New York Law Review

Tag: products liability

  • Amatulli v. Seaspray Sharkline, Inc., 77 N.Y.2d 533 (1991): Manufacturer Liability for Altered Products

    Amatulli v. Seaspray Sharkline, Inc., 77 N.Y.2d 533 (1991)

    A manufacturer is not liable for injuries resulting from substantial alterations or modifications to its product by a third party that render the product defective or unsafe, particularly when the product is used in a manner not intended or reasonably foreseeable by the manufacturer.

    Summary

    Vincent Amatulli, Jr. sustained injuries diving into an above-ground swimming pool that had been improperly installed partially in the ground. He sued the manufacturer, distributor, and homeowners. The New York Court of Appeals held that the manufacturer, Seaspray Sharkline, Inc., was not liable because the in-ground installation was a substantial alteration that created a new potential danger. The court affirmed the denial of summary judgment for the homeowners and distributor, finding triable issues of fact as to their negligence in the installation. This case highlights the limits of manufacturer liability when products are significantly altered after sale.

    Facts

    Seaspray Sharkline, Inc. manufactured an above-ground swimming pool designed for recreational swimming. The pool came with explicit warnings against diving and instructions for above-ground installation. The Susis purchased the pool through Brothers Three, Inc., and installed it with two feet of the pool sunk into the ground, with a deck built around it. This created the appearance of an in-ground pool. Vincent Amatulli, Jr., an experienced swimmer, dove headfirst into the pool, misjudged the depth, and sustained serious injuries. He was aware the pool appeared shallow around the sides, but thought it sloped downward towards the center.

    Procedural History

    Amatulli and his mother sued the Susis (pool owners), Seaspray (manufacturer), Brothers Three (distributor), and Delhi Construction Corp (incorrectly believed to be the installer). The Supreme Court granted summary judgment to Seaspray, dismissing the complaint and cross-claims against it. The Appellate Division affirmed this decision and also affirmed the denial of summary judgment for the Susis and Brothers Three. The plaintiffs, Susis, and Brothers Three appealed to the New York Court of Appeals, which affirmed the Appellate Division’s order.

    Issue(s)

    1. Whether Seaspray, the manufacturer, is liable for the plaintiff’s injuries under a theory of strict products liability, given that the pool was installed in a manner contrary to the manufacturer’s instructions and warnings.
    2. Whether the conduct of Vincent Amatulli, Jr., in diving headfirst into a pool he knew or should have known was shallow, constitutes the sole proximate cause of his injuries, thus absolving the Susis and Brothers Three of liability.

    Holding

    1. No, because the in-ground installation constituted a substantial alteration of the product, creating a new potential danger not attributable to the manufacturer’s original design or warnings.
    2. No, because factual issues exist as to whether the in-ground installation, directed by the Susis and advised by Brothers Three, contributed to the illusion of sufficient depth for diving, precluding a determination that Amatulli’s conduct was the sole proximate cause of his injuries as a matter of law.

    Court’s Reasoning

    The court reasoned that Seaspray designed and sold a safe product for its intended use as an above-ground pool, providing clear warnings against diving. The pool’s in-ground installation, contrary to Seaspray’s instructions, constituted a substantial alteration. “Installing the pool in the ground and surrounding it with a deck transformed its configuration in such manner as to obscure its four-foot depth, which would have been readily apparent as a warning against diving had the pool been installed above ground.” This alteration created a new potential danger, absolving Seaspray of liability. The court rejected the argument that Seaspray should have foreseen and warned against in-ground installation, finding the expert’s assertions about industry knowledge conclusory and unsupported. Regarding the Susis and Brothers Three, the court found triable issues of fact as to whether their actions in installing the pool in-ground contributed to the illusion of depth, making it inappropriate to conclude that Amatulli’s conduct was the sole proximate cause of his injuries. The court distinguished this case from prior cases where the plaintiff’s conduct was deemed the sole proximate cause as a matter of law, emphasizing the factual dispute over the misleading appearance of the pool’s depth. As the court noted, summary judgment is inappropriate when “ ‘ “only one [legal] conclusion may be drawn from the established facts” ’ ”.

