Products Liability Pointers - Volume II, No. 7

Volume II, No. 7
Thursday, July 22, 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

It’s been quite a busy summer, with an ease in Covid restrictions and re-openings of the courts, all those tasks that were delayed the past year are being scheduled, and trial dates are real (until they are not…).  Our office in fact has a trial underway right now in Poughkeepsie, NY. 

The Canadian border is re-opening to vaccinated travelers on August 9th.  This also means that Buffalo’s foray into major league baseball is coming to an end as the “Buffalo Blue Jays” will be returning home to Toronto.  As luck would have it, I am taking my kids to what will be probably the last major league game in Buffalo in my lifetime.

In firm news, we continue to grow and expand and are very pleased to welcome litigation attorney Cara M. Pascarella to our Melville, New York office, where she will be working in the areas of premises liability, products, construction accidents, and transportation negligence.

Kudos as well to our President and Managing Partner, Jody E. Briandi, who was recently featured in a Buffalo Business First Diversity & Inclusion panel discussion.

While the trial courts are in full swing and keeping us very busy, the decisions are rather slow, as is typical in the summer months.  It is clear however that plaintiffs are doing everything in their power to stay out of federal court, as we have two decisions this month concerning claims of “fraudulent joinder” designed to destroy diversity jurisdiction and remand to state court.  Most concerning is a decision out of the Southern District of New York in which plaintiff was able to defeat diversity jurisdiction by tenuously alleging failure to warn against an individual employee of a manufacturer defendant.

And now for this month’s dad joke:
What did the beach say to the tide?
Long time, no sea.

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]

7/14/21           Rampersaud v. Hsieh Hsu Machinery Co., Ltd, et. al.
Appellate Division, Second Department
Defense does not stick: Classic battle of the experts dooms summary judgment on design defect claim involving glue roll on corrugator machine.

Plaintiff was injured during the course of his employment when he attempted to clean the glue roll of a corrugator machine with a cloth by placing his left hand between the glue roll and a rotating cylinder while the machine was operating. The manufacturer of the machine, Hsieh, moved for summary judgment dismissing the complaint.  The Second Department affirmed the denial of Hsieh’s motion as it failed to eliminate triable issues of fact as to whether the corrugator machine was defectively designed and, if so, whether such defect was a substantial factor in causing the accident.
The plaintiffs' expert opined that the machine was defectively designed due to, among other things, “unguarded point of operation hazards,” “unguarded in-running nip points,” and the absence of an emergency stop device in the vicinity of the machine, and that the accident would have been prevented if the machine had been properly designed. On the other hand, Hsieh's expert averred that the machine was designed to ensure that the rolls would not come together on their own, that controls for the machine could not be in two separate locations, and that there was no indication a guarding system for the machine was available at the time the machine was designed. In light of these conflicting expert opinions, Hsieh failed to eliminate triable issues of fact as to whether the machine was defectively designed.
Hsieh also failed to establish, prima facie, that its alleged failure to provide an adequate warning was not a substantial cause of the accident. Hsieh's expert opined that the “normal separation” between the parts of the machine which the injured plaintiff reached his hand between was less than an inch, and thus, it would have been obvious to any experienced person, let alone a trained operator, that such a limited tolerance would by itself pose as a pinch hazard especially when the rolls are turning inward. Plaintiffs' expert however opined that since there were no warnings on the machine, there was no means for an improperly trained employee to learn of the hazards associated with the machine including the subject in-running nip points.


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

The Appellate Division, Second Department, recently announced that in-person oral arguments will now resume.  Other than the update from the Appellate Division, not much has changed as far as Court appearances in the NYC Metro area since our last edition.  With limited exceptions, most appearances remain virtual at this time. 
Our manufacturing defect case this month involves an accessory that would allow a hearing aid (which contained magnets) to be worn during an MRI.  The product was used by the plaintiff and failed to prevent injury.  The District Court assesses whether the plaintiff’s recitation of the required elements of a manufacturing defect claim is sufficient to plead the claim or is more required than the allegation that “the device is defective because it did not perform properly.”

