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Products Liability Pointers - Volume III, No. 1

Volume III, No. 1
Friday, January 14, 2022
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.
 
WHAT PRODUCTS LIABILITY POINTERS COVERS
Negligence
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

NOTE FROM THE EDITOR: 

Happy New Year!  Pandemic life trudges on as we navigate our way through the Omicron variant, which disrupted many holiday plans and travel.  It did not stop, however, the passage of significant legislation directly impacting New York litigation.

The most significant, and troubling, piece of new legislation is the “Comprehensive Insurance Disclosure Act” (“CIDA”), signed into law by Governor Kathy Hochul on December 31, 2021.  Dan Kohane and Ryan Maxwell from our coverage department have put together a concise summary of the requirements for carriers and attorneys.  The requirements, in brief, require disclosure of:

 

  • All primary, excess and umbrella policies, contracts or agreements including, but not limited to, declarations, insuring agreements, conditions, exclusions, endorsements, and similar provisions—including the insurance application;
  • The amounts available under any policy, contract or agreement to satisfy a judgment;
  • The caption and date of any lawsuits that have or may reduce or erode these amounts and contact information for the attorney of any represented party therein;
  • The amount, if any, of attorney’s fees that have eroded or reduced the face value of the policy, along with the name and address of any attorney who received such payments;
  • The contact information, including telephone number and e-mail address, of any person or persons responsible for adjusting the claim; and
  • Sworn certifications from both the insured and the insured’s counsel indicating that the above disclosures are accurate and complete, and that reasonable efforts have and will be undertaken to ensure that this information remains accurate and complete pursuant to CPLR 3101(f)(2).
The necessity for these obligations is certainly questionable as they extend far beyond the prior insurance disclosure requirements and are particularly onerous and burdensome to carriers and counsel.  While there are a lot of rumors and speculation concerning proposed and/or drafted changes, any chapter amendments will still need to pass the New York Assembly and Senate before being sent to the Governor for signature.  We are monitoring this very closely and please stay tuned for further updates.

Seemingly overshadowed by CIDA, S7093 amends the rules of evidence with the addition of a new CPLR 4549 which will permit the admission of an opposing party's statement if made by an agent or employee within the scope of and during the existence of that relationship. This is a significant amendment to New York's hearsay exception which will now more closely follow the approach of Federal Rule of Evidence 801(d)(2)(D).  Under the prior common law, such a hearsay statement was admissible only upon a showing that the declarant had express authority to speak on behalf of the company (typically management level).   Now, apparently the statement any employee (check-out clerk, janitor, nurse’s aide, etc.) can be admissible as a party admission without being subject to cross-examination.

On the positive side, while paling in comparison to CIDA and CPLR 4549, remote notarization, which was temporarily adopted during the pandemic, is now a permanent option in New York, with a few new twists as addressed by our corporate real estate attorney Joseph Reynolds.  The new law now provides for a fully electronic option, with electronic notarization by the notary to coincide with electronic execution by the signatories to the document.  Also, now only the electronic notary public must be physically located within the State of New York at the time of the execution regardless of the location of the document signer. Under the prior Order, the signatory was required to affirmatively represent to the notary that he/she was physically located in New York State.  There are still kinks to be worked out, including the registration process for electronic notarization with the New York State Secretary of State, so again stay tuned for further updates and developments.

Another problematic and unnecessary piece of proposed legislation, S473, which would have provided for retroactive interest to accrue from the date when summary judgment was initially denied to a plaintiff if that denial was thereafter reversed on appeal and granted in favor of the plaintiff, was rightly vetoed by the Governor.

Cara Pascarella previously reported on a significant decision from the Court of Appeals that debunked a hundred-year-old myth that foreign corporations, by registering to do business in New York, consent to general jurisdiction in New York for adjudication of lawsuits.  While the Aybar case was making its way to the Court of Appeals, the state legislature introduced S7253, which sought to codify that a foreign corporation’s application for authority to do business in the state would constitute consent to jurisdiction, while surrendering of an application would constitute withdrawal of such consent. However, following the Court of Appeals decision in October 2021, holding that a foreign corporation’s registration to do business in the state does not constitute consent to general jurisdiction, the proposed legislation and statutory amendments was vetoed by New York Governor Kathy Hochul on December 31, 2021 and has been tabled.

Our resident CVA expert Anastasia McCarthy advises that the Adult Survivors Act, S66, which would implement a one-year lookback window for individuals who were sexually assaulted as adults to file claims against their abusers even if the statute of limitation has already expired, has passed the NYS Senate Judiciary Committee.  The bill must still be approved by both the Senate and Assembly, but we are hearing that the new governor may have more of an appetite to see this implemented than the prior administration.

