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EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED.

The Fourth Department determined plaintiffs raised a question of fact whether a nail gun was defectively designed based upon an affidavit from an expert engineer. The nail gun could be operated in a “bump” mode where the nail is released when the tip of the gun comes into contact with a surface. And the nail gun could be operated by squeezing a trigger. Here the nail gun was in “bump” mode when it came into contact with plaintiff's head and a three-inch nail went into plaintiff's brain:

Plaintiffs' expert opined to a reasonable degree of engineering certainty that the nail gun is defective “because it did not have[,] as a sole means of actuation, a full sequential trip trigger” and instead also provided for the option for a “contact trip” or a bump trigger. The expert explained that the center of gravity of the nail gun causes the operator to maintain a finger on the trigger when lowering the nine-pound gun, as was the case here; that the sequence of the use of the trigger to determine the mode of operation causes operator confusion as to which mode of operation is in use, which he opined happened here based upon the testimony of the employee that he thought the nail gun was in sequential fire mode; that government safety studies he reviewed found a much higher rate of injury when the nail gun was in the bump mode; and that tests he performed and studies he reviewed established that the utility of the bump mode does not outweigh the danger of its use because it is “only 10% faster” than the sequential fire mode … . ” Where, as here, a qualified expert opines that a particular product is defective or dangerous, describes why it is dangerous, explains how it can be made safer, and concludes that it is feasible to do so, it is usually for the jury to make the required risk-utility analysis' ” … . Terwilliger v Max Co., Ltd., 2016 NY Slip Op 02226, 4th Dept 3-25-16

PRODUCTS LIABILITY (EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED)/DEFECTIVE DESIGN (PRODUCTS LIABILITY, EXPERT AFFIDAVIT RAISED QUESTION OF FACT WHETHER NAIL GUN WAS DEFECTIVELY DESIGNED)

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