6/23/21           Koublani v. Cochlear Limited
U. S. District Court, Eastern District of New York
Loud and clear: District Court dismisses manufacturing defect claim related to a hearing aid accessory, holding plaintiff failed to sufficiently plead the claim.
The plaintiff, a user of a cochlear implant hearing aid manufactured by the defendant, was injured when the hearing aid magnet, which was located under her skin, was dislodged during an MRI. 
The hearing aid at issue consists of internal and external parts held together by a magnet.  As magnets (any metals, generally) should not be brought into MRI machines, the defendant designed the hearing aid so that the magnet could be surgically removed prior to an MRI procedure.  An accessory to the hearing aid, the MRI Kit, provided a less invasive option, allowing a piece of plastic to be placed against the skin over the magnet.
As a result of the accident, the plaintiff asserted strict products liability, negligence, breach of warranty, and failure to warn claims.  In support of her manufacturing defect claim, the plaintiff asserted that at the time the defendants manufactured the MRI Kit, it was not reasonably safe and fit for the purposes intended and failed to meet the manufacturing requirements to ensure that it conformed to defined use, needs, and intended purpose.
The Court found such allegations amount to a threadbare recital of the elements of a manufacturing defect cause of action that failed to meet the plausibility standard.  The Court further held that there was no factual basis to infer that plaintiff's MRI Kit differs from a properly manufactured MRI Kit.
The plaintiff attempted to avoid pleading a “specific error in the manufacturing process” and “a defect compared to other samples of that device” by claiming that it is “unduly burdensome to expect plaintiff to have specific knowledge about Defendants’ manufacturing process at this early stage of the case.”  However, the Court rejected such an argument, finding that the plaintiff simply needed to allege more than “the device is defective because it did not perform properly.”  The Court held that there must be enough facts to raise a reasonable expectation that discovery will reveal evidence of a manufacturing defect.
Lastly, although district courts within the Second Circuit have absolved certain plaintiffs of their need to plead a specific defect by applying one of two limited exceptions, 1) where pleading a specific defect would require technical or scientific knowledge or 2) circumstantial evidence and the absence of all other causes, the Court held that neither exception applied in this matter.  Accordingly, the plaintiff’s strict products liability manufacturing defect claim was dismissed.


Failure to Warn
By: Kara M. Eyre

[email protected]

Summer is in full swing, and I have been embracing every opportunity to get outside and take advantage of the easing Covid-19 restrictions.  I am really enjoying seeing friends and family more regularly, and even carting my children off to summer camp and baseball practice is somehow more exciting this summer.  My family has also been closely following the (rescheduled) Summer Olympics!  On that note, I would like to offer my inaugural monthly Lady Fact - a lesser known but nonetheless inspiring fact about women in history.  Did you know that no women or girls were allowed at the ancient Olympics, but the Games of Hera, featuring footraces for women, were held every four years? 
On the new decisions front, the Southern District of New York granted a plaintiff’s motion to remand her state law products liability and negligence claims, rejecting defendants’ fraudulent joinder argument, based on plaintiff’s rather novel theory of liability of failure to warn asserted against a corporate employee individually to negate diversity jurisdiction. 

6/23/2021        Farnum v. Crown Equipment, et al.
United States District Court, Southern District of New York
SDNY rejects defendants’ “fraudulent joinder” argument and remands products liability and negligence action to state court based on “some possibility” of recovery on failure to warn against individual corporate employee.
The claim of the decedent plaintiff, a warehouse worker who was asphyxiated operating a forklift, was commenced in New York State Supreme Court, Bronx County, alleging products liability, negligence, and wrongful death against Crown Equipment, who designed and manufactured the forklift, and negligence and wrongful death against James Maglaras, a Crown employee whom plaintiff alleged was responsible for the ongoing lease, repair, and maintenance of the forklift.  The decedent plaintiff was a resident of New York, as was defendant Maglaras.  Crown Equipment is an Ohio corporation with a principal place of business in Ohio. 
Defendants removed this action to federal court based on diversity jurisdiction, asserting that the non-diverse defendant, Maglaras, had been fraudulently joined as he, individually, has no duty to the plaintiff.  Plaintiff then moved to remand the action to state court, and the Southern District granted the motion.  Citing the “heavy burden” on a defendant to demonstrate, by clear and convincing evidence, that the non-diverse defendant has “no real connection with the dispute,” “outright fraud,” or that a plaintiff “has no possibility of recovery against them,” the Southern District found that although plaintiff’s failure to warn claim against Maglaras may not ultimately prevail, all uncertainties in applicable state law are resolved in favor of the plaintiff.
The District Court relied on pled allegations that Maglaras was a manager for Crown responsible for the sale and service of the forklift to plaintiff’ employer, that he was aware of the risk of shelf intrusion that existed at the warehouse, but did not warn to eliminate the risk or suggest that a second rear guard post on the forklift was needed for it to be reasonably safe.   These pleadings were sufficiently particularized to survive New York's liberal pleading standards, and recovery by plaintiff against the employee was not impossible because under New York law, the duty to warn applies to technicians as well as manufacturers and distributors, and the duty is continuing and does not cease upon the sale of a product.

