Products Liability Pointers - Volume III, No. 4

Volume III, No. 4
Tuesday, April 26, 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.

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

We start this issue with a bang as the New York Court of Appeals has just released a watershed asbestos causation decision. In Nemeth v. Whittaker, Clark, & Daniels, Inc., 2022 NY Slip Op 02769 (April 26, 2022), New York’s highest court overturned a $15 million asbestos verdict, finding plaintiff’s trial proof on causation was insufficient as a matter of law. This decision is rather remarkable in that the Court of Appeals expressly states that it is simply re-affirming the test for proving causation in a toxic tort case, and in dissecting plaintiff’s trial proof determines that plaintiff's failed as a matter of law. Well-utilized plaintiff’s expert Dr. Moline provided the expert opinion that decedent's exposure to contaminated talcum powder was a substantial contributing factor in causing decedent's peritoneal mesothelioma. The Court however found that the basis for that opinion insufficient for establishing exposure to a toxin in an amount sufficient to cause decedent's peritoneal mesothelioma.  With respect to the level of exposure that could serve as a proximate cause of decedent's peritoneal mesothelioma, Dr. Moline asserted that “brief or low level exposures of asbestos” could cause the disease, but that “there are some exposures to asbestos that are trivial and don't increase a person's risk of developing mesothelioma” and that exposure to twice the amount of asbestos in ambient air would not cause mesothelioma. She also testified that mesothelioma may develop idiopathically—that is, without a known cause. The Court of Appeals found this testimony was plainly insufficient, not a scientific expression of exposure level, and nothing more than conclusory assertions. In firm news, we are extremely excited to announce the return of attorney Stephen M. Sorrels to Hurwitz & Fine. While Steve worked with us early in his career as an associate, we welcome him back as a Member in our Buffalo office bringing over two decades of experience in the areas of products liability, medical malpractice, nursing home litigation, municipal law, transportation negligence and premises liability. We also proudly welcome Tom Narducci as an Associate Attorney in our Melville office, practicing in the areas of premises liability, transportation negligence, and NYS Labor Law and construction accident litigation. If you are looking for some insurance coverage levity, please check out the recent publication of the New York Insurance Association, Your NY Connection, which features the annual report from Dan Kohane and Ryan Maxwell on the more head scratching insurance coverage decisions from the past year. This months decisions answer a host of interesting questions. Is a rental car company considered a manufacturer, distributor or seller of a defective product subject to strict liability? Must a plaintiff specifically rebut a defendant’s alternative causation theory to survive summary judgment on a manufacturing defect claim? Can a plaintiff sustain a claim for inadequacy of written warnings if he can’t read or speak English? Is a claim viable if plaintiff testifies he might have read the warning if it was visible? Can maritime and civilian exposures be parsed out in an asbestos claim?   And now for this month’s dad joke: How do we know that the Pilgrims landed in spring? Because April showers bring Mayflowers! -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] H&F Website:
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 Defects By: V. Chris Potenza [email protected] 04/01/2022      Waite v. EAN Holdings, LLC. United States District Court, Northern District of New York Strict products liability claims can proceed against rental car company.   Plaintiff commenced this action for strict products liability for injuries suffered while operating a rented motor vehicle. Defendants EAN Holdings, LLC, Enterprise Holdings, Inc., and SNORAC, LLC moved pursuant FRCP 12(b)(6) to dismiss for failure to state a claim, arguing that plaintiff's claims based on theories of strict liability and breach of warranty fail because only a manufacturer, distributer or seller of a defective product can properly be held strictly liable, and plaintiff has not alleged that the defendants manufactured, distributed or sold the used rental vehicle. While under New York law, generally, a strict liability claim can be asserted against a commercial lessor, the defendants challenged whether this doctrine applies to the used rental car market, arguing that the New York Court of Appeals has declined to extend the doctrine of strict products liability to commercial sellers of “used goods.” The District Court held that the rule in New York is that a commercial lessor of a product will be held strictly liable for personal injuries, just as would a product manufacturer, even in the absence of privity, at least where the product lease in question was made by an individual in the business of leasing a particular product, and there is no case as of yet in New York declining to apply strict products liability to lessors of rental cars.  As such, defendants' 12(b)(6) motion was denied.
