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DRIVER PURCHASED A GOODYEAR TIRE FOR HIS FORD FROM US TIRES, A NEW YORK CORPORATION; THE TIRE ALLEGEDLY FAILED LEADING TO A SERIOUS ACCIDENT IN VIRGINIA; DRIVER SUED US TIRES; US TIRES SUED GOODYEAR AND FORD, BOTH OUT-OF-STATE CORPORATIONS, SEEKING INDEMNIFICATION; NEW YORK HAS LONG-ARM JURISDICTION OVER GOODYEAR AND FORD IN THE US TIRES SUIT (SECOND DEPT). ​

The Second Department, in a full-fledged opinion by Justice Genovesi, determined New York has long-arm jurisdiction over third-party defendants Ford and Goodyear in this suit by a New York corporation, US Tires. US Tires installed a Goodyear tire on a Ford. The tire allegedly failed in Virginia and three passengers died. The plaintiffs, including the driver, sued US Tires. US Tires sued Ford and Goodyear, both out-of-state corporation, seeking indemnification. The issue on appeal was whether Ford and Goodyear had sufficient contacts with New York to support long-arm jurisdiction:

Ford and Goodyear concede that they conducted sufficient activities to have transacted business in New York, thus satisfying the first prong of CPLR 302(a)(1). As to the second prong of CPLR 302(a)(1), US Tires demonstrated that Goodyear’s and Ford’s activities in New York have a sufficient connection with the claims herein. * * *

When all the requirements of CPLR 302 are met, the exercise of personal jurisdiction still must comport with constitutional due process requirements … . * * *

Based on the record before us, the exercise of specific jurisdiction over Ford and Goodyear comports with due process … . … Ford and Goodyear concede that they had sufficient “minimum contacts” with New York. … [T]he only remaining question is whether Ford and Goodyear have met their burden of presenting “a compelling case that the presence of some other considerations would render jurisdiction unreasonable” … . We conclude that Ford and Goodyear have failed to meet this burden. Aybar v US Tires & Wheels of Queens, LLC, 2022 NY Slip Op 06099, Second Dept 11-2-22

Practice Point: This decision includes a comprehensive discussion of general and specific jurisdiction which is worth consulting. In this suit by a New York corporation, US Tires, seeking indemnification from two out-of-state corporations, Ford and Goodyear, the court determined Ford and Goodyear had sufficient contacts with New York to support long-arm jurisdiction. US Tires installed a Goodyear tire on driver’s Ford. The tire allegedly failed in Virginia, causing a serious accident. The driver sued US Tires. US Tires sued Ford and Goodyear.

 

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PLAINTIFF DID NOT PRESENT EXPERT OPINION TO SUPPORT THE ALLEGATION HE INHALED SUFFICIENT AMOUNTS OF ASBESTOS TO HAVE CAUSED HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff in this asbestos-exposure case did not raise a question of fact about whether his exposure to asbestos was sufficient to have caused his cancer. Plaintiff alleged he was exposed to asbestos when he installed defendant ABI’s vinyl floor tiles. Defendant presented evidence from simulation studies and plaintiff offered no expert evidence in opposition:

In Nemeth v Brenntag N. Am. (___ NY3d ___, 2022 NY Slip Op 02769 [2022]), the Court of Appeals, while recognizing its conclusion in Parker v Mobil Oil Corp. (7 NY3d 434 [2006]) that precise qualification of exposure to a toxin is not always required, stated that causation nonetheless requires plaintiff to provide proof of “sufficient exposure to a substance to cause the claimed adverse health effect” … . …

Plaintiff challenges the opinion proffered by ABI’s expert, who relied upon calculations arising from experiments funded by defendants, in determining that decedent was exposed, if at all, to asbestos in amounts similar to those in ambient air, an exposure insufficient to cause cancer. While the reliability of those calculations could pose an issue of credibility, the fact that they were performed by a paid expert does not automatically invalidate their conclusions. Plaintiff offered no expert to counter ABI’s calculation of decedent’s cumulative lifetime exposure, and thus no question of fact was raised as to its validity … . Killian v A.C. & S., Inc., 2022 NY Slip Op 04610, First Dept 7-19-22

Practice Point: Here defendant presented evidence of simulation studies to show that plaintiff’s exposure to asbestos was not sufficient to have caused his cancer and plaintiff presented no expert evidence in opposition. Defendant’s motion for summary judgment should have been granted.

