Products Liability – New York Appellate Digest

PLAINTIFF WAS SEVERELY INJURED IN A FORKLIFT ACCIDENT AND BROUGHT THIS ACTION ALLEGING DEFECTIVE DESIGN; THERE WAS A DEFENSE VERDICT WHICH WAS REVERSED BECAUSE SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN ADMITTED AND SOME EXPERT TESTIMONY SHOULD NOT HAVE BEEN STRUCK (THIRD DEPT).

The Third Department, reversing the judgment finding the defendant’s forklift was not defectively designed, determined the admission and exclusion of expert evidence required a new trial. Plaintiff’s leg was crushed when the forklift he was operating struck a support beam in a warehouse. A portion of his leg was amputated. Defendant’s expert’s analysis was based in part on statistics that did not involve forklift-accidents and therefore was inadmissible. Plaintiff’s expert’s testimony about the need for future medical treatment was competent and should not have been struck:

Because the underlying data was specific to accidents involving defendant’s forklifts and plaintiff’s expert also relied upon and testified to that database, we find that Supreme Court properly allowed Marais [the defense expert] to testify as to the rate of injuries sustained in the operation of defendant’s forklifts as computed from defendant’s database. However, the court abused its discretion in permitting testimony related to the utilization of the wider category of accidents involving “industrial truck and tractor operators,” as defendant failed to establish that the underlying conditions of those accidents were substantially similar to the facts presented here … . The core of Marais’ testimony was that the rate of injuries involving defendant’s forklifts was significantly lower than other industrial-related injuries. Even crediting that the federal database Marais utilized to make this comparison included forklift injuries, it also included a variety of other dissimilar industrial vehicles. In addition, there was no way to determine how many of the reported injuries therein were the result of forklift operations or, equally as important, the underlying conditions precipitating those accidents. * * *

… Supreme Court abused its discretion by striking Root’s (plaintiff’ medical expert’s] testimony and then limiting certain aspects of Thomas’ [plaintiff’s economist’s] testimony regarding plaintiff’s future medical expenses because the testimony was supported by “competent proof of necessary, anticipated medical costs through [a qualified physician] and [an] expert economist” … . Johns v Crown Equip. Corp., 2025 NY Slip Op 05856, Third Dept 10-23-25

Practice Point: Here plaintiff was injured in a forklift accident. Statistical evidence offered by defendant’s expert which included data that did not relate to forklifts should not have been admitted. To be admissible, statistical evidence must relate to substantially similar accidents.

Practice Point: Here the evidence of future medical procedures and costs offered by plaintiff’s medical expert and economist was competent and should not have been struck.

October 23, 2025

Constitutional Law, Immunity, Negligence, Products Liability

PLAINTIFFS ALLEGED A TEENAGER WHO COMMITTED RACIALLY-MOTIVATED MASS MURDER WAS ADDICTED TO SOCIAL MEDIA CONTENT PRESENTING THE VIEW THAT WHITES ARE BEING REPLACED BY NON-WHITES; PLAINTIFFS ALLEGED THE SOCIAL MEDIA PLATFORMS WERE DEFECTIVELY DESIGNED TO BE ADDICTIVE; OVER A TWO-JUSTICE DISSENT, THE DEFENDANT SOCIAL MEDIA PLATFORMS WERE DEEMED IMMUNE FROM SUIT BASED UPON THIRD-PARTY CONTENT PURSUANT TO SECTION 230 OF THE COMMUNICATIONS DECENCY ACT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, in a full-fledged opinion by Justice Lindley, over a two-justice dissent, determined the actions against social media platforms alleging the platforms are defectively designed to be “addictive” such that a teenager’s addiction to racist content led him to commit a racially-motivated mass shooting, should have been dismissed:

These consolidated appeals arise from four separate actions commenced in response to the mass shooting on May 14, 2022 at a grocery store in a predominately Black neighborhood in Buffalo. The shooter, a teenager from the Southern Tier of New York, spent months planning the attack and was motivated by the Great Replacement Theory, which posits that white populations in Western countries are being deliberately replaced by non-white immigrants and people of color. After driving more than 200 miles from his home to Buffalo, the shooter arrived at the store and opened fire on Black individuals in the parking lot and inside the store with a Bushmaster XM-15 semiautomatic rifle, killing 10 people and wounding three others. * * *

