Products Liability Pointers - Volume II, No. 4


Volume II, No. 4

Friday, April 23, 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



Have you heard the one about the lawyer who had his case dismissed for not wearing a mask in court?  Actually, it’s not a joke as a Brooklyn judge dismissed the case of a plaintiff for counsel’s objections to wearing a mask in one of the first cases to return to the courtroom this spring (although in fairness he offered to wear a face shield).  Certainly not smooth sailing, but civil trials are resuming at a snail’s pace.  Criminal and domestic cases are getting priority, and next in line are civil claims with a trial preference due to age or health of a party.  Most complex multi-party litigation is still getting pushed into 2022.   
Despite a year with almost no trials (although I did sneak one in just before the world closed), we are proud to have five litigation attorneys featured in The Harmonie Group’s “2020 Significant Cases” publication.  With another year of almost no trials, I will be curious to see what constitutes a “victory” in 2021.  Putting on pants without an elastic waistband should count for something...
With many citing the budgetary constraints brought on by the pandemic as the driving force behind this legislation, New York has now legalized recreational-use marijuana with the passage of the Marijuana Regulation & Taxation Act (MRTA).  Marijuana production, distribution, and use will be regulated like alcohol and tobacco under the supervision of the New Your State Liquor Authority.  The formation of a specialty practice group is already underway with news and guidance for employers.  Stayed tuned for more information as this is likely to lead to future product liability claims, including failure to warn and/or improper labeling.  I certainly would like to litigate that first defective marijuana claim (was it too strong, or not strong enough?).
I would be remiss if I did not give a shout-out to our own Brian Mark for his recent Primer on Common-Law Indemnification. Brian is available for a reasonable price (free) via webinar to entertain your large or intimate gathering on all things indemnity.  Contact Brian for details.
Further, with “no recourse” litigation loans and financing to plaintiffs becoming more prevalent, Nick Heintzman, in his Discovery of Personal Injury Loans and Litigation Financing Under the “American Rule” in Non-Loser Pay Jurisdictions addresses discoverability and the practical impact these loans have on claims handling.

We have a modest but interesting array of cases to discuss this month, including a plaintiff narrowly escaping summary judgment on proximate cause involving a design defect on a commercial tire-changing machine, a District Court permitting a plaintiff to plead design defect and manufacturing defect in the alternative, and an asbestos case dismissed on statute of limitations grounds with the District Court applying the rule of law in the jurisdiction where the exposure occurred.
And now for April’s dad joke (which I don’t find funny in the least):


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.



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

3/29/2021        Bausenwein v. Snap-On Inc.
U.S. District Court, Northern District of New York
Summary judgment not a snap as District Court finds issue of fact as to whether alleged safety device on tire changing machine could have prevented injury.
Plaintiff, a tire shop technician, alleges that he was injured while changing a tire with one of Snap-On's commercial tire-changing machines because the product failed to include an important safety mechanism. Unlike previous models manufactured and sold by Snap-On, this model did not include a “safety restraint arm” as standard equipment. The safety restraint arm is placed above a rim during inflation and reduces the risk of injury from a catastrophic tire or rim failure by keeping the wheel in place on the pedestal.
Defendants moved to dismiss the design defect claim on proximate cause grounds, alleging that the safety restraint arm is designed to potentially prevent rim ejections during inflation and the tire inflation process had already been completed at the time of the explosion. Because the restraint arm must always be moved out of the way before the tire can be removed from the machine and returned to the customer, the notion that the safety restraint arm would have even been engaged at the time of the explosion is based purely on speculation.
Plaintiff presented the testimony of his father, who testified that he would not have moved the safety restraint arm until the clamps were removed from the tire.  Plaintiff alleged that the clamps were still on the tire at the time of the explosion and thus the safety restraint arm would have been in place and would have prevented his injuries.
To show that the absence of the safety restraint arm was a “substantial factor” causing his injury, plaintiff needs some evidence that the safety restraint arm would have still been engaged during this tire removal process, or perhaps some evidence that the safety restraint arm was also designed to protect a user when mounting and/or dismounting a tire from the machine.
Although characterizing plaintiff’s evidence as not particularly persuasive, in viewing the facts in the light most favorable to the plaintiff, the Court denied defendant’s motion for summary judgment finding that a reasonable jury could conclude that the explosion occurred at a moment in time when the safety restraint arm would still have been engaged.


