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NEW YORK PRODUCT LIABILITY DECISIONS in SQUIB FORM-2002 to DATE A

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NEW YORK PRODUCT LIABILITY DECISIONS in SQUIB FORM-2002 to DATE A NEW YORK PRODUCT LIABILITY DECISIONS IN SQUIB FORM-2002 TO DATE a. What is this program? On an annual basis our firm has outlined all of the New York product liability decisions it could find from both state and federal courts. This is done for the Days of Decisions programs for the New York State Trial Lawyers Institute (September presentations). We have assembled here all of the case squibs we have done since 2002; currently 13 years’ worth of outlines. So far there are approximately 525 cases included. The usual format for a case is to give the cite, set forth the facts, and then give the holding. The cases have been arranged as they have been categorized in the annual format. See the table of contents at the start of this program for the topics. Within a topic, the cases generally run backward in time from the most recent ones. Over the years the annual format changed somewhat; these changes show up when we melded the cases on the same topic from various years. Further, copying problems created some discontinuities or rough spots, but we believe that the assemblage will prove useful. It goes without saying that you should read the case fully and check its status, as appeals may have been taken. b. How to use. Because this is such a massive program, one way to access is to search within it for the subject you want, or by case name. Another method is to locate the specific topic in the Table of Contents. Since for the most part, a case is placed only once, there may be multiple topics which the squib covers. Here again searching may help. c. Who is responsible for this? The project of annual outlines has been by Paul D. Rheingold, plus the concept of now placing these on line. The grunt work of assembling these 525 or so squibs was done by Scott D. Kagan, an associate in our firm. Over the years many associates in the firm have assisted directly in the location and squibbing of the cases. These include: Simcha D. Schonfeld, Laura Pitter and Michal L. Ihrig II. A. Theories of Liability ………………………………………………………………………………………… 1 1. Strict Liability …………………………………………………………………………………………...... 1 a. Design defect .................................................................................................................. 1 b. Optional safety Equipment; machine guards ………………………………… 32 c. Crashworthiness ……………………………………………………………………………. 36 d. Labeling; warning ………………………………………………………………………...... 38 e. Manufacturing defect …………………………………………………………………...... 68 2. Negligence ……………………………………………………………………………………….....…….. 72 3. Breach of Warranty ……………………………………………………………………………..…… 74 a. Breach of warranty, express and implied ……………………………………... 74 b. Magnuson-Moss Warranty Act ……………………………………………..........… 85 4. Fraud/Misrepresentation ……………………………………………………………………… 86 a. Fraud ………………………………………………………………………………………….. 86 b. Negligent misrepresentation ………………………………………………………. 88 5. Consumer protection ………………………………………………………………….…………. 89 6. Medical monitoring …………………………………………………………………….…………. 91 B. Special Plaintiffs………………………………………………………………………….……………….. 93 C. Special Defendants ………………………………………………………………………….………….. 94 1. Supplier of finished product with defective component …………….…………… 94 2. Component part manufacturer …………………………………………………….…….….. 95 3. Modifier of product ……………………………………………………………………….………. 98 4. Successor corporations ………………………………………………………………….…….... 99 5. Casual seller …………………………………………………………………………………….….… 100 6. Lessor ………………………………………………………………………………………………..….. 102 7. Installer/Repairer/Remodeler ……………………………………………………………… 104 8. Maintenance contractor ………………………………………………………………………… 105 9. Hospital …………………………………………………………………………………………………. 105 10. Restaurant/Provider of food …………………………………………………………………. 106 11. Distributor …………………………………………………………………………………………..….107 12. Transporter …………………………………………………………………………………………... 109 13. Defendant not in privity …………………………………………………………………………110 14. Patent and trademark holder …………………………………………………………….….. 111 D. Defenses …………………………………………………………………………………………………….. 112 1. Preemption …………………………………………………………………………………………… 113 2. Statute of limitations ……………………………………………………………………………. 137 3. Compliance with standards, regulations, industry custom …………………… 139 4. State of the art …………………………………………………………………………………….. 141 5. “Open and obvious” …………………………………………………………………………….. 142 6. Optional safety equipment …………………………………………………………………… 144 7. Misuse/Abuse ………………………………………………………………………………………. 146 8. Unforeseeable user ……………………………………………………………………………….. 147 9. Unintended use ……………………………………………………………………………………. 147 10. Illegal acts ……………………………………………………………………………………………. 148 11. Superseding cause ……………………………………………………………………………….. 