Products Liability Pointers - Volume III, No. 8

Manufacturing Defects
By: Jesse L. Siegel
jls@hurwitzfine.com

The HF offices are abuzz, as both the Bills and Giants started the NFL 2-0 (with both suffering heartbreaking losses in week 3), and even the Jets showed some promise with a rousing comeback victory over the Cleveland Browns.  Meanwhile, the Mets clinched a playoff spot for the first time since 2016, and Aaron Judge of the Yankees has his sights set on breaking the American League home run record of Roger Maris from 1961.  No need to manufacture any excitement around these parts.
 
In this month’s manufacturing defects column, a complex jurisdictional question is analyzed in a rather lengthy decision by one of New York’s downstate federal courts.

07/21/2022          Piotrowicz v. Techtronic Industries
United States District Court, Southern District of New York
Court grants motion to dismiss for lack of personal jurisdiction over foreign manufacturer of miter saw sold by big box retailer in New York.
 
Plaintiff is a resident of Brooklyn who was using a Ryobi Compound Miter Saw miter saw in New Paltz, New York that he had purchased from a Home Depot in New York. Plaintiff alleges as he was operating the saw, it malfunctioned and amputated his left hand above the wrist.
 
Dalton is a foreign business corporation incorporated in China and headquartered in Yuyao City, Zhejiang, China.  Dalton designs, manufactures, distributes, and sells tools, power tools, and other electrical equipment. Dalton manufactured the saw in question.  According to Dalton, it has never been authorized to conduct business in any country other than China; does not maintain an office or bank account in New York; does not solicit business in New York; has never negotiated a contract in New York; and has no employees in New York.  Plaintiff alleges that Dalton transacts business within New York by manufacturing tools and other equipment for use within the state and by supplying and distributing such tools and equipment to third parties, such as the Ryobi Defendants and Home Depot, knowing that the items will be sold, purchased, and used in New York.
 
Dalton moved to dismiss on lack of personal jurisdiction, arguing that plaintiff failed to establish that it had sufficient contacts with New York because its alleged conduct occurred entirely in China and only by the conduct of others did the saw end up in New York.  More specifically, Dalton asserts that it (i) did not enter into a contract in New York or enter into a contract to deliver the model saws to New York; (ii) did not sell products directly to purchasers in New York; (iii) had :no detailed knowledge” of where the products it manufactured would be distributed or sold; (iv) had no knowledge of the amount or value of model saws sold in New York; and (v) did not ship products directly to New York and, in fact, delivered products only to the Port of Ningbo, China.
 
In opposition, plaintiff points to Dalton's role under an agreement in manufacturing the model saws for exclusive distribution and sale throughout North America to argue that Dalton had extensive and sustained contacts with New York in the form of a consistent stream of sales of the model saws.
 
In ruling on Dalton’s motion to dismiss, the Court answered a two-pronged question; whether a statutory basis for jurisdiction has been made, and whether the exercise of personal jurisdiction comports with due process.
 
The Court found that plaintiff satisfied the first prong under New York’s long arm statute, but plaintiff did not demonstrate that Dalton had minimum contacts with New York specifically, rather than the United States generally.  In other words, Dalton did not purposefully avail itself of the New York market in particular; the Court found no direct evidence of any purposeful contact with New York.  As such, the Court found that the exercise of jurisdiction over Dalton would violate due process and granted Dalton’s motion to dismiss.

Are you a Happy Camper?  Me…not so much. As a child growing up in Cincinnati, Ohio, I remember taking family camping trips.  While I do not remember many of the locations, I do remember fondly the green Coleman propane stove with two burners where we would cook eggs and pancakes for breakfast. I also remember the nightly campfires where we would toast and roast plump marshmallows. These are some wonderful family memories.

However, I also remember toileting in outhouses and showering in facilities that would be condemned by today’s standards (and probably should have been back then). I recall snakes; many snakes (and I hate snakes). I suffered through poison ivy and bug bites. I remember frequently returning to our campsites and often having to fend off feisty racoons and, in one case, three Smoky Mountain bears (and not the ones from Goldilocks) rummaging through our belongings. I remember the downpours that would bring down the tents and cause a family of seven (no, actually six as my mother would always find a way to not come) to seek refuge in the family station wagon.  I remember counting down the days until the end of the trip and my joy in finally arriving home and escaping my designated miniscule cubic space in the back of the aforementioned station wagon.

Some interesting facts about camping referenced from Factretriever, include that over 42 million Americans (about 14% of the U.S. population, go camping each year.  Campers when on 3.8 trips per year with each lasting an average of 2.7 nights. These campers drove approximately 146 miles to the destinations and set up camp about a ¼ mile from their cars. Approximately 42% of U.S. campers choose state park campgrounds.

The five most popular places to camp in the world are Mount Cook National Park (New Zealand), Devon (England), Loch Lomond and the Trossachs (Scotland), the Alps (France) and Hossa National Park (Finland).

The five most dangerous camping spots in the United States are Lake Mead National Recreation Area, Death Valley, Glacier National Park, Organ Pipe Cactus National Monument and Great Smoky Mountain National Park. I suppose the dangers of these locations are more weather and terrain related than those Smoky Mountain Bears.  Unlike the subject matter of this month’s case, one “danger” that I expect is not likely taken into consideration in determining these most dangerous camping spots is the camper’s use of cooking spray.

As you may expect from the introduction, our case this month involves camping, and specifically, cooking while camping. I think this case accurately demonstrates the “life may be better by the campfire” unless, of course, cooking spray is involved.

08/26/2022      Thomas v. ConAgra Foods
United States District Court, Western District of New York
Plaintiff’s specific allegations concerning defective can of cooking spray sufficient to withstand motion to dismiss, but claim of “non-specific defect” not recognized.
 