Manufacturing Defects By: Brian F. Mark [email protected] While I continue to hear rumblings of a return to in-person appearances, I have yet to see any significant changes in the NYC Metro area courts. For the most part, court conferences and motion arguments continue to be conducted virtually. I can’t remember the last time anyone even asked if a deposition was being conducted in-person. At least the weather is finally turning the corner.    This month’s case arises out of an auto accident involving a tractor-trailer and an allegedly defective steering gear where the District Court examined whether a plaintiff is required to exclude other causes of the accident to meet his prima facie burden of establishing a manufacturing defect.   03/28/2022    Bocoum v. Daimler Trucks North America LLC United States District Court, Southern District of New York Keep on truckin’: Plaintiff entitled to prove a manufacturing defect claim by circumstantial evidence.   The plaintiff was injured when the tractor-trailer he was operating crashed and rolled over. The plaintiff brought a products liability action alleging that the accident was caused by defects in the steering gear of the tractor-trailer.  Although the accident location is well-known for tractor-trailer rollover crashes due to the speed of traffic and sharp corner, the plaintiff claimed that he heard “something on the steering wheel” prior to the crash and was unable to turn.   The defendants, designers and manufacturers of the subject tractor-trailer and steering gear, moved for summary judgment arguing that the steering gear was not defectively manufactured as it complied with its manufacturer’s internal specifications and requirements as well as those of the manufacturer of the tractor-trailer and that the plaintiff could not show that the gear deviated from the manufacturing requirements. In opposition, the plaintiff argued that questions of fact precluded summary judgment because the plaintiff had testified that the steering gear failed prior to the crash and that the defect did not come from an intervening source.   In reply, the defendants argued that the plaintiff failed to meet his prima facie burden because he made no attempt to exclude other causes of the accident or why the gear failed.   The Court rejected the defendants’ arguments, finding that the plaintiff had met his initial burden by testifying that he had heard something and was unable to turn before the crash because the steering wheel was not working. The Court also rejected the defendants’ argument that the plaintiff was required to present proof of the cause of the accident in rebuttal after the defendants proposed an alternative explanation for the crash (inattentiveness and excessive speed), holding that the well-established law in New York permits a plaintiff to prove a manufacturing defect by circumstantial evidence. As issues of fact exist as to the manufacturing defect claim, the Court denied the defendants’ motion for summary judgment.
Failure to Warn By: Kara M. Eyre This month we have two disparate decisions on whether the adequacy of written warnings entitle the defendant manufacturers of industrial grade equipment to summary judgment dismissal. The Eastern District found that the plaintiff’s inability to speak or read English does not preclude a claim contesting the adequacy of written warnings. On the other hand, the Western District finds plaintiff’s testimony that he might have read the warning had it not been curled up unconvincing and thus plaintiff could not sustain a claim that inadequate warnings were the approximate cause of his injury.   Also, it is that time of the month again for . . . Lady Facts, a lesser known but nonetheless inspiring fact about women in history.  Did you know that women, throughout the entire course of human history, have birthed babies? It’s true! Last year alone, women in the United States gave birth to over 3.5 million children. I will soon be one of those women, and this will therefore be my last Lady Fact until I return from maternity leave in the fall after bringing a very small lady of my own into the world. I trust that Products Liability Pointers will continue to offer engaging content in my absence, so stay tuned! 3/13/22  Chica-Hernandez v. Italpresse U.S.A., Inc. United States District Court, Eastern District of New York Plaintiff’s inability to read or speak English does not preclude claim on adequacy of written warnings. Plaintiff sued defendant asserting design defect, manufacturing defect, and failure to warn, under negligence and strict products liability theories, and breach of warranty claims.  Defendant manufactured an industrial machine called a pressing line, comprised of several components, including a series of rollers called a glue spreader.  Plaintiff suffered a complete loss of his left ring finger, and partial losses of his left small and long fingers when they became entangled in the glue spreader rollers while he was attempting to clean the machine.   The Court denied defendant's motion for summary judgment regarding plaintiff’s failure to warn claims, disagreeing with defendant that plaintiff was fully aware of the dangers of placing his hands near the moving rollers.  There had been evidence that the safety mechanisms had been overridden unbeknownst to plaintiff, and the District Court concluded that reasonable minds could differ as to the extent of plaintiff’s knowledge of the danger posed.  