148 12. Post sale modification of product ………………………………………………………… 149 13. Assumption of risk; plaintiff’s conduct ………………………………………………… 154 14. Superior knowledge of employer ………………………………………………………… 157 15. Learned intermediary rule ………………………………………………………….………. 157 16. Waiver of liability ……………………………………………………………………………….. 158 17. Economic loss doctrine ……………………………………………………………………….. 158 E. Evidence …………………………………………………………………………………………………… 161 1. Lay testimony ……………………………………………………………………………………… 161 2. Expert testimony ………………………………………………………………………………… 163 a. Federal courts ………………………………………………………………………….. 163 b. State courts ……………………………………………………………………………… 185 3. Res ipsa loquitur ………………………………………………………………………….……… 194 4. Circumstantial evidence; inference of defect; elimination of alternatives …………………………………………………………………… 195 5. Standards, publications ……………………………………………………………………….. 201 6. Trade secrets ………………………………………………………………………………………. 201 7. Similar claims ……………………………………………………………………………………... 201 8. Spoliation …………………………………………………………………………………………….. 202 F. Procedure Points 1. Jurisdiction; venue; forum non conveniens …………………………………….…… 212 2. Collateral estoppel ………………………………………………………………………………. 218 3. Choice of law ………………………………………………………………………………………… 218 4. Pleadings …………………………………………………………………………………………….. 220 5. Discovery …………………………………………………………………………………………….. 222 6. Empty chair defense: CPLR Article 16 …………………………………………………… 225 7. Contribution/Indemnification ………………………………………………………………. 225 8. Insurance issues ……………………………………………………………………………….…. 228 9. Summary judgment – absence of proof of defect; defendant identification …………………………………………………………………….... 228 10. Consolidation for trial ........................................................................................................ 243 G. Damages …………………………………………………………………………………………………… 244 1. Emotional distress ………………………………………………………………………………. 244 2. Punitive damages ………………………………………………………………………………… 244 3. Pre-existing conditions ……………………………………………………………………….. 244 H. Class Actions and Mass Torts …………………………………………………………………….. 245 1. Class action certification ……………………………………………………………………… 245 2. Mass tort litigation ……………………………………………………………………………… 249 A. Theories of Liability/Causes of Action 1. Strict Liability • Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102; 450 N.E.2d 204; 463 N.Y.S.2d 398 (N.Y. 1983). One of the ways to prove product defect is by presenting evidence that it was defectively designed. In order to make this claim, P must make a showing that: (1) the manufacturer marketed a product which was not reasonably safe in its design; (2) that it was feasible to design the product in a safer manner; and (3) that the defective design was a substantial factor in causing the plaintiffs injury. • Design defect • Design defect issue for jury where saw had no guard. Shamir v. Extrema Mach. Co., Inc., 125 A.D.3d 636, 3 N.Y.S.3d 389 (2d Dept. 2015): Facts- Plaintiff was injured using a power table saw. No more facts are set forth, other than there was no guard over the blade. Plaintiff asserted products claims for design defect and failure to warn. As to the design defect, defendant manufacturer on a SJM submitted documentary evidence demonstrating that it was not feasible to attach a permanent guard. However, plaintiff presented an affidavit of an expert describing an alternative design of the saw available at the time of the accident which had a permanent overarm guard. The trial court granted SJ, on both theories. Holdings- It was error to grant SJ on the design defect claim since plaintiff’s proof raised a triable issue of fact. However, as to the claim of failure to warn, it was proper to grant SJ since the manufacturer was under no duty to warn plaintiff, an experienced cabinet maker who had been using table saws for more than 20 years. The specific hazard was readily discernable. • Design defect claim requires proof of safer alternative. S.F. v. Archer Daniels Midland Co., 594 Fed. Appx. 11 (2d Cir. 2014): Facts- Parent brought action for child who allegedly developed type 2 diabetes due to consumption of high fructose corn syrup made by various defendants. Various product liability theories were pleaded, including design defect. The district court dismissed the case on the pleadings. Holdings- Dismissal was proper. A plaintiff in a NY design defect case must plead a safer alternative design, citing the Voss case. Here plaintiff did not so plead there was a safer form of high fructose syrup, and, as far as a claim that it should not be used at all, this would amount to an outright ban, which is beyond design defect concepts. In a second holding, the court refused to apply the concept of “market share” to the present situation, where the plaintiff could not identify the actual makers of the 1 syrup to which his child was exposed. That doctrine, adopted in the DES case, Hymowitz v. Eli Lilly & Co.,
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