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

[email protected]

This month’s fun Canada fact: Manitoba, an otherwise non-descript province in Canada’s prairies, has the world’s largest concentration of snakes, and its most distinctive snake species is the red-sided garter snake.
For this month’s toxic tort cases, we have a Fourth Department decision in which the Court applies an accrual analysis to deny plaintiff’s toxic fumes and hazardous materials claim on statute of limitations grounds.  In our second case, the Southern District of New York remanded plaintiff’s asbestos case back to state court after defendants attempted to use the “fraudulent joinder” doctrine to establish diversity jurisdiction.

7/9/21             Cotter v. Lasco, Inc.
Appellate Division, Fourth Department
Fourth Department applies accrual analysis to dismiss plaintiff’s claims of injury from decade-old toxic substance exposure on statute of limitations grounds.
Plaintiff commenced this toxic fumes and hazardous materials action against defendant Lasco Inc., the corporation which owned the factory building in which plaintiff was employed and allegedly suffered said exposure. On an appeal of defendant’s summary judgment motion, which the lower court denied, the Fourth Department found that plaintiff’s exposure claims were untimely under the applicable three-year statute of limitations. The Court held that the statute of limitations began to run from the date of discovery of plaintiff’s injury.
The Court explained that discovery of injury occurs “when the injured party discovers the primary condition on which the claim is based,” as opposed to “the connection between symptoms and the plaintiff’s exposure to a toxic substance.” Defendant used plaintiff’s deposition testimony and workers’ compensation claim to establish that plaintiff’s exposure claims accrued in 2003 when he made multiple visits to his providers for symptoms caused by chemical exposure. This was well over three years prior to the commencement of this action in 2014.

7/12/21           Resnik v. Rite Aid of New York, Inc., et al.
United States District Court, Southern District of New York
United States District Court Southern District of New York remanded plaintiff’s case back to state court after defendants attempted to use the “fraudulent joinder” doctrine to establish diversity jurisdiction.
Plaintiff alleged that she purchased Johnson & Johnson’s baby powder and SHOWER TO SHOWER products, which contained asbestos-contaminated talcum powder, from CVS, DRI I, Rite Aid, Walgreens, CVS, and Duane Reade stores in Queens, New York. She alleged that her use of these products between 1960-2016 caused her ovarian cancer. She also made a claim against Kolmar Labs for manufacturing the talcum powder contained in the J&J products.
Despite plaintiff being a New York citizen, and Rite Aid, Walgreens, and Kolmar being New York corporate citizens, thus destroying diversity jurisdiction, defendants nevertheless moved the case to federal court under the “fraudulent joinder” doctrine. This doctrine disregards the citizenship of any defendants who have “no real connection to the controversy.” To establish fraudulent joinder, defendants must demonstrate by clear and convincing evidence that 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. In conducting this inquiry, factual and legal issues must be resolved in favor of the plaintiff.
Stating a cause of action under New York law requires that a complaint include enough detail to give notice of the transactions and occurrences intended to be proved and the material elements of each cause of action. With respect to Rite Aid and Walgreens, defendants alleged that plaintiff’s complaint lacked facts about what products plaintiff purchased from which stores, when she did so, what specific statements by defendants “advertised and marketed talc as safe for human use,” and whether plaintiff relied on those statements. The Court found that since Resnik's complaint alleged that each of the retailer defendants “engaged in the manufacture, sale and distribution of materials and/or products containing asbestos, including products to which [plaintiff] was exposed,” that they “continually advertised and marketed talc as safe for human use,” and that plaintiff “purchased asbestos-containing talcum products, to which she was exposed from stores owned and operated by” each retailer, plaintiff met New York’s “relatively lax pleading standards.”

V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]

Kara M. Eyre
[email protected]

Nicholas J. Heintzman
[email protected]
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