Products Liability Pointers - Volume III, No. 9


Volume III, No. 9
Tuesday, December 27, 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

I suppose there is no better time to put together our year-end edition than while shut-in during a Christmas weekend blizzard!  But please spare your Buffalo snow jokes, Winter Storm Elliott is a bomb cyclone wreaking havoc across the entire country.

We have been closely monitoring the proposed Grieving Families Act, legislation that would completely overhaul wrongful death claims in New York by permitting recovery for emotional damages and expanding the class of persons who can seek recovery for a fatality.  While the bill passed both the New York Senate and Assembly in June, it has not been delivered to the Governor for fear of a veto in its current form.  It would appear that the many voices in opposition were heard, although we believe there is an appetite from the Governor to see some version of the bill pass which does not include retroactivity to pending claims, and addresses some of the procedural questions and clarity on the definition of family members who can assert a claim for damages. 

As addressed below by Mike Williams, on November 24, 2022, New York’s Adult Survivors Act’s lookback window opened, providing a one-year opportunity for survivors to bring civil actions previously barred by the statute of limitations.

In other court news, Med Mal attorney Beth Adymy discusses the decision by the New York Litigation Coordination Panel to coordinate nursing home COVID-19 claims.

Our resident Albany litigator addresses the interplay between product defect and negligence in his article, The Ups and Downs of Elevator and Escalator Litigation, which was recently published in the New York State Bar Association's Torts, Insurance & Compensation Law Section Journal. 

Hearty congratulations to David Adams, and his NYS Labor Law (Scaffold Law) & Construction Defect team, who obtained a complete defense verdict in a three-week construction site accident unified trial. 

We welcome back Kara Eyre, and just in time for cold and flu season, she warns that a claim that non-drowsy cough medicine will make you drowsy will get the cold shoulder from the court.   As reported by Jesse Siegel, a plaintiff was at a loss establishing a connection between her reduced hair follicles and the alleged offending hair gel. Mark Nemeth provides his insight and update on New York asbestos litigation.

And now for this month’s holiday-themed dad joke:

What do you call the irrational fear of Santa?


V. Christopher Potenza  ■  Member
Hurwitz Fine P.C.
The Liberty Building 
424 Main Street, Suite 1300  ■  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.

Labor Law Pointers:  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.

Manufacturing Defects
By: Jesse L. Siegel

It’s the most wonderful time of the year, but also the time of year with the most manufacturing defect claims.  I actually have no empirical data to back that statement up, but seems like it should be true, right?  Santa’s elves must be exhausted by the time Christmas rolls around.

Unfortunately, speculation such as that which have I engaged in above will not fly with the courts, especially when it comes to experts.  In this edition’s case, one of New York’s downstate federal courts discusses what plaintiff must prove, and ultimately fails to prove, in regards to causation in a products liability matter.
09/21/2022         Delgado v. Universal Beauty Products
United States District Court, Eastern District of New York
District Court grants defendant’s motion for summary judgment as plaintiff could not prove general causation between hair loss and product.
Plaintiff, age 56 at the time, purchased Robert’s Diamond Bond, a gel hair product of defendant, which when applied to the head dries to form a hard shell and allows the user to glue on hair extensions more safely.  Despite being a hairstylist, plaintiff had never used the product on herself before.  On November 1, 2015, plaintiff applied the product and attached hair extensions.  Despite having an itchy scalp the following day, plaintiff left the product, with the extensions, glued to her hair for at least a week and a half.  When she did finally wash the product out, portions of her hair fell out.
In order to adequately plead a claim for either strict product liability, negligence or breach of implied warranty, plaintiff must show that the product at issue was defective and that the defectively designed product was the actual and proximate cause of the plaintiff’s injury.
Moreover, the plaintiff must prove both general and specific causation to make out a prima facie case.  General causation is whether the type of injury can be caused or exacerbated by the defendant’s product, while specific causation is whether in this particular instance, the injury as actually caused or exacerbated by defendant’s product.  General causation is a condition precedent to establishing specific causation.
In the case at bar, plaintiff’s expert could not point to any ingredient in the product that ever caused permanent hair loss or cell damage.  Nor did the expert conduct or identify any scientific testing to support a hypothesis that the ingredients in combination could, potentially, be responsible for hair loss.  Plaintiff’s expert merely stated that he “could imagine” a scenario where the product could cause permanent hair loss, without any affirmative evidence regarding same.  Thus, plaintiff could not prove general causation and, as such, an analysis of specific causation was unnecessary.  However, the expert also conceded that plaintiff’s hair loss could have been attributed to any number of other known causes, including stress, dermatitis, hair glue, aging, and menopause.


Failure to Warn
By: Kara M. Eyre

I have finally returned to Products Pointers from maternity leave, and I couldn’t be happier!  This month, in Goldstein v. Walmart, the Southern District of New York dismisses a proposed class action false labeling claim by a plaintiff who was sleepy after taking Walmart’s Equate store brand cough medicine, despite it being labeled “Non-Drowsy.”  It’s also that time of the month again for . . . Lady Facts, a lesser known but nonetheless inspiring fact about women in history.  This month we honor Rosalind Franklin, a British chemist who discovered the molecular structures of DNA, RNA, and viruses.  While her discoveries were critical to many advances in modern day medicine and forensic science, Ms. Franklin’s work is often incorrectly accredited to her male colleagues – Watson and Crick. 