Lastly, gaining traction again this year is the “Grieving Families Act” (S.74-A/A.6770),  which would amend the Wrongful Death Statue codified in the Estates, Powers, and Trust Law, to permit the families of wrongful death victims to recover compensation for their emotional anguish, not just pecuniary loss.  The bill has been sent to Judiciary Committee with an important new amendment to extend the statute of limitation for wrongful death from two years to three and a half years from the date of fatality.

I think that’s enough for now on legislative updates, it's time for product liability news.  Our cases this month address a wide range of substantive issues.  The Second Department holds that the alleged negligent acts or omissions of engineers in repairing an implanted medical device fall outside the scope of product liability claims that are subject to federal preemption. The Southern District, after already dismissing a claim for an alleged defective hip implant, rejects plaintiffs’ attempt raise new theories of liability on motion for reconsideration.  A Kings County trial court revisits the statute of limitations in an adult’s lead poisoning claim.  In a warning that all practitioners should heed, an MDL court advises the litigants to reduce agreements, even if based on years of custom and practice, to written orders.

And now for this month’s dad joke:

What falls in the winter but never gets hurt?

Snow.
- VCP
V. Christopher Potenza  ■  Member
Hurwitz & Fine, P.C.
1300 Liberty Building  ■  Buffalo, NY 14202
tel (716) 849-8900  ■ cell (716) 523-8941 ■ fax (716) 855-0874
Email:  [email protected]
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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.
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Manufacturing Defects
By: Cara M. Pascarella
[email protected]

While I am sure most of us are suffering from COVID fatigue (literally and figuratively), I wanted to provide a brief update on downstate guidelines. Unfortunately, with the winter in full swing, downstate COVID cases have been significantly on the rise.  The increase in positive cases has caused almost all depositions and court conferences to be conducted virtually with very few exceptions.  Mask mandates have also been reinstated in most indoor facilities, requiring a mask be worn at all times regardless of vaccination status.

On a more positive note, New York City is implementing new ways to help small businesses. Given that people may be hesitant to partake in indoor dining, New York City will allow the sale of to-go drinks for off-premises consumption to help bars and restaurants increase their revenue. So, if you are looking for an adventure in New York City you can now take your favorite drink along with you! 

12/01/2021         Arnold v. Abbott Laboratories
Appellate Division, Second Department
Alleged negligent acts or omissions of engineers in repairing implanted medical device not subject to federal preemption.

 
The plaintiff's decedent was implanted with a HeartMate II Left Ventricular Assist System (LVAD), which allegedly was designed and manufactured by the defendants. The decedent was admitted to the hospital for care concerning the functioning of the LVAD, and while he was in the hospital, two engineers from Abbott performed a replacement of the LVAD percutaneous lead. Within days, the decedent died. The primary cause of death listed on the autopsy report was cardiac arrest.

The Supreme Court granted the defendants’ motion on the basis that all of the causes of action asserted against the defendants were preempted by the Federal Food, Drug, and Cosmetic Act, as amended by the Medical Device Amendments of 1976, 21 USC § 360c et seq (MDA).

The MDA was enacted to provide for the safety and effectiveness of medical devices intended for human use.  For Class III devices such as the LVAD, the MDA established a rigorous regime of premarket approval which essentially imposes requirements under the MDA specific to the particular device being reviewed.  The MDA also includes an express preemption provision, prohibiting state requirements with respect to a device intended for human use which are different from, or in addition to, any requirement applicable under federal law and which relate to the safety or effectiveness of the device.  Pursuant to this provision, it has been held that common-law causes of action which challenge the safety and effectiveness of a medical device and seek to impose requirements that are different from, or in addition to federal requirements, such as those sounding in products liability and breach of warranty, are preempted

Here, the plaintiff effectively concedes that dismissal of the products liability and breach of warranty causes of action was properly directed on the basis that they were preempted. However, plaintiff argues that the first and fifth causes of action that negligent acts or omissions of the engineers employed by Abbott, allegedly committed during the course of their replacement of the lead in the decedent's LVAD, were a proximate cause of his death. Those claims in those causes of action do not “challenge the safety and effectiveness of a medical device and seek to impose requirements” different or additional to federal law.  Accordingly, those claims are not preempted.

Failure to Warn
By: Kara M. Eyre

[email protected]


The New Year and cold weather are finally here!  I have been taking advantage and trying to teach my children to ski here in Western New York.  And while I am far from a champion skier, I do know that it’s that time of the month again for . . . Lady Facts, a lesser known but nonetheless inspiring fact about women in history.  Fellow skier, American Lindsey Vonn, was taught to ski by her parents, just like my children!  Vonn is one of six women to have won World Cup races in all five disciplines of alpine skiing and has the all-time record of the most World Cup race wins, with 82.   
 