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

Well, in-person trials have resumed.  So far, it seems like the courts are taking it slow and ensuring compliance with safety protocols.  In-person appearances are also starting to resume.  As I’m writing this, one of our attorneys is in Suffolk County Supreme Court for a court ordered in-person appearance.  The general consensus is that in-person appearances will become routine in the very near future, with the exception of preliminary conferences and other uncontested discovery conferences.  Those will be done by submitting joint discovery stipulations or orders prior to the scheduled conference date.  Of note, the Chief Judge recently announced that all judges and staff will be required to physically return to work in their assigned courthouses effective May 24, 2021.
In Thomas v. ConAgra Foods, Inc., the U.S. District Court for the Western District of New York denied defendant’s motion to dismiss the pleadings, holding that a plaintiff is entitled to plead in the alternative both design defect and manufacturing defect. 
3/29/21         Thomas v. ConAgra Foods, Inc. 
U.S. District Court, Western District of New York
Court denies motion to dismiss, permitting alternatively pled design defect and defective manufacturing claims to proceed.
The plaintiff was injured while working in a kitchen when a can of cooking spray vented its contents, resulting in an explosion and flash fire.  The can of cooking spray, which was “designed, manufactured, tested, filled, labeled and/or sold” by the defendants, had been stored and used in a reasonably foreseeable manner and was located “some distance away from a heat source in the campground kitchen.”
The plaintiff asserted numerous causes of action, including claims for defective design, defective manufacturing, failure to warn, and negligence.  The defendants moved to dismiss, arguing that the design defect claim was not adequately pled because the plaintiff’s only plausible allegation for why a cooking spray container suddenly began venting while some distance away from a heat source is that it was manufactured incorrectly. 
Noting that the defendants’ motion was made early in the litigation, as opposed to after the completion of discovery, the Court rejected the defendants’ argument and held that a party is entitled to plead in the alternative.  At the trial stage, because design defect claims require that the product have met all design specifications, and manufacturing defect claims require that the product have deviated from design specifications, the two are often mutually exclusive.  However, a plaintiff is fully entitled to plead claims for both design defect and manufacturing defect in the alternative.  This pleading strategy is acceptable because initially a plaintiff may not have the scientific, technical, or factual knowledge required to know which kind of defect exists.


Failure to Warn
By: Brenna C. Gubala

Happy April, with snow on my tulips this morning! Spring is coming, we can all feel it and with it, the return of hope and joy. 
I was one of the many who watched the Derek Chauvin trial with legal interest and human interest.  With our trials still on pause, it was captivating to have the entire proceeding livestreamed for the world to watch. I was curious as to how voir dire would go in a case that has commanded the nation’s attention. How effective would each side’s strategy be for the jury (and the nation).  How would each side use the many different videos of the footage and how effective would it be?? How much would Covid protocols and mask wearing impact the effectiveness of the courtroom presentation?  As a litigator, these questions were fascinating, and as an American, it was heart-wrenching.
Not many cases on the failure to warn this month, but no big surprise, another decision regarding mesh inserts, and another defendant’s motion to dismiss granted, with the court finding that the manufacturer had no duty to place the warnings contained on the product instructions on the product brochure.

