Products Liability Pointers - Volume III, No. 5

Volume III, No. 5
Thursday, May 19, 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.
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

It is now May and I am happy to report that, I think, spring has finally arrived in Western New York. The flowers are growing, and so is our firm! Last month, we announced the triumphant return of Steve Sorrels to Hurwitz & Fine. Steve has even graciously agreed to serve as an editor of Products Liability Pointers and fill-in for Kara Eyre while she is on maternity leave. This month, we are thrilled to announce that another immensely talented litigator, Elizabeth Midgley, has joined us as well. Liz is a trial attorney and works primarily in the areas of medical malpractice and the defense of skilled nursing, long term care, and assisted living facilities, as well premises liability, products liability and transportation negligence. Among her many accomplishments, she is a past President of the Defense Trial Lawyers Association of Western New York, an elected Director of the Bar Association of Erie County, Chair of the Judiciary Committee of the Bar Association of Erie County, and was appointed by the Appellate Division of the Supreme Court, Fourth Judicial Department, as a member of the Grievance Committee of the Eighth Judicial District.

And that is not all the good news. I am extremely happy and proud to announce that we have promoted three attorneys to Members: Anastasia McCarthy (litigation), Brian Barnas (insurance coverage), and Brian Webb (litigation). While each of them has proven to be hard-working, dedicated, and skilled at their craft, they are all truly a pleasure to work with and make the future of our firm that much brighter.

As you worried that your boss in monitoring your activity and will call you out for just reading the Dad Joke and not all the exciting products liability news we have to offer? Well, if you are in New York, your boss now has to tell you that you are being monitored. Employment litigator Joe Brown, in his recent article, The Time Has Come: New York Electronic Monitoring Notice Law to Take Effect May 7, 2022, addresses the requirements on employers to notify workers of electronic monitoring of telephone, email, and internet access and usage. Last month we briefly addressed the recent Court of Appeals asbestos causation decision of Nemeth v. Whittaker, Clark, & Daniels, Inc., 2022 NY Slip Op 02769 (April 26, 2022). This month Jesse Siegel takes a bit of a deeper dive into the decision and it implications. While not strictly products related, we have an interesting decision addressing whether attorney-client privilege is vitiated if the attorney subsequently defends another party to the litigation. The Second Department addresses the viability of a strict products claim against a manufacturer when a third-party substantially alters the product. The Western District addresses a design defect claim against the manufacturer of “Fosamax,” a medication for the prevention and treatment of osteoporosis.

And now for this month’s dad joke: Which month of the year is the shortest? May. It only has three letters.

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]
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. Christopher Potenza [email protected]

04/13/2022 Klosin v. E.l. Du Pont de Nemours & Co. United States District Court, Western District of New York Subsequent representation of an additional party does not waive privilege over documents previously disclosed to counsel.

At issue in this case is a decision by the District Court to order disclosure by a non-party of an “Incident Investigation Report” subject to redactions of three sections, which the Court determined to constitute “core work product” subject to a heightened standard for disclosure. The Court had already determined that the Incident Investigation Report was prepared in anticipation of litigation. The document had been disclosed to counsel for the non-party, who then for a short time also became counsel for the primary defendant, and then served only as counsel for the primary defendant in this action. Plaintiff then made a motion to compel production of the unredacted Incident Investigation Report, arguing that the non-party waived its attorney-client or work product privilege over the Incident Investigation Report, and any other information exchanged, by disclosing it to counsel who later also served as counsel for the primary defendant. Citing to Ambac Assur. v. Countrywide Home Loans, Inc., 27 N.Y.3d 616, 625 (2016), the District Court held that under New York law, when one attorney represents multiple clients concerning a matter of common interest, any confidential communications exchanged among them are privileged against the outside world. Thus, the Court found that the non-party was entitled to share the Incident Investigation Report with its counsel during the period of her representation and that no waiver of privilege occurred by the fact of counsel's subsequent joint representation of the non-party and the primary defendant.
Manufacturing Defects By: Brian F. Mark [email protected]

Despite rumors of a return to in-person appearances, there have not been any recent changes in the NYC Metro area courts. Court conferences and motion arguments continue to be conducted virtually. The decision whether to hold appearances in person seems to be up to individual judges. While some judges have opted for in person appearances, others have been more cautious, taking a wait and see approach.