 

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THE PROOF AT TRIAL DID NOT DEMONSTRATE PLAINTIFF INHALED SUFFICIENT LEVELS OF ASBESTOS WHEN USING DEFENDANT’S TALCUM POWDER TO HAVE CAUSED HER MESOTHELIOMA; DEFENDANT’S MOTION TO SET ASIDE THE VERDICT AS A MATTER OF LAW SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined defendant J & J’s motion to set aside the verdict in the asbestos-exposure trial should have been granted. Plaintiffs, as a matter of law, did not demonstrate the exposure to asbestos in defendant’s talcum powder caused plaintiff’s mesothelioma:

At trial, plaintiffs failed, as a matter of law, to carry their burden “to establish sufficient exposure to a substance to cause the claimed adverse health effect” … . To make such a showing, a plaintiff must present expert testimony providing a “scientific expression of the level of exposure to toxins in defendant’s products that was sufficient to have caused the disease” … . Even if it is assumed that plaintiffs presented sufficient evidence to support their mineral expert’s estimate of the amount of asbestos to which plaintiff Donna Olson was exposed each time she used J&J’s talcum powder products, plaintiffs’ medical expert never set forth a scientific expression of the minimum lifetime exposure to asbestos that would have been sufficient to cause mesothelioma, the disease in question … . Thus, the medical expert’s testimony that mesothelioma could have resulted from “a significant exposure above normal background levels” was insufficient. Matter of New York City Asbestos Litig., 2022 NY Slip Op 04611, First Dept 7-19-22

Practice Point: This is another decision in a group of four decisions released on the same day by the First Department finding plaintiff’s expert evidence failed, as a matter of law, to demonstrate plaintiff had inhaled enough asbestos to have caused lung disease.

 

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PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEMONSTRATE PLAINTIFF INHALED ENOUGHT ASBESTOS FIBERS TO CAUSE HIS CANCER; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (FIRST DEPT). ​

The First Department, reversing Supreme Court, determined plaintiff did not present sufficient expert evidence that his exposure to asbestos from defendant ABI’s vinyl floor tiles and sheet flooring caused his cancer. Plaintiff was an electrician and he alleged he worked in close proximity to workers installing ABI’s flooring:

[I]n asbestos exposure and other toxic tort cases, “an opinion on causation should set forth a plaintiff’s exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)” …  As to specific causation, “there must be evidence from which the factfinder can conclude that the plaintiff was exposed to levels of th[e] agent that are known to cause the [relevant] harm” … .

… “[B]ecause there are times that ‘a plaintiff’s exposure to a toxin will be difficult or impossible to quantify by pinpointing an exact numerical value,’ ‘it is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community'” … . …

Plaintiff’s opposition failed to raise any issue of fact as to specific causation. A showing that the decedent “work[ed] in dust laden with asbestos generated from products containing asbestos” accompanied by “expert testimony that dust raised from manipulating asbestos products ‘necessarily’ contains enough asbestos to cause mesothelioma” is not enough … . Plaintiff’s medical expert did point to simulation studies measuring an average level of airborne asbestos as high as 0.27 f/cc during the cutting, sanding, and snapping of asbestos-containing floor tile. He did not, however, provide any correlation between the asbestos fiber levels to which plaintiff may have been exposed and the amount of inhaled asbestos that would have caused decedent’s lung cancer … .Pomponi v A.O. Smith Water Prods. Co., 2022 NY Slip Op 04612, First Dept 7-19-22

Practice Point: The general evidentiary requirements for a plaintiff’s prima facie case in an asbestos-exposure care are clearly explained. Plaintiff’s expert evidence was not sufficient to raise a question of fact about whether the exposure caused his cancer.