The District Court also rejected defendant’s argument that the danger was open and obvious, concluding that this is a fact-intensive question for a jury.  The District Court also concluded that plaintiff could potentially establish proximate cause, despite the fact that it was undisputed that plaintiff, who spoke little English, did not actually read the machine warnings.  The Court reasoned that if plaintiff can demonstrate that adequate warnings would have come to the attention of a third-party such as fellow workers or a manager, and they would have informed him of those warnings, his allegations of proximate cause were viable. 3/30/22  Hernandez v. Pitco Frialator, Inc. United States District Court, Western District of New York Failure to warn claim dismissed as plaintiff’s testimony fails to establish that he would have read and followed an adequate and accessible warning. Plaintiff worked at a Chipotle franchise and suffered second and third degree burns when a deep fryer manufactured by defendant tipped over as he was attempting to clean it.  The District Court rejected plaintiff’s mechanical engineering expert, finding that although the expert was qualified to offer an opinion as to the safety of the deep fryer and the adequacy of the safety warnings, the testimony was not admissible pursuant to FRCP 702 for lack of reliability and relevance.    Regarding plaintiff’s failure to warn claim, the District Court noted that a defendant may be liable under negligence or strict liability for failing to adequately warn of a potentially harmful aspect of the product.  However, the District Court found that plaintiff could not establish a failure to warn of the fryer’s alleged propensity to tip over without his expert’s testimony, and thus could offer no proof that said allegedly hazardous condition caused his injuries. Moreover, the District Court concluded that there were no triable issues of fact regarding whether any additional warnings would have influenced plaintiff to use the fryer differently, given his “vague” deposition testimony that he would have “possibly” read the warning sticker on the front of the fryer if it had not been “curled up.”
Multidistrict Litigation By: Michael J. Williams [email protected] April has reached us now and our long-suffering Buffalo Sabres are ready to take their late season success right past the playoffs and into the offseason.  Not making the playoffs with this vastly improved team may seem criminal, as were the actions of certain law firms, funding companies and physicians in the transvaginal mesh multidistrict litigations.  Be wary as lawyers and as patients, some in the legal field don’t play by the rules and need time in the penalty box.  In re: American Medical Systems, Inc., Pelvic Repair Systems Products Liability Litigation, Southern District of West Virginia, MDL No. 2325; United States v. Wesley Blake Barker, et al., Eastern District of New York Criminal Docket No. 19-239   Back in January 2012, the Judicial Panel on Multidistrict Litigation established related MDLs involving seven manufacturers of transvaginal meshes approved to treat pelvic organ prolapse or incontinence.  The case numbers swelled to 107,000 actions, an MDL grouping second in numbers only to asbestos at the time (since overtaken by the 289,000 or so 3M combat earplug cases now pending).  Bellwether trials took place, settlements were reached, and compensation amounts became linked to “revision” surgeries removing the mesh.       In the midst of this epic litigation, manufacturer AMS reported a then-unique development to the MDL court:  urogynecologist Andrew Cassidenti, MD, an occasional consultant, informed AMS that a funding company had invited him to conduct revision surgeries for $2,500 each “whether mesh was found or not”.  Dr. Cassidenti was also asked to include litigation-friendly phrases such as “defective mesh”, “bunched up mesh” and “mesh erosions” in his operative reports since “it’s just a game and we have to play it.”  Once Dr. Cassidenti expressed his concerns, the caller decided that he was not a “good fit” to become a player.      The United States Attorney, citing a 20,000 claimant settlement, subsequently explained the stakes of this game:  mesh patients without revision received $15,000 while revised patients averaged $230,000 per case.  Christopher Walker, MD, through his company MedSurge, became a player in exchange for $20,000 to $22,000 per surgery.  This totaled approximately $1,594,000 from a single funding company.  The service he provided:  revision surgeries not recommended by a woman’s medical providers, out of state, coordinated by cold-callers misrepresenting mesh risks and funding costs, often at the behest of unnamed law firms.      Earlier this year, Dr. Walker entered into another exchange, this time with the U.S. Attorney and the Eastern District of New York.  There he exchanged the risk of a long prison sentence for two felony convictions, pre-sentencing time served, two years supervised release, a $50,000 fine and a $866,787.25 forfeiture.  Wesley Blake Barker, a “funding facilitator” in the conspiracy, is scheduled to be sentenced on April 20, 2022.  MDL litigation reaches magnitudes that challenge us to remain diligently aware of opportunities, but through them we can achieve justice even in unusual forums. 
Toxic Torts, Asbestos, and Lead Paint By: Jesse L. Siegel [email protected]  