In this matter, the plaintiff, who was working in a campground kitchen (sounds more like “glamping” to me), used a can of cooking spray when it “suddenly and without warning began spraying its extremely flammable contents through the u-shaped vents on the bottom of the can causing a flash fire, flames and/or explosion.”

Within the complaint, plaintiff asserts 15 causes of action that include claims associated with design defect, manufacturing defect, failure to warn, “non-specific defect” and negligence.  In lieu of answering, Defendant ConAgra made an application seeking dismissal of the complaint.  While co-defendant DS Containers did answer, this party then also joined ConAgra’s application for dismissal of the complaint.

As we have seen in previous cases detailed in this newsletter, the standard of review for dismissing claims through a motion to dismiss generally favors the plaintiff. In reviewing these applications by defendants, the court may consider the facts alleged within the complaint, documents attached to the complaint as exhibits and documents incorporated by reference within the complaint. In reviewing these motions, the court is to accept all factual allegations as true and drawing all reasonable inference in favor of the plaintiff. To avoid dismissal, the plaintiff needs only to set forth enough facts to state a claim to relief that is plausible on its face. In stating a plausible claim, the factual allegations must be enough to raise a right to relief above a speculative level.

In addressing the claim for a design defect, the plaintiff must demonstrate 1) the product as designed posed a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and (3) the defective design was a substantial factor in causing Plaintiff’s injury. Plaintiff allegation that the can of cooking spray at issue was designed with vents and metal thickness that did not allow it to withstand temperatures to which it would foreseeably be exposed during use and/or storage was found by the Court as sufficient to satisfy the pleading requirements.

In asserting a failure to warn claim, plaintiff must show (1) that a manufacturer has a duty to warn; (2) against dangers resulting from foreseeable uses about which it knew or should have known; and (3) that failure to do so was the proximate cause of harm. The Court determined as sufficient plaintiff’s allegations that the warnings provided failed to provide adequate information regarding (1) a safe distance from a heat source to which the Cooking Spray can be safely placed; (2) the temperatures to which the Cooking Spray can be safely exposed without the risk of releasing the Cooking Spray’s contents; and (3) the combustibility and flammability of the propellants used in the Cooking Spray.

However, the Court did find that New York law does not establish a separate, independent cause of action for a “non-specific defect”. As a result, the Court did dismiss plaintiff’s causes of actions asserting any “non-specific defect.”

By: Michael J. Williams
[email protected]

E. Jean Carroll v. Donald J. Trump, In His Personal Capacity, Second Circuit No. 20-3977 (Sept. 27, 2022). 
 
On September 27, 2022, the Second Circuit, in a split decision authored by former President Clinton appointee Judge Guido Calabresi, found that former President Donald Trump may possess absolute personal immunity under the Westfall Act despite allegedly defaming author E. Jean Carroll who accused him of rape in a New York Bergdorf Goodman dressing room in the mid-1990s.  Ms. Carroll did not report the incident to law enforcement at the time, though she did inform two persons privately, and the issue became public in the context of her promoting a soon to be published memoir.  Trump denied the rape allegations, infamously responding “she’s not my type” among other comments. 
 
Westfall Act (28 U.S.C sec. 2679(b)(1)) immunity substitutes the defendant with the United States where a qualifying government employee commits allegedly tortious conduct within the scope of their employment.  Both the Trump and Biden Justice Departments have argued that Trump is entitled to absolute immunity for his statements while President.  The Second Circuit held that the President is a qualified government employee while certifying the scope of employment question to the District of Columbia Court of Appeals.  Because the United States maintains sovereign immunity as to defamation, Westfall immunity for Trump would leave Ms. Carroll with no remedy. 
 
While the legalities (and politics) of this opinion gives the learned reader plenty to unpack, the purpose of today’s article considers Ms. Carroll’s litigation in broader application.  Prior to the Second Circuit’s opinion, on August 8, 2022, Ms. Carroll informed the court that she will sue Trump under New York’s Adult Survivors Act (ASA) when the filing window opens on November 24, 2022.  (Carroll v. Trump, SDNY No. 20-07311, Doc. 89).  Ms. Carroll, citing discovery deficiencies, further informed the court that she intended to depose Trump despite her February 2022 statement to the contrary.  The letter both begins and concludes with reference to the ASA claim, noting the “unusual” and “unorthodox” advisory to the court of not-yet-filed litigation, in context of seeking to coordinate both cases for trial beginning February 6, 2023. 
 
All prudent executives, and not just the nation’s Chief Executive, must recognize that it will not be “unusual” or “unorthodox” for parties to apply current litigation to new ASA claims.  Defamation in 2019 and sexual battery in 1995 or 1996 present markedly different litigation concerns and evidentiary difficulties, yet Carroll’s learned counsel convincingly argues to join the claims for trial with the most serious allegations on an extremely truncated calendar.  Those defending any matter involving corporate history or personnel must remain vigilant to safeguard against creating or facilitating derivative ASA liability.  Additionally, as the Trump case illustrates, no entity is immune (except, perhaps, under Westfall) to its data potentially leading to or exacerbating potential ASA claims.  Governments, corporations, educational institutions, and correctional facilities generate extraordinary amounts of data in judicial and administrative proceedings, all of which must be viewed in the context of potential ASA liability. 
 
As Governor Hochul said while signing the ASA, the legislation “empower[s] survivors across New York to use their voices and hold their abusers accountable.  Potentially liable entities must monitor their own voices so that compensation is just and proper, rather than based on boorish individual comments not reflecting the institution, out of context data or ill-conceived litigation strategies.