 

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WHETHER PLAINTIFF INHALED ENOUGH ASBESTOS TO CAUSE HIS CANCER WAS THE SUBJECT OF COMPETING SIMULATION STUDIES; PLAINTIFF’S EXPERT EVIDENCE WAS NOT SUFFICIENT TO DEFEAT DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined defendant ABI’s motion for summary judgment in this asbestos-exposure case should have been granted. Plaintiff sold vinyl floor tiles made by ABI. Plaintiff alleged when he cut, manipulated and broke the tiles in demonstrations for customers, he inhaled asbestos fibers which were embedded in the vinyl tiles. The Fist Department found the expert evidence did not demonstrate plaintiff was exposed to sufficient levels of asbestos to cause lung cancer:

ABI had the burden to tender sufficient evidence to demonstrate the absence of any material issues of fact as to causation … . Once this burden was met, it would fall to plaintiff to produce evidentiary proof, in admissible form, establishing that there were disputed material issues of fact … . * * *

The dispute based upon the competing simulation studies about whether the decedent was exposed to asbestos in an amount that exceeded ambient levels typically found in non-occupational settings is not enough to avoid summary judgment. … [S]imply showing that exposures to a toxin were “‘excessive'” or “‘far more'” a certain threshold (ambient) is not enough … . … [P]laintiff had the “‘difficult, if not impossible,'” task of establishing that his decedent had a sufficient exposure to asbestos to have caused his lung cancer … . [Plaintiff’s expert] does not provide any reliable correlation between the presence of asbestos fiber concentrations found in the studies and how much in haled asbestos would have caused lung cancer generally and the decedent’s lung cancer in particular. Dyer v Amchem Prods. Inc., 2022 NY Slip Op 04609, First Dept 7-19-22

Practice Point: This decision includes a useful discussion of the proof requirements in an asbestos-exposure case. The decision characterized the plaintiff’s task of demonstrating sufficient exposure to cause cancer as “difficult, if not impossible.”

 

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PLAINTIFF, A TEXAS RESIDENT WHO WAS A FLIGHT ATTENDANT FOR 30 YEARS WITH MONTHLY STAY-OVERS IN NEW YORK, DEMONSTRATED NEW YORK HAD LONG-ARM JURISDICTION OVER THE NEW JERSEY COMPANY WHICH MANUFACTURED AND DISTRIBUTED TALCUM POWDER PLAINTIFF USED; THE TALCUM POWDER ALLEGEDLY CAUSED PLAINTIFF’S MESOTHELIOMA (FIRST DEPT).

The First Department determined New York had specific long-arm jurisdiction of defendant Shulton, the manufacturer and distributor of talcum powder alleged to have cause plaintiff’s peritoneal mesothelioma. Plaintiff (English) was a flight attendant for 30 years who used the talcum powder when she stayed in New York. Shulton has its principal place of business in New Jersey but has an office in New York and markets the product in New York:

English, a Texas resident, was employed as a flight attendant for 33 years, from 1966 to 1999. During a substantial part of that time, she used Desert Flower on a daily basis after showering. From 1966 to 1984, English was regularly assigned to flights into New York and flew into this state two to four times a month. She usually remained in New York on two- or three-day layovers. When English travelled, she packed Desert Flower in her luggage, so she would have it available for use when she showered. There is no claim that the Desert Flower English used in New York was purchased in New York.

Shulton is incorporated in New Jersey, where it had its principal place of business during the time that English claims to have used Desert Flower. Shulton never manufactured Desert Flower in New York, and in the mid-1970s the manufacture of its talc products shifted from Tennessee to New Jersey. Desert Flower was marketed nationally, including in New York. During the relevant period of time, Shulton maintained a New York office from which it conducted its marketing activities for its Cosmetics and Toiletries Division. The New York office was also headquarters for its International Division. * * * Shulton’s maintenance of its own New York office satisfies the first prong under CPLR 302(a)(1). * * * Desert Flower was marketed and sold nationally, and English used Desert Flower when she travelled to and while she stayed in New York. Shulton’s activities and contacts with New York and the allegedly hazardous talcum powder used by English are sufficient to support an assertion of specific jurisdiction over Shulton…. . English v Avon Prods., Inc., 2022 NY Slip Op 03571, First Dept 6-2-22

Practice Point: Even though plaintiff was a Texas resident and the company she was suing was based in New Jersey, she was able to sue using New York courts. Plaintiff was a flight attendant for 30 years with monthly stay-overs in New York. Defendant had an office in New York and marketed the talcum powder which allegedly cause plaintiff’s mesothelioma nationwide.