With the NBA Playoffs upon us, this week’s quasi-related sports story comes from the hardwood.  Reminiscent of the time when Duke basketball stand-out Zion Williamson famously blew out one of his Nike sneakers during a game, in Nachimovsky v. Nike, 2022 WL 943421 (EDNY Mar. 29, 2022), the plaintiff alleged a design defect in his Nike Prime Hype 2 sneakers caused his knee injury in a pick-up game.  Plaintiff offered a podiatrist as an expert who submitted two one-page reports opining on defective design.  Plaintiff did not offer a CV for the expert, nor did the expert provide documentation as to his methodology. Without any factual support for his findings, the unqualified expert was excluded. Without the expert, summary judgment for the defendants was a slam dunk.

Filled with plenty of round-ball puns, the decision found plaintiff had “fallen woefully short of the basket in satisfying his evidentiary burden”. Plaintiff could not show that Nike knew or should have known that a flawed design of the sneaker could or was likely to cause the type of injury. In addition, plaintiff could not provide evidence that Nike had a duty to warn him of a non-existent risk, that if there was a flaw that a feasible alternative design was possible or necessary, or that his specific pair of these sneakers suffered from a unique manufacturing defect. In sum, the Court functioned as Shaquille O’Neal on defense and rejected all of plaintiff’s claims.

Aside from the just released Court of Appeals asbestos decision highlighted above, there is another interesting asbestos decision in which the District Court utilizes both maritime law to analyze whether defendant’s products could have been a substantial factor in causing plaintiff’s mesothelioma in the context of both his Naval service and civilian career.  

03/28/2022        Pritt v. Air & Liquid Sys. Corp. United States District Court, Southern District of New York Issues of fact exist precluding summary judgment as to plaintiff's asbestos exposure during his civilian career, but not his naval service.

Plaintiff brought suit alleging he contracted mesothelioma after exposure to asbestos both in his time with the United States Navy as well as during his career as a civil engineer.  Among several defendants, General Electric (“G.E.”) was included as having designed and manufactured asbestos-containing products featured both on the U.S.S. Purdy, a destroyer, as well as during plaintiff’s time working as a union electrician in the Indianapolis area from 1972-1980.

Notably, the parties agreed that maritime law should govern all claims. Plaintiff must prove that he was exposed to the defendant’s product, and that the product was a substantial factor in causing the injury he suffered. As defendant established that plaintiff could not prove that he was exposed to asbestos from any G.E. products during his Navy service, summary judgment was generated as to the naval claims. By contrast, G.E. did not dispute that plaintiff worked with G.E. equipment during his civilian engineering career. Plaintiff was also able to provide more specificity regarding the type of G.E. equipment and even the number of times he was in contact with said equipment than he could for his naval claims. Thus, plaintiff’s testimony, along with the two expert opinions on causation, was enough to create a question of fact as to plaintiff’s exposure to asbestos in this instance and whether it was a substantial factor in causing his mesothelioma.

NEWSLETTER EDITORS V. Christopher Potenza [email protected] Brian F. Mark [email protected] ASSISTANT EDITORS Michael J. Williams [email protected] Jesse L. Siegel [email protected]  
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