Products Liability Pointers - Volume II, No. 6


Volume II, No. 6

Thursday, June 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



Congratulations New Yorkers!  Governor Cuomo has announced that 70% of adult New Yorkers have received at least a first dose of a COVID-19 vaccine.  As such, the State's COVID-19 restrictions are lifted for commercial settings, including retail, food services, offices, gyms and fitness centers, amusement and family entertainment, hair salons, barber shops, and personal care services.  Unvaccinated individuals are still responsible for continuing to wear a mask, per Federal CDC guidance.  Large-scale indoor events venues, pre-K to 12 schools, public transit, homeless shelters, correctional facilities, nursing homes, and health care settings, must still adhere to existing COVID-19 health protocols per CDC guidelines, however.
While on the topic of vaccines, are you curious as to whether your employer can require you to get a vaccine to return to work?  Hurwitz & Fine partner Joe Brown answers that question and more in his COVID-19 Vaccination Updates from the EEOC and New York State.
With restrictions for the most part gone, now come the fights over the scope and validity of the numerous Executive Orders passed during the pandemic.  A Western New York lawsuit over a couple’s Covid-19 deaths appears to be the first challenge to the immunity granted by the state to nursing homes and medical facilities.  
There has also been an appellate decision addressing a challenge to Executive Order No. 202.8 and the Governor’s emergency authority to “toll” statutory time limitations.  The Second Department, in Brash v. Richards, 2021 NY Slip Op 3436 (June 2, 2021), relying on Executive Law § 29-a-(2)(d), held that the Governor does have the authority to “alter” or “modify” the requirements of a statute, and thus can toll statutory time limitations during a state of emergency. This decision also addressed the important question as to whether this executive order was a “toll” or a “suspension.”   “Tolling” means that the time period that the order was in effect is not counted in determining the statutory time periods.  A “suspension” on the other hand means that the statutory time would have been extended but expires on the date the order expires, November 3, 2020.  Using these case facts as an example, respondent served notice of entry of an order on October 2, 2020, during which time the tolling order was in effect.  Thus, appellant had 30 days from the date the tolling order expired to file the notice of appeal, and thus the notice of appeal filed on November 10, 2020, was deemed timely.  Had this order instead been interpreted as a “suspension,” the time to file the notice of appeal would have been extend to, but expired on, November 3, 2020, and thus the notice of appeal filed on November 10th would have been untimely. 
Decisions are otherwise fairly light this month, but there are a few of interest.  Are logging boots defective if they are not chainsaw cut resistant?  Did a pro se plaintiff finally plead a cognizable cause of action against Amazon on a claim of defective toilet paper?  Can chrysotile asbestos cause peritoneal mesothelioma? 
We also proudly welcome Kara Eyre as our newest assistant editor of Products Liability Pointers.  Kara jumped in with both feet and brings you this month’s dad mom joke:
What do lawyers wear to work?
Law suits.


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.


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

Despite court personnel returning to the courts at the end of May, virtual appearances are still the favored means of conducting conferences and arguing motions.  As vaccination numbers have reached the 70% threshold and mask requirements are being lifted, in-person appearances may return soon.  That said, it remains likely that the routine matters will still be handled virtually.
In Lyall v. Justin Boot Company, the plaintiff asserted manufacturing and design defect claims, arguing that an issue of fact existed as to whether the logger boots at issue were reasonably fit for their intended purpose.  The Third Department, relying on the testimony of the boots’ designer, affirmed the dismissal of the plaintiff’s complaint, finding that the boots were reasonably safe for their intended use.
5/13/21           Lyall v. Justin Boot Company
Appellate Division, Third Department
Product defect claims get the boot: court affirms dismissal of plaintiff’s complaint as subject boots were reasonably safe for their intended use.
The plaintiff, a commercial logger, was injured when the chainsaw he was operating kicked back and cut through his logger boot, which had been manufactured by the defendant.  As a result of the accident, the plaintiff asserted manufacturing and design defect claims.
The plaintiff, although acknowledging that no specific defect existed, claimed that an issue of fact existed as to whether the boots were reasonably fit for their intended purpose.  The Court disagreed, finding the opinion of plaintiff's expert and plaintiff's subjective expectations about the logger boots were insufficient to raise a material issue of fact.
In so ruling, the Court relied on the testimony of the designer of the subject logger boots that the defining factor of a logger boot is its height and the shape of its heel, which was intended to help the wearer walk in the woods, step on underbrush, and avoid tripping. The designer stated that the logger boots were not designed to have chainsaw cut resistance and conformed to the applicable industry standard, which did not require that the boots be cut resistant or contain Kevlar. The Court held that such testimony established that the logger boots, as designed, were reasonably safe for their intended use.
Accordingly, the Court affirmed the trial court’s dismissal of the plaintiff’s manufacturing and design defect claims.