 

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IN THIS PRODUCTS LIABILITY ACTION WHERE A ROUTER SEVERED PLAINTIFF’S THUMB, THE FAILURE-TO-WARN CAUSE OF ACTION BASED ON THE MANUAL SHOULD HAVE BEEN DISMISSED BECAUSE PLANTIFF NEVER READ IT; THE GENERALIZED FAILURE-TO-WARN CAUSE OF ACTION PROPERLY SURVIVED SUMMARY JUDGMENT; DISAGREEING WITH THE SECOND DEPARTMENT, THE DESIGN-DEFECT CAUSE OF ACTION BASED ON THE LACK OF AN INTERLOCK DEVICE PROPERLY SURVIVED SUMMARY JUDGMENT (FIRST DEPT).

The First Department, modifying Supreme Court in this products liability case where plaintiff severed his thumb using a router, determined: (1) the failure-to-warn cause of action based upon the product manual should have been dismissed because plaintiff testified he never read it; (2) the generalized failure-to-warn cause of cause properly survived summary judgment; and (3) the design defect cause of action alleging the router should have had an interlock device which would shut it down properly survived summary judgment. Whether plaintiff was familiar with the risk of amputation such that the defendant was relieved of the duty to warn is a question of fact. And whether the lack of an interlock device is a design defect is a question of fact (disagreeing with decisions from the Second Department):

… [T]he record contains evidence that plaintiff had knowledge of power tools other than the router and the general hazards associated with cutting devices. Plaintiff also had used the router on one prior occasion at the premises before the accident. However, it is for a jury, not the court, to determine whether, based on the evidence and testimony presented, plaintiff had sufficient knowledge of the specific hazards from the use of the router to relieve defendants of their duty to warn of them. Further, whether the router presented an open and obvious danger is also a jury issue. * * *

The branch of defendants’ motion for summary judgment dismissing the design defect claim based on the lack of an interlock was also properly denied. We recognize that the Second Department has held that such a claim is per se unviable in Chavez v Delta Intl. Mach. Corp. (130 AD3d 667 [2d Dept 2015]), Patino v Lockformer Co. (303 AD2d 731 [2d Dept 2003]), and Giunta v Delta Intl. Mach. (300 AD2d 350 [2d Dept 2002]). Chavez (at 669), the most recent of these cases, cited Patino and Giunta for this proposition, and in Giunta (at 351), the Second Department held that a theory of liability that a “table saw should have been designed with an interlock which would have prevented the motor from starting if the blade guard was off. . . . was explicitly rejected as a matter of law in David v Makita U.S.A. (233 AD2d 145 [1st Dept 1996]), and implicitly rejected in Banks v Makita, U.S.A. (226 AD2d 659 [2d Dept 1996], lv denied 89 NY2d 805 [1996]).”

However, we read neither David nor Banks as supporting Giunta’s conclusion. Vasquez v Ridge Tool Pattern Co., 2022 NY Slip Op 03488, First Dept 5-31-22

Practice Point: In this products liability case where plaintiff lost a thumb using a router, there was a question of fact whether plaintiff was familiar enough with the danger of amputation that the defendant should be relieved of liability for the failure to warn. Here the First Department, disagreeing with the Second Department, determined the absence of an interlock device which would shut the router down raised a question of fact on the design-defect cause of action.

 

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ALTHOUGH PLAINTIFF, WHO WAS INJURED WHILE REPAIRING AN ESCALATOR, COULD NOT IDENTIFY THE CAUSE OF THE ESCALATOR’S SUDDEN START-UP, THE MOTION TO COMPEL HIM TO SUPPLEMENT HIS ANSWERS TO INTERROGATORIES WAS PROPERLY DENIED; PRODUCTS LIABILITY ACTIONS CAN BE PROVEN BY CIRCUMSTANTIAL EVIDENCE; AT THIS STAGE PLAINTIFF CAN TESTIFY UNDER OATH THAT HE DOES NOT KNOW THE CAUSE OF THE UNEXPECTED START-UP (FIRST DEPT).