The social media defendants moved to dismiss the complaints against them for failure to state a cause of action (see CPLR 3211 [a] [7]), contending, inter alia, that they are immune from liability under section 230 of the Communications Decency Act (section 230) (see 47 USC § 230 [c] [1], [2]) and the First Amendment of the Federal Constitution, applicable to the states through the Fourteenth Amendment. * * *

… [I]t is undisputed that the social media defendants qualify as providers of interactive computer services. The dispositive question is whether plaintiffs seek to hold the social media defendants liable as publishers or speakers of information provided by other content providers. Based on our reading of the complaints, we conclude that plaintiffs seek to hold the social media defendants liable as publishers of third-party content. We further conclude that the content-recommendation algorithms used by some of the social media defendants do not deprive those defendants of their status as publishers of third-party content. It follows that plaintiffs’ tort causes of action against the social media defendants are barred by section 230. Patterson v Meta Platforms, Inc., 2025 NY Slip Op 04385, Fourth Dept 7-25-25

Practice Point: Consult this opinion for an in-depth discussion of whether social medial platforms can be liable for the actions of persons who become addicted to and are motivated to act by third-party social-media content. Here plaintiffs unsuccessfully argued that social media platforms are defectively designed using algorithms which foster addiction.

July 25, 2025

Medical Malpractice, Negligence, Products Liability

THE USE OF ICE PACKS WAS NOT PART OF THE DEFENDANT MANUFACTURER’S BURN-TREATMENT SYSTEM; THEREFORE THE DEFENDANT COULD NOT BE HELD LIABLE BY THE INJURED PLAINTIFF FOR THE FAILURE TO WARN AGAINST APPLYING ICE PACKS TO BARE SKIN (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant Zeltiq, the manufacturer of a system for treating burns (CoolSculpting Systems), could not be held liable for injury allegedly caused by the application of ice packs after the CoolSculpting treatment. The complaint alleged a failure to warn of the the danger of using ice packs. The use of ice packs was not part of the CoolSculpting treatment:

Zeltiq also had no duty to warn plaintiffs of any risks associated with using ice packs after treatment with the CoolSculpting System. Because the CoolSculpting System is a FDA Class II medical device that requires a prescription, Zeltiq’s duty to warn runs to physicians, not directly to patients … . Thus, in this case, Zeltiq’s duty ran to Silverstein’s [plaintiff’s] treating physician, Dr. Brauer. However, there is no duty to warn of risks that are obvious, including risks that are well-known to physicians because of their medical training … . Dr. Brauer testified that through his education and training, he was aware of and knew of the dangers of placing ice on bare skin, and that those dangers were basic medical knowledge … . Plaintiffs’ expert does not dispute that these dangers are basic knowledge in the medical community and, in fact, opines that it is a deviation from the standard of care to place ice packs on bare skin.

In addition, given Dr. Brauer’s awareness of the risk, his status as a “responsible intermediary” breaks the chain of proximate cause between any failure to warn by Zeltiq and the harm to Silverstein … . Silverstein v Coolsculpting Zeltiq Aesthetics, Inc., 2025 NY Slip Op 01183, First Dept 2-27-25

Practice Point: Here the application of ice packs to bare skin was not part of the defendant manufacturer’s burn-treatment system. The use of the burn-treatment system is by prescription only, so the duty to warn owed by the manufacturer runs to the physician, not the patient. Here the dangers of applying ice packs to bare skin are well known to physicians, so the use of ice packs by plaintiff’s physician broke the chain of proximate cause re: the defendant manufacturer.

February 27, 2025

Civil Procedure, Evidence, Negligence, Products Liability, Toxic Torts

THE IDENTITIES OF THE SUBJECTS OF TWO SCHOLARLY ARTICLES LINKING TALCUM-POWDER PRODUCTS WITH MESOTHELIOMA SHOULD BE RELEASED; THE INFORMATION IS NOT PROTECTED BY HIPAA OR THE FEDERAL COMMON RULE; PRODUCTION OF THE INFORMATION WOULD NOT BE UNDULY BURDENSOME AND WOULD NOT DETER FUTURE RESEARCH (FIRST DEPT).

