JANUARY 2009 VOL. 81 | NO. 1 JournalNEW YORK STATE BAR ASSOCIATION Are Cigarettes Defective in Design? California and New York Also in this Issue Diverge in Approach and Result The Eyewitness Conundrum The Past as Present: by Robert G. Knaier The Last “Dead Heat” in the State Senate, 100 Years Ago The Medicare Secondary Payer Statute BESTSELLERS FROM THE NYSBA BOOKSTORE January 2009 Construction Site Personal Injury NYSBA Practice Forms on Representing People with Disabilities, Litigation — New York Labor Law CD-ROM—2007–2008 FFormsorms Third Edition (2007 Revision) oonn CCDD §§ 200, 240(1), 241(6) (2008 Revision) Access more than 700 forms for A comprehensive reference that covers the myriad use in daily practice. legal concerns of people with disabilities. It is the Perhaps no single scheme of statutory causes of action PN: 61508 / Member $280 / List $315 ideal reference for those who want a “one-stop” has initiated more debate. 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Expand your professional knowledge NEW YORK STATE BAR ASSOCIATION 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB0408 NEW YORK STATE BAR ASSOCIATION JournalNEW YORK STATE BAR ASSOCIATION BOARD OF EDITORS EDITOR-IN-CHIEF David C. Wilkes Tarrytown e-mail: [email protected] Mary Grace Conneely Monticello Willard H. DaSilva Garden City Philip H. Dixon Albany Elissa D. Hecker Irvington Judith S. Kaye New York City Eileen D. Millett New York City Thomas E. Myers Syracuse John B. Nesbitt Lyons Gary D. Spivey Albany Sharon L. Wick Buffalo MANAGING EDITOR Daniel J. McMahon Albany e-mail: [email protected] ASSOCIATE EDITOR Philip C. Weis Oceanside PUBLISHER Patricia K. Bucklin Executive Director NYSBA PRODUCTION STAFF ASSISTANT EDITOR Joan Fucillo DESIGN Lori Herzing Erin Corcoran EDITORIAL OFFICES “The NYSBA is a wonderful, welcoming legal community One Elk Street Albany, NY 12207 where members enjoy diversity of thought, lively debate, (518) 463-3200 FAX (518) 463-8844 educational insight, and a unique camaraderie among www.nysba.org attorneys. The professional and personal connections made ADVERTISING REPRESENTATIVE at NYSBA Section meetings and events last a lifetime. It is Network Media Partners Chris Martin one of the most valuable resources in my practice.” Executive Plaza 1, Suite 900 11350 McCormick Road Rosemarie Tully Hunt Valley, MD 21031 (410) 584-1960 Member since 1993 e-mail: [email protected] EUGENE C. GERHART (1912 – 2007) RENEW FOR 2009 Editor-in-Chief, 1961–1998 www.nysba.org/renew2009 Thank you for your membership support. CONTENTS JANUARY 2009 ARE CIGARETTES DEFECTIVE IN DESIGN? California and New York Diverge in Approach and Result by Robert G. Knaier 10 DEPARTMENTS 5 President’s Message The Eyewitness Conundrum 7 In Memoriam: 24 Lorraine Power Tharp How Courts, Police and Attorneys Can David S. Williams Reduce Mistakes by Eyewitnesses 8 CLE Seminar Schedule by BENNETT L. GERSHMAN 20 Burden of Proof by David Paul Horowitz 33 The Past as Present: The Last “Dead 44 Legal Research Heat” in the State Senate, 100 Years Ago by William H. Manz by BENNETT LIEBMAN 48 Attorney Professionalism Forum The Medicare Secondary Payer Statute 50 Language Tips 39 Medicare’s Recovery Rights in the by Gertrude Block Context of Liability Insurance (Including 51 New Members Welcomed Self-Insurance) and No-Fault Insurance 60 Classified Notices by ROBERT G. TRUSIAK 60 Index to Advertisers 63 2008–2009 Officers 64 The Legal Writer by Gerald Lebovits The Journal welcomes articles from members of the legal profession on subjects of interest to New York State lawyers. Views expressed in articles or letters published are the authors’ only and are not to be attributed to the Journal, its editors or the Association unless expressly so stated. Authors are responsible for the correctness of all citations and quotations. Contact the editor-in-chief or managing editor for submission guidelines. Material accepted by the Association may be published or made available through print, film, electronically and/or other media. Copyright © 2009 by the New York State Bar Association. The Journal ((ISSN 1529-3769 (print), ISSN 1934-2020 (online)), official publication of the New York State Bar Association, One Elk Street, Albany, NY 12207, is issued nine times each year, as follows: January, February, March/April, May, June, July/ August, September, October, November/December. Single copies $20. Periodical postage paid at Albany, NY and additional mailing offices. POSTMASTER: Send address changes per USPS edict to: One Elk Street, Albany, NY 12207. NYSBA Journal | January 2009 | 3 PRESIDENT’S MESSAGE BERNICE K. LEBER United Together in Troubled Times “[The American Dream] has thrived because in our darkest hours, we have risen above the smallness of our divisions to forge a path towards a new and brighter day.