This month’s case arises out of accident involving a conveyor that had been modified by adding wheels to it, leading to the question of whether a strict products liability claim against the manufacturer can be sustained where the product was substantially altered, rendering it unsafe. 04/20/2022 Kosta v. WDF, Inc. United States District Court, Southern District of New York Rolling along. Strict products liability claim against manufacturer dismissed where the product was substantially modified by a third-party, rendering the product unsafe.

The defendant, Serpentix Conveyor Corporation (“Serpentix”), manufactured three conveyor machines which were to be placed in a New York City Department of Environmental Protection (“DEP”) facility. The DEP facility was undergoing renovation being performed by WDF, Inc. After the conveyors were delivered, WDF altered them by adding caster wheels to make them easier to move. The plaintiff was injured, and subsequently died, when one of the conveyors was being moved.

The decedent’s estate commenced suit against WDF and Serpentix. Serpentix moved for summary judgment, which was granted by the trial court.

On appeal, the Court examined product liability claims and noted that a manufacturer who has designed and produced a safe product will not be liable for substantial modifications or alterations made by a third party which render the product defective or otherwise unsafe.

In support of its motion, Serpentix demonstrated that at the time of delivery, the conveyors were required to be affixed to the ground. They were then substantially altered to include casters to allow the conveyors to be moved. The Court held that Serpentix established, prima facie, that the machine in question was substantially modified and that those modifications caused the conveyors to become defective and unsafe, thus shifting the burden to the plaintiffs to tender sufficient proof in admissible form to require a trial. As the plaintiffs failed to do so, the Court affirmed the trial court’s dismissal of the strict products liability cause of action.

Failure to Warn By: Stephen Sorrels  [email protected]

As you may have noticed, a new face has appeared in this issue of the Products Liability Pointers. As Chris announced in the previous issue, I have returned to Hurwitz & Fine as Member after a 20-year hiatus. During this time, I developed my areas of practice and accumulated considerable experience in administrative, litigation and appellate law. I am very happy to be back Hurwitz & Fine and thrilled to be joining a team of talented and experienced litigators.

While it was difficult to leave my prior practice after over 16 years, I could not pass up the opportunity to rejoin a firm that has also developed and excelled. I am also excited about the continued development and expansion of the firm’s practice teams in not only the area of product liability, but also medical malpractice, medical device defects, municipal and school matters and professional/Errors & Omissions litigation.

This introduction leads perfectly into my first submission in the Products Liability Pointers as the cases discussed combines both allegations of product defect and a defective pharmaceutical (Fosamax). Speaking of pharmaceuticals, did you know that the most described medication in the United States is Atorvastatin (although more commonly referred to as Lipitor)? Lipitor is a statin medication used to prevent cardiovascular disease and to treat abnormal lipid levels. In 2019, 24.5 million people in the U.S. was prescribed this drug (which equates to approximately 7.5% of the population).

While not as widely prescribed as Lipitor, Merck developed and received FDA approval in 1995 for the medication Fosamax. Fosamax (also referred to as Alendronate Sodium) is used to treat osteoporosis (a condition that causes bones to become weak and brittle). Fosamax belongs to a drug class called Bisphosphonates which works by slowing the body’s natural process of breaking down bone to assist in maintaining or increasing bone density.

Having provided this general information and background concerning Fosamax, we are now prepared to review and assess this month’s case: 05/05/2022 MacSwan v. Merck & Co., Inc. United States District Court, Western District of New York Just Say No: Specificity in the complaint required in actions against drug manufacturer.

Plaintiff MacSwan commenced this action against Merck alleging that the drug Fosamax caused plaintiff to suffer and sustain injuries that included osteonecrosis of the jaw (a severe bone disease occurring when there is a loss of blood to the bone), atrial fibrillation, stroke and brain damage. Plaintiff’s complaint asserts typical product liability claims including design defects (negligent design and strict liability), express and implied warranties and fraud. Plaintiff commenced the action in New York Supreme Court, and Defendant removed the case to the U.S. District Court.