The First Department, reversing Supreme Court’s denial of a petition to enforce an out-of-state subpoena, determined the identities of the subjects of two scholarly articles linking cosmetic talcum powder products with mesothelioma were not protected by HIPAA’s privacy rule or the federal Common Rule:

The information sought by the subpoenas … is clearly relevant to the underlying New Jersey personal injury action. It goes directly to the credibility of these articles, which speak to the central issues in dispute and are relied on by three testifying experts, and whose author was to testify as an expert until she voluntarily withdrew … .

The information sought by the subpoenas is not protected from disclosure by HIPAA’s privacy rule, which does not apply where, as here, the health care providers did not provide physician services in connection with the articles and the subjects were never their patients … .

The information sought by the subpoenas is also not protected from disclosure by the federal Common Rule because the articles to which they relate fall within the exemption for secondary research based on publicly available identifiable private information or biospecimens … .The burden was on the party opposing the subpoenas to prove that this information was produced in the underlying litigations subject to a protective order … . Neither party opposing disclosure of the information has offered any such proof.

Production of the information sought by the subpoenas would not be unduly burdensome, nor is it likely to have a chilling effect on future medical research. The subject information consists of just a few pages, is easily located, does not concern ongoing research, and does not reveal the unpublished thought processes of the researchers. Moreover, the subjects never actually agreed to participate in any research, having released their information in connection with public litigation, and so it is unclear how allowing disclosure of their identities might deter future research participation … . Matter of Johnson & Johnson v Northwell Health Inc., 2024 NY Slip Op 04909, First Dept 10-8-24

Practice Point: The decision outlines the issues involved in seeking the identities of the subjects of two scholarly articles linking talcum-powder products with mesothelioma.

October 8, 2024

Evidence, Negligence, Products Liability

PLAINTIFF ALLEGED THE AIR BAG UNEXPECTEDLY DEPLOYED, CAUSING INJURY; DEFENDANT FORD’S EXPERT EVIDENCE SUBMITTED IN SUPPORT OF DEFENDANT’S SUMMARY JUDGMENT MOTION DID NOT DEMONSTRATE THE CAUSE OF THE DEPLOYMENT WAS NOT ATTRIBUTABLE TO A PRODUCT DEFECT (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this “unexpected-air-bag-deployment” case:

Just prior to the airbag’s deployment, decedent’s vehicle had collided with a deer. After the collision, decedent parked his vehicle on the side of the road, then he looked to his right to check on his passengers in the vehicle and looked to the left to see the deer. At that point the airbag deployed. * * *

It is well settled that a strict products liability cause of action may be established by circumstantial evidence, and thus a plaintiff ” ‘is not required to prove the specific defect’ ” in the product … . “In order to proceed in the absence of evidence identifying a specific flaw, a plaintiff must prove that the product did not perform as intended and exclude all other causes for the product’s failure that are not attributable to defendants” … . ” ‘Proof that will establish strict liability will almost always establish negligence’ ” … . * * *

Ford Motor’s expert failed to assert that there existed a likely cause of the unexpected deployment of the airbag that was “not attributable to any defect in the design or manufacturing of the product,” and therefore Ford Motor failed to meet its burden on its motion with respect to the strict products liability and negligence causes of action … . Keem v Ford Motor Co., 2024 NY Slip Op 02632, Fourth Dept 5-10-24

Practice Point: Defendant Ford Motor did not present sufficient expert evidence to warrant summary judgment in this products liability/negligence action based upon the alleged unexpected deployment of an air bag.

May 10, 2024

Civil Procedure, Evidence, Negligence, Products Liability

PLAINTIFF WAS INJURED USING DEFENDANT’S BOW; DEFENDANT MOVED FOR PERMISSION TO PERFORM TESTS ON THE BOW WHICH INVOLVED REMOVING AND THEN REPLACING THE DAMAGED COMPONENT OF THE BOW; THE JUSTIFICATION FOR SUCH TESTING WAS NOT DEMONSTRATED (FOURTH DEPT).