10/28/22           Goldstein v. Walmart
United States District Court, Southern District of New York
District Court finds preemption applies and dismisses claim that non-drowsy cough medicine caused drowsiness.

Plaintiff purchased a bottle of the Walmart store brand cough medicine, called Equate Daytime Tussin DM Max “Non-Drowsy” formula.  This medicine contains a centrally acting antitussive drug called dextromethorphan hydrobromide (DXM).  Plaintiff claimed that after taking a recommended dose of the medicine, she was unexpectedly drowsy, despite the “Non-Drowsy” designation.  Plaintiff claimed that the “Non-Drowsy” representation on the bottle was misleading, and thus initiated a proposed class action lawsuit asserting breach of express warranty, breach of the Magnuson-Moss Warranty Act, and violations of various state consumer protection laws.  In her Complaint, Plaintiff cited a study supposedly showing that 10.4% of users of products containing DXM develop drowsiness within three days of starting treatment. 
Defendants argued that plaintiff’s claims were preempted by the Federal Food, Drug, and Cosmetic Act (“FDCA”) and that plaintiff had no standing to ask for an injunctive order from the Court regarding the labeling of the product, because now that she no longer trusts the “Non-Drowsy” labeling, it is unlikely she will be harmed by the product in the future.  U.S. District Court Judge Liman agreed with defendants on both fronts and dismissed plaintiff’s Complaint.
In evaluating preemption, the Court noted that the FDCA has an express preemption clause for over-the-counter (“OTC”) drugs, preempting requirements that are “different from or in addition to” or “otherwise not identical with” the FDCA.  Although a preemption clause may not immediately extinguish a claim because the question of Congress’ displacement of state law still remains, plaintiff’s claims in this instance do not fall outside the scope of federal requirements and were therefore preempted.  The Court explained that the applicable monograph clearly addresses whether DXM requires a drowsiness warning, and the FDA has explicitly declined to require a warning on oral antitussives that contain DXM that they may cause drowsiness.  In other words, the Court felt that the FDA explicitly considered plaintiff’s claim that DXM caused drowsiness and determined that insufficient data existed to support such a finding.  
Judge Liman also rejected plaintiff’s request for an injunction forcing Walmart to change the labeling, finding that she lacked standing pursuant to Article III of the U.S. Constitution.  Plaintiff failed to allege an actual or imminent harm that was more than conjectural or hypothetical.  Given that plaintiff now no longer trusts the “Non-Drowsy” label, there is no reason to believe that she would be subject to any future harm.  The Court, noting that there is no reason why plaintiff would choose to purchase the product in the future, held that her theory of harm is fundamentally premised on her past alleged injury, and is superfluous to her future decisions.


By: Michael J. Williams
[email protected]

On November 24, 2022, New York’s Adult Survivors Act’s lookback window opened, providing a one-year opportunity for survivors to bring civil actions previously barred by the statute of limitations.  Survivors may file suit based on a wide range of abusive actions prohibited by the Penal Law’s Article 130, including such acts as forcible touching.  The ASA is based largely on the Child Victims Act that resulted in approximately 11,000 actions being filed for the abuse of minors.  Claims under the ASA will pursue similar theories as its CVA predecessor, seeking to hold individuals, supervisors, employers, premises owners and security providers liable, both based on direct involvement and on vicarious liability theories.

ASA liability can be analogized to recent pre-enactment litigation.  On October 7, 2022, 147 women who reported sexual abuse by a gynecologist reached a $165 million settlement against two New York hospitals.  This followed a $71.5 million settlement in 2021 resolving the claims of 79 additional women. The physician was licensed in New York from 1990 until he was required to surrender his medical license in 2016 after pleading guilty to a criminal sex act in the third degree and forcible touching.  The Manhattan District Attorney’s Office confirms that its investigations into this person’s misconduct are ongoing and include new allegations. 

That case case presents what is commonly understood under the ASA: a civil action against the alleged perpetrator and their employer.  However, other early filers have targeted more tangential parties.  One plaintiff has sued JP Morgan Chase for its connections with deceased and disgraced financier Jeffrey Epstein for enablement, having been “a complicit financial banking institution that would ignore red flags” while financing his ventures.  JP Morgan Chase’s agents are not charged with knowing about Epstein’s sex trafficking, but of having benefited from the business relationship and ignoring suspicious financial activity.  Deutsche Bank has been similarly named in another Epstein-related lawsuit, after having paid a $150 million fine resulting from its dealing with Epstein and Russian oligarchs. 