The First Department determined the motion to compel plaintiff to supplement his interrogatories in this products liability case was properly denied. Plaintiff alleged the escalator he was working on started up without warning severely injured his leg. The fact that plaintiff can not identify the cause of the unexpected start-up did not require supplementing his interrogatories as he can so state “under oath:”

“It is well settled that a products liability cause of action may be proven by circumstantial evidence, and thus, a plaintiff need not identify a specific product defect” … . In the absence of evidence identifying a specific defect “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 [the] defendants” … . If a “plaintiff is unable to prove both elements, ‘a jury may not infer that the harm was caused by a defective product unless [the] plaintiff offers competent evidence identifying a specific flaw'” …

In his interrogatory responses, plaintiff identified several alleged design defects, including the design of the pit, that contributed to his injury. However, he did not identify a cause for the unexpected start up of the escalator. … Presently, plaintiff asserts that he cannot pinpoint the defective component that allowed the escalator’s machinery to begin moving without warning. In an instance where plaintiff “presently lacks the knowledge” to specifically identify the nature of the defect, plaintiff can testify to that “under oath” … . … [I]f he acquires the pertinent information he would be under an obligation to promptly supplement his answers to the interrogatories at issue … . Berkovich v Judlau Contr., Inc., 2022 NY Slip Op 01733, First Dept 3-15-22

Practice Point: Products liability actions can be proven by circumstantial evidence. If a plaintiff does not know the cause of a product malfunction (here, an escalator which allegedly started running unexpectedly) at the discovery stage, the plaintiff can testify to that fact under oath.

 

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DEFENDANT, BASED ON ITS STATUS AS BAILOR OF THE MACHINE WHICH ALLEGEDLY INJURED PLAINTIFF, MAY BE LIABLE UNDER BREACH OF WARRANTY AND STRICT PRODUCTS LIABILITY CAUSES OF ACTION (THIRD DEPT).

The Third Department, reversing (modifying) Supreme Court, in a decisions addressing many issues not summarized here, noted that breach of warranty and strict products liability causes of action can arise from a bailment. Here plaintiff alleged she was injured by a machine (called a “table”) and defendant was the “owner” of the table by virtue of its status as bailor:

In light of … material issues of fact as to whether defendant owned and/or was bailor of the table, we find that Supreme Court erred in granting defendant’s motion for summary judgment as to the breach of implied warranty cause of action. As “[t]here is, in fact, no substantive distinction between [the theories of breach of implied warranty and strict products liability] in the context of this case” … , we reach this same conclusion as to the strict products liability cause of action. Reese v Raymond Corp., 2022 NY Slip Op 01077, Third Dept 2-17-22

 

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DEFENDANT MANUFACTURER AND RETAILER SHOULD NOT HAVE BEEN AWARDED SUMMARY JUDGMENT ON THE DESIGN DEFECT, FAILURE TO WARN AND IMPLIED WARRANTY CAUSES OF ACTION; PLAINTIFF WAS INJURED USING A “HOVERBOARD” (SECOND DEPT).

The Second Department, reversing Supreme Court, determined summary judgment should not have been awarded to the manufacturer and retailer of a “hoverboard” on the products liability (design defect), failure to warn and implied warranty causes of action. Plaintiff alleged she was using the hoverboard in accordance with the instructions and was injured. The expert affidavit provided by the defendants was conclusory and did not eliminate questions of fact on the design defect cause of action:

A defendant moving for summary judgment dismissing a design defect cause of action must establish, prima facie, that the subject product was reasonably safe for its intended use or that the plaintiff’s actions constituted the sole proximate cause of his or her injuries … .

The defendants’ expert, in his affidavit, opined in mere conclusory fashion that the hoverboard was not defectively designed, without providing any explanation of the hoverboard’s design, or any discussion of industry standards or costs. Nor did the expert state whether the defendants had received complaints about any of the other hoverboards they had sold. The conclusory affidavit was insufficient to affirmatively demonstrate, prima facie, that the hoverboard was reasonably safe for its intended use … . LaScala v QVC, 2022 NY Slip Op 00305. Second Dept 1-19-22

 

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