In the early stages of the proceeding, defendant Merck sought dismissal of plaintiff’s Complaint by Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. To survive a Motion for Judgement on the Pleadings, the Complaint “must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its case.” Within the Complaint, the “Plaintiff must allege sufficient facts to ‘nudge their claims across the line from conceivable to plausible.” Facial plausibility exists when plaintiff “pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

In assessing the Complaint and the arguments asserted by the parties, the Court dismissed the claims for negligent design and design-based strict products liability as plaintiff failed to allege within the Complaint a feasible safer alternative design. Since defendant only moved to the dismiss the design defect claims, plaintiff’s failure to warn claim would still remain actionable. The Court further granted the dismissal of plaintiff’s expressed warranty claims as plaintiff failed “to identify any specific affirmation or promise by defendant with regard to Fosamax’s safety. In addition and since defendant did not challenge plaintiff’s failure to warn claims as part of this application, the Court determined that Plaintiff’s implied warranty claim would proceed on a failure to war basis despite the dismissal of the design defect claims. As for the claims of fraud, the Court also grants Defendant’s application to dismiss these claims as Plaintiff failed to please fraud with the particularity required by Rule 9(b).

In addition to opposing the dismissal of these claims, plaintiff requested leave to amend the Complaint if the Court determines that any cause of action is subject to dismissal. In making requests for leave to amend, the party requesting this relief is generally required to submit the proposed amended pleading; however and despite making such request, plaintiff did not submit a proposed amended Complaint. Notwithstanding, the Court permitted plaintiff to file an amended complaint within thirty (30) days of the Opinion and Order.

The lesson learned from the case in defending these matters in Federal Court is to review the Complaint carefully and assess whether plaintiff has properly plead the required facts and procedural elements. If the facts or procedural elements are lacking, then “just say no” to the complaint and seek dismissal of Plaintiff’s Complaint by Motion for Judgment on the Pleadings pursuant to Rule 12(c).

Multidistrict Litigation By: Michael J. Williams [email protected]

Is there anything more eye-opening on a beautiful May morning than a fresh, Keurig-brewed cup of coffee? K-style-cup manufacturers alleging anticompetitive marketing practices in multidistrict litigation probably isn’t. But what if Keurig – caught in evolving business standards for electronically stored information (ESI) – violated a litigation hold by losing data from nearly 80% of agreed-upon custodians critical to the expanding MDL? Now that’s an eye-opener to challenge your morning cup of Joe.

In re Keurig Green Mountain Single-Serve Coffee Antitrust Litigation, MDL 2542, United States District Court for the Southern District of New York, 2022 WL 1082087 (Apr. 11, 2022).

TreeHouse Foods, Inc, brought their initial complaint against Keurig in February 2014. Client document retention was raised at a June 2014 status conference and an ESI protocol entered in July. The MDL expanded to include over 30 related actions, began discovery in 2018, ended “substantial production” of documents in January 2019, closed briefing for discovery motions in June 2021, and held 10 hours of oral argument in January 2022 before the April 2022 opinion we now review. For those new to MDL practice: yes, expect this kind of schedule.

The duty to preserve evidence including ESI arises when a party reasonably anticipates that data may be relevant to existent or future litigation. Counsel must familiarize themselves with client document retention policies and data retention architecture so that they take all reasonable steps preserving this evidence. Counsel “will invariably” involve the client’s IT personnel to learn “actual (as opposed to theoretical)” means for data retention, affirmatively monitor retention compliance, and ensure that discoverable data is not lost. While integrating litigation and IT may seem novel to some practitioners, this S.D.N.Y. standard dates to 2004. Here, Keurig lacked a centralized computer asset management system until 2019, lacked documented procedures as to encryption keys through 2022 (while changing encryption protocols) and maintained litigation-held hard drives under conditions rendering them inoperable. In all, the hard drives for 23 of 29 agreed-upon, critical data custodians were lost or inaccessible. Despite or because of its IT deficiencies left uncorrected by counsel, Keurig also distinguished itself over eight years of good faith litigation creatively remedying its errors.

Applying the ESI standards from the 2015 Fed. R. Civ. P. 37(e) amendment, Keurig’s efforts provided discovery defenses by asserting it had taken reasonable steps (if not perfect) once its duty to preserve arose, that no prejudice occurred (largely due to alternative data sources) and its lack of intent to deprive its adversaries of evidence (not merely to destroy ESI). As a result of good faith corrections to its misfeasance, Keurig escaped severe spoliation sanctions for bad-intentioned malfeasance.

Ultimately, Keurig was ordered to pay a subset of requested attorneys’ fees, and plaintiffs were to be allowed to note at trial the failure to preserve three custodians’ hard drives and request a jury instruction that this be considered in deliberation. While all 53 Westlaw-pages of Magistrate Judge Cave’s thorough analysis deserve a careful read, the ESI take-aways are straightforward in complex MDL discovery: interact early and often with your client’s IT experts and, when business errors impact litigation, make timely and good faith amends.