As discussed previously, author E. Jean Carroll had forecast her intention to file an ASA case against former President Donald Trump, a second action following her ongoing defamation case (Carroll v. Trump, SDNY No. 20-07311).  Ms. Carroll has asked the court to coordinate the February 6, 2023 trial in her defamation case, that has proceeded since 2020, with her newly filed ASA case on an extremely truncated schedule.  Potential defendants must be aware that pre-existing litigation may become a vehicle for ASA claims, and that even the evidence discovered in actions previously dismissed as time barred will support renewed ASA litigation.  
The changing legal landscape must also account for new and soon to be enacted legislation.  On March 3, 2022, President Joe Biden signed an amendment to the Federal Arbitration Act captioned the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021.  The amendment retroactively prohibits defendants from compelling arbitration, and further permits the survivor to proceed in joint, class or collective actions, leading defendants to incur greater expenses and public exposure (particularly should public notice be required in class action or multidistrict litigation).  Survivors may elect to waive these rights in arbitration agreements after the events at issue, making an employer’s most recent incarnation of any such agreements critical to its defense.  
Additionally, potential defendants should recall that President Biden signed the Eliminating Limits to Justice for Child Sex Abuse Victims Act earlier this year, ending the federal statute of limitations for such offenses.  While the federal government has not yet followed New York as to adults, such further action should be anticipated.  Additionally, business entities operating in multiple jurisdictions must be aware of ASA and CVA legislation in each state where they conduct substantive business.  In the last twenty years, at least 23 other states and three United States territories have eliminated or expanded their statute of limitations for abuse claims.  Any potential defendant at risk for federalized or multijurisdictional litigation must prepare for complex litigation accompanied by changed and changing rules.  
More than ever, responsible business practices require action to prevent future abuse claims, documenting those efforts in employee and management materials, and updating arbitration agreements in employment materials.  Business management must also look to the potential for past liability, secure and preserve materials that document past prevention efforts, conduct their insurance archaeology while documents might still be identified, and maintain appropriate claims-made coverage for directors and officers or employment practices.  The Boy Scouts of America’s motto of “be prepared” failed to prevent a $2.46 reorganization plan in bankruptcy due to CVA litigation.  Potential defendants must be more prepared and act prospectively to avoid similarly devastating outcomes under the ASA.

Toxic Torts, Asbestos, and Lead Paint
By: Mark S. Nemeth

It’s hard to believe I am approaching my six-month anniversary of joining Hurwitz Fine, and I could not be happier to be part of such a talented, dedicated, and collaborative team of lawyers. 

In the world of asbestos litigation, the more things change the more they stay the same.  Earlier this year we reported on the Court of Appeals decision in Nemeth (no relation): Court of Appeals Decision Leads to More Stringent Analysis of Proof to Establish Causation in Asbestos Litigation.  While the decision resulted in vacatur of a pretty substantial verdict, and led to an initial wave of summary judgment motions and dismissals on many current claims, the plaintiff’s bar has since mostly adapted their expert opinions in accordance with the guidance of the decision.  In upstate news, Judge Raymond Walter is taking over the asbestos docket for the 8th Judicial District.  Judge Gall, who handles every other upstate judicial district, is returning to in-person conferences, meaning asbestos litigators will be making two trips to Utica every month.  Luckily, Utica boasts a pretty nice brewery and a fine Italian food scene serving up regional specialty Utica Greens.
We did have an asbestos verdict in Erie County in November involving a 65-year-old plaintiff with malignant epithelioid mesothelioma.  The jury returned a verdict against a brake manufacturer for $3.3 million ($1 million past; $2.3 million future pain and suffering). There was no award of punitive damages.
We do have one interesting (and disappointing) appellate decision from the First Department in which a defendant was ordered to provide discovery related to punitive damages prior to a punitive damages award. 

Happy New Year everyone!  Hopefully I will be plowed out of my house by then.

11/17/22           Maseto v. Burnham
Appellate Division, First Department.
Asbestos defendant ordered to appear for deposition on issues concerning punitive damages prior to punitive damages award. 

According to the case management order (CMO) entered June 26, 2017 – which remains the CMO governing New York City Asbestos Litigation (NYCAL) – “Where plaintiff asserts a punitive damages claim against a defendant, ... defendant shall answer plaintiff[’s] standard interrogatories and document requests seeking information related to punitive damages” The CMO also appoints a Special Master, who is charged with supervising compliance with discovery, including the “adequacy of the plaintiffs’ and defendants’ responses to standard interrogatories, production of documents, expert disclosure, the conduct of depositions, and other discovery disputes that may arise.”

On appeal, the First Department held that the Special Master providently exercised her discretion in directing Burnham to appear for deposition on punitive damages-related issues after finding that Burnham's responses to plaintiffs’ standard punitive damages interrogatories were inadequate. Burnham's reliance on authority in non-asbestos or -toxic tort cases holding that discovery on punitive damages should await a finding that it is, in fact, liable to plaintiff for punitive damages is misplaced, given the exceptional needs of asbestos cases and litigants, which justified the CMO and its deviations, where necessary, from the CPLR in the first place.

V. Christopher Potenza
[email protected]

Brian F. Mark
[email protected]
Kara M. Eyre 
Mark S. Nemeth
[email protected] 
Jesse L. Siegel
[email protected]
Stephen M. Sorrels
Michael J. Williams
[email protected]
Read Past Editions of Products Liability Pointers
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