In products news this month, the Southern District of New York, in Rouviere v. DePuy Orthopaedics, Inc., denied plaintiffs’ Motion for Reconsideration of a prior Order granting defendants summary judgment in a case involving an alleged breach of express and implied warranties. 
 
12/08/2021      Rouviere v. DePuy Orthopaedics, Inc.
U.S. District Court, Southern District of New York

District Court rejects plaintiffs’ attempt to raise new failure-to-warn theories of liability not based on new evidence on motion for reconsideration.

Plaintiff asserted product liability claims under theories of negligence, strict liability, and breach of express and implied warranties against defendant manufacturers of components utilized in an orthopedic surgery alleging that the components released toxic medal debris into her body.  Her husband also asserted a claim for loss of consortium.  Defendant DePuy Orthopedics previously moved for summary judgment, which was granted, and plaintiffs moved for reconsideration.  Specifically, plaintiffs took issue with the Court’s holding that the evidence did not support plaintiffs’ claim that DePuy’s failure to warn proximately caused her injuries.
 
The Southern District of New York first noted that a motion for reconsideration is not a vehicle for  relitigating old issues or positing new theories of liability not based upon new evidence.  As such, the Court rejected plaintiffs’ three main arguments raised in support of their motion: (1) that plaintiff’s doctor would have heeded warnings of metal-on-metal impingement and that the components were not approved by the FDA; (2) that Ms. Rouviere would not have consented to the surgery if she had been adequately warned; and (3) the failure to warn caused Ms. Rouviere’s injuries because her physicians did not know how to test for the complications she suffered.  In all three instances, the Southern District found that plaintiffs were pursuing new theories of liability that were not based upon new evidence on issues that had already been addressed by the Court on the prior motion for summary judgment.  As such, the Court denied plaintiffs’ motion.

Multidistrict Litigation
By: Michael J. Williams
[email protected]
 
Last month, as a firefighter and not a lawyer, I wrote a piece regarding the preventable deaths and property loss caused by holiday season fires.  I wrote about keeping lighters away from children, how fast and hot a dry Christmas tree will burn, the importance of smoke detectors, that FEMA suggests December 30th as the date to dispose of trees and how firefighters will respond in minutes when you call.  I unfortunately follow up today with a tragic reminder. 

On January 5, 2022, a five-year-old boy played with a lighter next to a Christmas tree on the upper level of the duplex home that he shared with his extended family.  Four adults and eight children, ages two to 33, died.  Surviving family members were woken by the victims screaming.  There were no working smoke detectors at the time of the fire. 

Philadelphia’s 911 center received the first call at 6:36:28 a.m.  Dispatched firefighters were responding at 6:38:27 a.m. and arrived by 6:40 a.m.  They contained and extinguished the fire in approximately 50 minutes, saving the attached row houses and their residents on both sides.  But 12 people still died because a child played with a lighter by a dry Christmas tree, smoke detectors were disabled, and a firefighter response time of less than four minutes couldn’t prevent tragedy.  Our volunteer fire departments take even longer to respond.  It takes me four minutes to drive to our fire hall, 45 seconds to don my gear, and then our engine’s drive time to your home.  Our “rule of thumb” is that a house fire can double in size every 30 to 60 seconds. 

Four days after the Christmas tree fire, 17 people died and at least 63 were injured in a Bronx apartment fire that started with a defective space heater.  Tenants in the unit where the fire began ran, leaving their door open, permitting fire and smoke to spread.  Neighboring tenants initially ignored smoke alarms.  Fire-safe practices – maintaining smoke detectors, acting when they sound off, making fire sources child-safe, having an escape plan – can make the difference between life and death for our families. 

As a lawyer, I also write on another tale of caution in not memorializing important agreements in written and court orders.  In an MDL claim sitting in the 7th Circuit, the plaintiff commenced his action timely within the 3-year statute of limitations of his home state.   The Southern District of Indiana was hosting the MDL for this product and, as is the custom and practice in MDL litigation, for the convenience of the court and all parties, requested that claims be filed directly into the MDL.   After years of litigation, the MDL court dismissed the case for being filed after Indiana’s two-year statute of limitations expired.  The 7th Circuit re-instated the plaintiff’s claim, finding that the defendant had implicitly consented to the process by, among other actions, originally arguing that direct-filed cases should be treated as if transferred from the state where the case originated, and cautioned litigants to use written orders to ensure clear consent from parties about how they will manage choice-of-law, personal jurisdiction, and venue issues in directly filed cases.

Please have a happy and safe 2022.

12/16/2021      MDL 2570 In re: Cook Medical, Inc., IVC Filters Marketing, Sales Practices and Products Liability Litigation
Judicial Panel on Multidistrict Litigation
When an order in practice is never “so ordered,” substantive rights are retroactively protected based on the parties’ conduct.