Failure to Warn
By: Kara M. Eyre
[email protected]
What a whirlwind this month has been!  The birds are chirping, the flowers are blooming, and this week Gov. Cuomo lifted most Covid-19 restrictions as New York hits a 70% vaccination rate among adults.  I have been grinning ear to ear since joining the Products Pointers team here at Hurwitz & Fine last month, and now with eased masking requirements my new colleagues can finally see it!  I am beyond grateful for the warm welcome and excited to add some girl power to the group.  
While I was excited to dig into the most recent developments on failure to warn jurisprudence, sadly there were no decisions of interest last month.  Instead, I bring you the continuing saga of a serial pro se litigant determined to make Amazon pay for injuries she claims from defective toilet paper.
5/12/21  Gray v., Inc.
U.S. District Court, Northern District of New York
Court dismisses pro se Complaint against Amazon for allegedly defective toilet paper.
Plaintiff alleged a manufacturing defect in toilet paper she purchased from Amazon after a run on her local supermarket due to the Covid-19 pandemic left her without.  The Complaint alleged that the package was “dirty” and after using the toilet paper, she suffered an infection and discomfort.
The Court granted Amazon’s motion to dismiss pursuant to FRCP 12(b)(6), finding that even when viewing Plaintiff’s Complaint according to the lenient pleading standards afforded to pro se litigations, dismissal without leave to amend was warranted.  The Court determined that the Complaint failed to allege enough facts to support liability and proximate cause.
The Court reiterated that to plead and prove a manufacturing flaw, whether in negligence or strict liability, a plaintiff must allege “enough facts to establish that the product did not perform as intended and the possibility of other causes has been excluded.”  Plaintiff’s Complaint failed to allege that the toilet paper left the control of the manufacturer or seller in a defective condition.  The Complaint was also fatally deficient on proximate cause, with the Court finding that the Complaint fails to establish any link between the toilet paper and her alleged injuries and did not exclude other possible explanations. 
Also noteworthy, the Court did not grant this pro se litigant leave to amend her Complaint, based upon evidence that she was a “serial litigator” and that she had been granted leave to amend a Complaint in a previous lawsuit based upon the same set of facts but failed to do so.  The Court found that this justified their finding that granting Plaintiff leave to amend would be “futile.”


Toxic Torts, Asbestos, and Lead Paint
By: Nicholas J. Heintzman
[email protected]

Hope all is well, everyone! The NBA Playoffs are fully into the second round now, and, given that basketball is my favorite sport, I am having a blast watching each series. However, I am very detail-oriented, and I insist on watching each game in every series from start to finish, so that I can fully appreciate and evaluate the strategic adjustments made throughout each series. This is time consuming, and I am always at least a few games behind on every series. No spoilers please…
Here is my fun Canadian fact for the month: Nunavut, a sparsely populated territory of northern Canada makes up 20% of Canada’s landmass, but, as, of 2019, its population was only 38,780, compromising just 0.0001% of Canada’s total population. You probably should not move to Nunavut if you enjoy socializing.
In asbestos and toxic tort news, there was an important trial court decision upstate concerning plaintiff’s counsel’s attempts to redact information contained in Bankruptcy Trust Proof of Claim submissions (“POCs”), such as identifying information of the witness or affiant.  The trial court, Justice Gall, only partially granted plaintiffs’ motion for a protective order permitting redactions of just settlement amounts, social security numbers, and “highly sensitive medical information.”
I also have an update on Castro v. Colgate-Palmolive Co, which I discussed in April’s newsletter. Briefly, the Magistrate Judge applied choice-of-law analysis to hold that plaintiffs’ asbestos claim was time barred by Virginia statute of limitations. On May 28, 2021, John Sinatra, United States District Court Judge, upheld the Magistrate’s decision.
We have one interesting reported asbestos decision this month in which the defendant sought dismissal based on its expert’s opinion that chrysotile asbestos cannot cause peritoneal mesothelioma. 
5/26/21           Pistone v. Am. Biltrite
Appellate Division, Second Department
Defendants’ summary judgment motion denied as plaintiff’s expert creates a question of fact regarding chrysotile asbestos causation of peritoneal mesothelioma.
Plaintiff commenced this action against two defendant floor manufacturers alleging that exposure to asbestos in the defendants’ flooring products caused her peritoneal mesothelioma. Plaintiff was exposed as a child when she helped her father, a carpenter, at his job sites by sweeping up dust which allegedly contained asbestos. Defendants moved for summary judgment on lack of causation grounds, arguing that the chrysotile asbestos that is found in their flooring products is not capable of causing peritoneal mesothelioma.
The Second Department reversed the lower court’s decision and denied defendants’ motion.   The Court articulated the standard for proving causation in toxic tort cases, namely that an expert must establish: 1) the plaintiff’s exposure to a toxin; 2) that said toxin can cause the particular injuries the plaintiff suffered; and 3) that the plaintiff was exposed to sufficient levels of the toxin to cause the injuries she alleges. The Court also noted that an expert may use any method “generally accepted in the scientific community” to establish causation. The Court found, without explaining its finding in detail, that the conclusions of the plaintiff’s experts were sufficiently supported by valid scientific studies and medical literature and demonstrated causation through a scientific method. Their opinion conflicted with the defendants’ experts’ opinion which said that the chrysotile asbestos plaintiff was exposed to could not cause peritoneal mesothelioma. Thus, there was a credibility question amongst the experts which is a question of fact for the jury.


V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Kara M. Eyre
[email protected]

Nicholas J. Heintzman
[email protected]


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