The Fourth Department, reversing Supreme Court, determined defendant bow manufacturer (PSE) was not entitled to testing of the bow beyond the visual inspection already done. Plaintiff was struck in the eye when using the bow. Defendant moved for permission to replace the damaged component of the bow, test the bow, and then replace the damaged component. Supreme Court had granted the motion:

A party “seeking to conduct destructive testing should provide a reasonably specific justification for such testing including, inter alia, the basis for its belief that nondestructive testing is inadequate and that destructive testing is necessary; further, there should be an enumeration and description of the precise tests to be performed, including the extent to which each such test will alter or destroy the item being tested” … . Even assuming, arguendo, that the additional testing proposed by PSE is non-destructive, we conclude that PSE failed to establish in the first instance that the additional testing is “material and necessary” to its defense of the action (CPLR 3101 [a] …). PSE’s expert made only a conclusory statement that re-stringing the bow with an undamaged component “should better represent the condition it was in prior to the” accident … . Therefore, even in the absence of an abuse of the court’s discretion, we substitute our own discretion for that of the motion court and deny the motion … . Roche v Precision Shooting Equip., Inc., 2024 NY Slip Op 02419, Fourth Dept 5-3-24

Practice Point: There are standards which must be met in a products liability case before a court will allow testing, either nondestructive of destructive testing, of the product. Those standards were not met by the motion papers in this case.

May 3, 2024

Immunity, Negligence, Products Liability

PLAINTIFF WAS INJURED AT JFK AIRPORT, OWNED BY THE PORT AUTHORITY OF NY & NJ, BY A FORKLIFT WHICH WAS BACKING UP; THE FACT THAT REAR-VIEW MIRRORS WERE OPTIONAL WAS NOT A DESIGN DEFECT, CRITERIA EXPLAINED; THE PORT AUTHORITY WAS IMMUNE FROM A NEGLIGENCE ACTION ALLEGING FAILURE TO INSPECT THE FORKLIFT, CRITERIA EXLAINED (SECOND DEPT).

The Second Department, reversing Supreme Court in this forklift-accident case, determined the fact that the rear-view mirrors for the forklift were optional was not a design defect, and the landlord, the Port Authority, was immune from the negligence action alleging a failure to properly inspect the forklift:

… Unicarriers [defendant forklift manufacturer] established … the plaintiff’s employer was thoroughly knowledgeable about forklifts and knew that mirrors were available, since it maintained more than 100 forklifts in operation in New York, and the brochure for the forklift listed rearview mirrors as an optional feature. Unicarriers also established that the forklift was not unreasonably dangerous without backup mirrors and that the plaintiff’s employer was in the best position to balance the benefits and the risks of not having mirrors on the forklift … . * * *

… [T]he Port Authority established, prima facie, that its alleged failure to properly inspect the forklift and its issuance of a Port Authority license plate were governmental functions. Contrary to the plaintiff’s contention, the forklift inspections performed by the Port Authority and the issuance of the license plate were an exercise of the Port Authority’s police power for the protection and safety of the public rather than any authority conferred by a landlord-tenant relationship … . The actions of the Port Authority did not create a special duty toward the plaintiff because the inspections were designed to protect public safety rather than the safety of particular individuals … . Strassburger v Unicarriers Ams. Corps., 2024 NY Slip Op 01742, Second Dept 3-27-24

Practice Point: Here in this forklift accident case, the fact that rear-view mirrors were optional was not a designe defect. The relevant criteria are explained.

Practice Point: Here the Port Authority of NY & NJ, the landlord for JFK Airport, was exercising a governmental function when inspecting the forklift and therefore was immune from suit, criteria explained.

March 27, 2024

Civil Procedure, Negligence, Products Liability

NEW YORK DID NOT HAVE LONG-ARM OR PERSONAL JURISDICTION OVER THE ITALIAN MANUFACTURER OF A HOSE USED AS A COMPONENT IN A DISHWASHER MADE AND SOLD BY A NONPARTY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined New York did not have long-arm or personal jurisdiction over an Italian company which manufactured a hose used as a component in a dishwasher made and sold by a nonparty:

… [T]he defendant was an Italian corporation with its business located in that country. It manufactured, sold, and distributed its goods in Italy, and had no office or agent in New York. The plaintiff failed to show that the defendant purposefully availed itself of the privilege of conducting activities in New York so as to subject it to long-arm jurisdiction pursuant to CPLR 302(a)(1) … . The plaintiff also failed to make a prima facie showing that personal jurisdiction exists under CPLR 302(a)(3).