 
Imagine a New York resident plaintiff has an IVC filter implanted in New York, is injured in New York, treats in New York, and the product in question is the subject of a federal MDL.  The Southern District of Indiana is hosting the MDL and, at its invitation and for the convenience of the court and all parties, plaintiff files directly into the MDL months before New York’s three-year statute of limitations expires, thus avoiding the delays an inconvenience to all parties of filing in the home district and then transferring to the Indiana MDL.  After years of litigation, the MDL court dismisses the case for being filed after Indiana’s two-year statute of limitations expired.  If this sounds wrong to you, the Seventh Circuit agrees. 
 
In Looper v. Cook Incorporated, at al., 20 F.4th 387 (7th Cir. 2021), plaintiffs from South Carolina and Mississippi – three-year statute states – did exactly this, direct-filing as the “court and the parties agreed in practice” could occur.  Unfortunately, the “agreed in practice” had never been explicitly reduced to an order and defendant Cook “changed course 180 degrees in the midst of the MDL” by moving to dismiss.  The MDL court joined Cook’s about-face by granting the motions.  Plaintiffs, understandably under the circumstances, appealed. 
 
The Seventh Circuit considered that a federal court exercising diversity jurisdiction normally applies the law of the state where it sits.  However, when a district court of proper venue transfers a case, the choice of law remains unchanged.  MDLs over the last 50 years have nonetheless developed “specialized procedures” to avoid the delays of transferred tag-along cases to the coordinated proceedings.  These direct-filing procedures implicate waivable issues of personal jurisdiction, venue and choice of law.  Here, they resulted in dismissing cases that the court and all parties recognized as timely when filed. 
 
Acting as self-proclaimed “Monday-morning quarterbacks,” the Seventh Circuit placed substantive law over the “accident of bureaucratic convenience” that was the direct-filing procedure.  It held that Cook had implicitly consented to the process by, among other actions, originally arguing that direct-filed cases should be treated as if transferred from the state where the case originated.  As the court held, “[d]espite the absence of a formal direct-filing order in this MDL, everyone acted for years as if one were in place.”  While stopping short of judicially estopping Cook’s changed position, the Seventh Circuit nonetheless reversed and offered sage advice for the future: “use written orders to ensure clear consent from parties about how they will manage choice-of-law, personal jurisdiction, and venue issues in directly filed cases”.

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

[email protected]


I am pleased to report that I successfully made it home to Canada for the Holidays for the first time in two years. I spent 12 days with my Dad and Sister, and I could not have asked for a better time. Hopefully I’ll get home more frequently in 2022.

This month’s fun Canada fact is more of a personal anecdote than a fact. Keanu Reeves is a Canadian movie star that’s starred in the Matrix franchise. The most recent Matrix film, The Matrix Resurrections, released this past December. The mother of one my high school friends dated Keanu while he was in high school.  She describes him as an “awkward, reclusive loner” and reports there was little indication he would become a mega star. Life is unpredictable. 
 
Just one case this month from a Kings County trial court in which the defendant wins on its statute of limitations summary judgment motion in a lead paint case involving an adult plaintiff.
 
 
12/10/21         Urman v. Lustar Realty Corp.
Supreme Court of New York, Kings County  
Lead poisoning claim of adult plaintiff dismissed on statute of limitations grounds as plaintiff complained of symptoms to doctor five years prior to commencement of action.
 

In this lead paint poisoning case, defendant moved for summary judgment on the grounds that the adult plaintiff’s claim was time barred by the three-year statute of limitations. Defendant argued that plaintiff discovered that her illness was caused by lead paint poisoning on July 11, 2013, and that plaintiff missed the statute of limitations by not bringing her claim until May 2018.

The Court first noted that a plaintiff’s claim for damages resulting from exposure to toxic substances accrues when a plaintiff starts “to suffer the manifestations and symptoms” of her physical condition. The question is when her injury became apparent—not when the specific cause of her injury is identified. In this context, injury is defined as “an actual illness, physical condition or other similarly discoverable objective manifestation of the damage or symptoms caused by previous exposure to an injurious substance.” The Court found that defendant demonstrated that plaintiff manifested the symptoms of her condition in 2013, five years before the commencement of her action. The Court specifically noted that: 1) plaintiff testified that she experienced symptoms in 2013; 2) plaintiff was diagnosed with lead poisoning in 2013; and 3) plaintiff’s medical records show that plaintiff had high levels of lead in her urine in 2013.

Thus, the Court held that plaintiff’s claim was barred by the Statute of Limitations.
NEWSLETTER EDITORS

V. Christopher Potenza
[email protected]
Brian F. Mark
[email protected]


ASSISTANT EDITORS

Michael J. Williams
[email protected]
Kara M. Eyre
[email protected]
Nicholas J. Heintzman
[email protected]
Cara M. Pascarella
[email protected]

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