would say -63°C) on February 3, 1957 in Snag, Yukon. Hopefully, that makes us feel a little warmer while we tough out the last few days of winter!
One interesting piece of asbestos related news: there was a significant defense verdict last week in a Zoom asbestos trial in Seattle, Washington, as the jury rejected the claim of the plaintiff, a former shipyard worker suffering from mesothelioma, seeking $27 million against a manufacturer of boiler insulation.
We have just one oddball decision on a pro se claim this month out of the Southern District of New York in which the court dismissed plaintiff’s claim of damages from exposure to an asbestos abatement product. Did I mention he does not suffer from any asbestos-related illness or disease?
02/26/21     McDaniel v. City of N.Y., et al.
U.S. District Court, Southern District of New York
Pro se plaintiff with no asbestos related illness or disease has no claim of damages from prison asbestos abatement project.
The Plaintiff, a prisoner at Rikers Island, brought a pro se suit against the City of New York alleging that he was exposed to a major asbestos abatement project in the inmate intake area. He alleged the asbestos exposed him to a substantial risk of serious harm and that the City of New York was deliberately indifferent to his exposure, in violation of his Fourteenth Amendment rights. Plaintiff claimed that over ten months, he spent 2 full days in the intake area and was there on another 35 separate occasions, each time for about 3-4 hours. Plaintiff alleged that the prison warden knew of, and disregarded, the risk of asbestos because plaintiff observed an abatement contract for asbestos on the intake room’s wall. Plaintiff also claimed that a doctor at the prison neglected to run proper tests on plaintiff after plaintiff informed the doctor that the asbestos made plaintiff breathe out a “white spectrum.”
The Court held that the intensity and duration of plaintiff’s asbestos exposure was too insignificant to constitute a substantial risk of serious harm. The court also noted that plaintiff failed to allege that he saw any exposed asbestos or asbestos particles and that he failed to allege that he was in the intake area during the time of the abatement or suggest he was exposed to asbestos in the months following the abatement. As such, the Court dismissed plaintiff’s complaint on the grounds that it failed to state a claim upon which relief could be granted.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

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