Toxic Torts, Asbestos, and Lead Paint By: Jesse L. Siegel [email protected]  
Although it was only the first round of the playoffs, fans of the Broadway Blueshirts are still riding high after the New York Rangers’ thrilling Game 7 overtime victory over the Pittsburgh Penguins at the World’s Most Famous Arena. The most recent version of Madison Square Garden opened its doors in 1968. Did you know that it is the longest active major sporting facility in the New York metropolitan area? In fact, following a Rangers game on November 1, 2010, debris which may have contained asbestos fell from the ceiling area of the arena, causing the postponement of the Knicks basketball contest the following night.

In this week’s column, we will take a closer look at the recent Court of Appeals decision in the Nemeth case, which overturned a $15 million asbestos verdict and reiterated the requirements of experts in establishing a causal connection between asbestos exposure and mesothelioma.

04/26/2022 Nemeth v. Whittaker, Clark & Daniels, Inc. New York State Court of Appeals Conclusory assertions of experts linking asbestos to mesothelioma led Court of Appeals to overturn verdict, as plaintiff lacked proof of causation as a matter of law. Plaintiff's spouse used a commercial talcum powder, Desert Flower, on a daily basis for more than 10 years during the 1960s and early 1970s. Decades later, she developed mesothelioma and died. Plaintiff alleged that use of this powder was a proximate cause of decedent's illness. Plaintiff relied on two experts at the trial level; a geologist named Sean Fitzgerald, and a doctor of internal medicine named Dr. Jacqueline Moline.

Fitzgerald testified in accordance with a “glove box test,” in which he agitated a vintage sample of Desert Flower within a small, sealed plexiglass chamber to simulate decedent's use of the talc and to capture the released asbestos fibers, in an effort to target the actual exposure. Based upon this test, he testified that 2.7 million fibers were released into the air of the chamber during his test. Multiplying that number by the amount of time, duration, and frequency of decedent's exposure (seven minutes per day, every day, for over 10 years), he concluded that she must have been exposed to "thousands to millions of fibers, billions and trillions when you add it up through repeated use." Fitzgerald compared this to what an average person in an urban area breathes of 60,000 fibers per day.

Dr. Moline testified that mesothelioma is a "sentinel health event" or "signal tumor," meaning that "if someone develops that cancer, . . . then it signals that they've had exposure to that particular substance." In reaching her conclusions she relied on clinical experience treating patients with mesothelioma, peer reviewed literature, case studies, and government standards and regulations governing acceptable levels of asbestos. Dr. Moline concluded that Desert Flower was a “substantial contributing factor" to decedent's mesothelioma. Relying on Fitzgerald, she testified that decedent's exposure was "at levels at which multiple studies have shown elevated rates of mesothelioma."

The jury returned a verdict in plaintiff's favor, awarding $15 million to the estate and $1.5 million to plaintiff for loss of consortium. The Appellate Division, albeit divided, ruled that there was sufficient evidence, "consistent with the Court of Appeals' [precedent] . . . to support the jury's verdict and conclusion that decedent was exposed to a sufficient quantity of asbestos to cause the disease".

The Court of Appeals disagreed with both the trial court as well as the Appellate Division, finding that plaintiff’s proof failed as a matter of law to meet the test for proving causation. In doing so, the Court of Appeals reiterated the applicable test.

An opinion on causation should set forth a plaintiff's exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation). The Court further espoused that it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community. However, any method used must be "generally accepted as reliable in the scientific community."

Based upon this test, the Court found that Dr. Moline failed to provide any sufficient, legitimate foundational basis for her opinion that exposure to asbestos at a level analogous to decedent's was shown to be a substantial factor in causing mesothelioma of any kind. She testified that "not every inhalation of asbestos fibers results in peritoneal mesothelioma," because "some exposures to asbestos . . . are trivial and don't increase a person's risk." Her primary reliance was on the “glove box test” of Fitzgerald, which the Court noted was flawed in that the test was not performed in an actual bathroom to replicate the exact circumstances and thus mimic the true exposure levels of the decedent.

The Court of Appeals concluded that the test, at a minimum, requires that plaintiff establish, using expert testimony based on generally accepted methodologies, sufficient exposure to a toxin to cause the claimed illness.

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