3/30/2021   Green v. Covidien LP
U.S. District Court, Southern District of New York
No meshing around.
Plaintiff brought an action against Coviden LP, manufacturers of Symbotex Composite Mesh, which was used by her doctors to during the course of a hernia repair.  The defendant filed a Rule 12(b)(6) motion to dismiss the Second Amended Complaint.  This was in fact plaintiff’s third attempt at drafting a Complaint. The Court granted the defendant’s motion to dismiss but denied leave to amend on that basis.
Previously in dismissing the Amended Complaint's failure to warn claim, the Court ruled that defendant's warnings for the Symbotex Mesh specifically warned of the injuries plaintiff allegedly suffered, and that plaintiff had not plausibly alleged that defendant's warnings were misleading or inaccurate.
In its Second Amended Complaint, therefore, Plaintiff alleged that Defendants’ warnings for the Symbotex Mesh were inadequate and insufficient as it did in its First Amended Complaint.  The new allegations however included a failure to warn of the risk of “mesh migration or ‘sliding’ out of place”, bowel incarceration, need for removal surgery, and development of chronic pain, all of which plaintiff suffered.
Plaintiff also claimed that the brochure for the product did not include a warning although it did direct its users to the package insert for complete instructions. The package insert warned of complications “typically associated with surgically implanted mesh: seroma, hematoma, recurrence, fistula formation, adhesions, infection, inflammation, chronic pain, and/or allergic reactions to the components of the product.” The package insert was provided to the physician.
The court found that the instructions for use do warn of the allegation’s plaintiff is making.  Plaintiff however complains that the Symbotex Mesh brochure and website do not warn of these risks contained in the instructions for use. Plaintiff however cites no cases suggesting product warning must be included in brochures or websites. Under New York law, the court found, a manufacturer’s duty to caution against side effects is fulfilled by giving adequate warning through the prescribing physician, and not directly to the patient. 
Here, plaintiff acknowledges that the mesh brochure directs users to the package for complete instruction, and those instructions contain warnings. Thus, the failure to warn claim was dismissed.


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

As I write this, I am watching a light but persistent snowfall out my office window. To cope, I am indulging in extra cups of tea and coffee. While in undergrad, I worked as an outdoor painter to pay the bills. We always started work in early May, and I recall a few days of snow in those early May days. I’m thankful to be safely enclosed in my office and not on a ladder with a paintbrush in my hand! I hope this is Winter’s last stand and that nothing but warm weather is ahead.
Here’s my fun Canadian fact for the month: Canada has the longest highway in the world! Our Trans-Canada Highway covers an astonishing 4,860 miles, or, as us Canadians say, 7821 kilometers.
Let’s hope for better weather next month!
In a rare win for the defense in an asbestos case (forum matters!), the District Court dismissed a claim on statute of limitations grounds after the Court engaged in a well-reasoned choice of law analysis.

4/9/21 Castro v. Colgate-Palmolive Co.
U.S. District Court, Western District of New York
U.S. District Court applies choice-of-law analysis to determine that Plaintiffs’ claim was time-barred by Virginia statute of limitations.
Plaintiff commenced a lawsuit against defendants for their alleged fault in causing his mesothelioma, which he was diagnosed with on February 29, 2016. Plaintiff alleged he was indirectly exposed to asbestos through Revlon’s talcum powder products and that this exposure only occurred in Virginia. Revlon moved for summary judgment and argued that plaintiffs’ claims were time-barred.  Revlon argued that under New York choice-of-law rules, Virginia’s two-year statute of limitations should apply to plaintiffs’ claim because Virginia was where the alleged wrongdoing occurred.
The District Court agreed that plaintiff’s claim was time-barred, but its analysis differed from Revlon’s. The Court reasoned that since, under New York law, statute of limitations law is procedural, New York should apply its own statute of limitations law, despite the fact the entirety of the alleged wrongdoing occurred in Virginia. The Court turned to New York statute of limitations law, which instructs that when a nonresident plaintiff sues on a cause of action arising outside New York, the court should apply the shorter limitations period between New York and the state where the cause of action accrued.
Since plaintiffs admitted that they had resided in Virginia since 1974 and the entirety of the alleged injuries occurred in Virginia, the Court applied Virginia’s statute of limitations, which was two years from when the diagnosis of mesothelioma was communicated to plaintiffs. The diagnosis was communicated February 29, 2016, so, because plaintiffs did not bring their claim until February 2019, the Court held that plaintiffs’ claim was time barred.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]


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