Since the defendant was not subject to the jurisdiction of New York, the plaintiff’s service of process upon it was not valid (see CPLR 313 …). Economy Premier Assur. Co. v Miflex 2 S.p.A., 2023 NY Slip Op 00303,Second Dept 1-25-23

Practice Point: Here plaintiff did not demonstrate the Italian company which manufactured a component of a dishwasher purposefully availed itself of the privilege of conducting business in New York. Therefore New York did not have long-arm or personal jurisdiction over the Italian company.

January 25, 2023

Consumer Law, Products Liability, Uniform Commercial Code

THE COMPLAINT DID NOT STATE CAUSES OF ACTION FOR BREACH OF IMPLIED WARRANTY FOR A PARTICULAR PURPOSE OR BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined the complaint in this products liability case did not state causes of action for breach of warranty. Plaintiff tried the product, an elastic exercise band, which was on display at the store. He secured one end of the band with his foot. That end slipped out and hit him in the eye:

… To begin, plaintiff did not assert a claim in the SAC [second amended complaint] for breach of implied warranty of fitness for a particular purpose (see UCC 2-315). In any event, such a claim requires allegations that defendants had “reason to know any particular purpose for which the goods” are used and that plaintiff relied on defendants’ “skill or judgment to select or furnish [those] suitable goods” … . The SAC, however, did not allege any particular purpose of the exercise band other than its ordinary purpose for exercise, and there were no allegations that defendants knew or should have known about any particular purpose for which the goods were purchased, nor were there any allegations that plaintiff relied upon defendants’ skill or judgment in selecting those goods … .

Similarly, plaintiff failed to state a claim for breach of the implied warranty of merchantability, which provides under that warranty that goods “are fit for the ordinary purposes for which such goods are used” (UCC 2-314[2][c]). To plead a breach of the implied warranty of merchantability, a plaintiff must allege that goods are defective such that they were not reasonably fit for the ordinary purpose for which they were used, that the defect in the goods was a substantial factor in causing the injury, and that the alleged defect existed at the time the goods left the manufacturer or entity in the line of distribution … . Fiuzzi v Paragon Sporting Goods Co. LLC, 2023 NY Slip Op 00054, First Dept 1-10-23

Practice Point: The complaint in this case did not state causes of action for breach of implied warrant of fitness for purpose of breach of warranty of merchantability, criteria explained.

January 10, 2023

Civil Procedure, Negligence, Products Liability

NEW YORK DOES NOT HAVE GENERAL OR LONG-ARM JURISDICTION OVER A UK CORPORATION WHICH ALLEGEDLY MANUFACTURED A DEFECTIVE PART OF AN EXCAVATOR (FIRST DEPT).

The First Department, reversing Supreme Court, determined the Miller defendants, a UK corporation, were not amenable to general or long-arm jurisdiction in New York. Plaintiff alleged a part (a coupler) made by Miller failed causing an excavator bucket to detach and fall:

General jurisdiction exists over a corporate entity only in the state(s) in which it is incorporated and has its principal place of business … . * * *

Defendants have also failed to establish specific jurisdiction over the Miller parties pursuant to CPLR 302(a)(1), CPLR 302 (a)(3)(i) or CPLR 302 (a)(3)(ii). Although the Miller parties might have placed the coupler involved in plaintiff’s accident into the stream of commerce, and while they tout having a global customer base and business model, the Supreme Court of the United States has made clear that “the ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction … . Cruz v City of New York, 2022 NY Slip Op 06546, First Dept 11-17-22

Practice Point: The ‘fortuitous circumstance’ that a product sold in another state later makes its way into the forum jurisdiction through no marketing or other effort of [the] defendant,” or “‘the mere likelihood that a product will find its way into the forum[,]’ cannot establish the requisite connection between [the] defendant and the forum” to support an exercise of specific personal jurisdiction. Here New York did not have general or long-arm jurisdiction over a UK corporation which manufactured a part on an excavator which allegedly failed causing the excavator bucket to detach.

November 17, 2022