  • Enright v. Eli Lilly & Co., 77 N.Y.2d 377 (1991): Limits on DES Manufacturer Liability to Grandchildren

    Enright v. Eli Lilly & Co., 77 N.Y.2d 377 (1991)

    A manufacturer’s liability for injuries caused by a drug does not extend to a “third generation” plaintiff (grandchildren) whose injuries allegedly resulted from their mother’s in utero exposure to the drug, due to policy considerations regarding the limits of liability and potential for limitless claims.

    Summary

    Karen Enright, born prematurely with cerebral palsy, sued DES manufacturers, claiming her injuries stemmed from her maternal grandmother’s ingestion of DES during pregnancy with Karen’s mother, Patricia. Patricia allegedly suffered reproductive system abnormalities due to DES exposure, leading to Karen’s premature birth. The New York Court of Appeals held that the manufacturers’ liability did not extend to Karen. The court reasoned that allowing such claims would expand tort liability beyond manageable limits and create the potential for limitless claims across generations, echoing concerns raised in Albala v. City of New York. The court emphasized that while DES litigation has received special consideration, it doesn’t justify abandoning traditional limits on tort liability.

    Facts

    Karen Enright’s maternal grandmother ingested DES during pregnancy in 1960.
    Patricia Enright, Karen’s mother, was born with reproductive system abnormalities allegedly due to her in utero DES exposure.
    Patricia experienced multiple miscarriages, and Karen was born prematurely in 1981, suffering from cerebral palsy and other disabilities.
    Karen and her parents sued several DES manufacturers, claiming Karen’s injuries resulted from her grandmother’s DES ingestion.

    Procedural History

    The Supreme Court dismissed Karen’s claims, relying on Albala v. City of New York, which limited preconception tort liability.
    The Appellate Division modified, reinstating Karen’s strict products liability claim, arguing public policy favored a remedy for DES victims.
    The Court of Appeals granted leave to appeal, certifying the question of whether the Appellate Division erred in reinstating the strict products liability claim.

    Issue(s)

    Whether a drug manufacturer’s liability in a strict products liability action extends to a “third generation” plaintiff whose injuries are allegedly caused by their mother’s in utero exposure to the drug ingested by the grandmother.

    Holding

    No, because extending liability to “third generation” plaintiffs would expand traditional tort concepts beyond manageable bounds, creating the potential for limitless claims and raising concerns about speculative and remote damages, as previously established in Albala v. City of New York.

    Court’s Reasoning

    The court relied heavily on its decision in Albala v. City of New York, which declined to recognize a cause of action for a child injured due to a preconception tort against the mother. The court found no meaningful distinction between Albala (medical malpractice) and the current case (DES exposure) to justify a different rule.
    While acknowledging legislative and judicial solicitude for DES victims (e.g., CPLR 214-c and Hymowitz v. Lilly & Co.), the court emphasized that these measures addressed unique procedural barriers in DES litigation, not an intent to create a favored class of plaintiffs.
    The court rejected the argument that strict products liability warranted a different outcome than negligence, stating that the concerns about limitless liability and artificial boundaries remained compelling. The court noted: “For all we know, the rippling effects of DES exposure may extend for generations. It is our duty to confine liability within manageable limits”.
    The court also considered the potential for overdeterrence, which could discourage pharmaceutical research and development, and the role of the FDA in regulating drug safety.
    Liability was limited to those who ingested DES or were exposed to it in utero, balancing the need for redress with the need to confine liability within manageable limits. The court quoted Tobin v. Grossman, stating, “It is our duty to confine liability within manageable limits”.

  • Home Ins. Co. v. American Home Products Corp., 75 N.Y.2d 196 (1990): Insurance Coverage for Out-of-State Punitive Damages

    Home Ins. Co. v. American Home Products Corp. , 75 N.Y.2d 196 (1990)

    New York public policy generally prohibits insurance indemnification for punitive damages awards, even when the underlying conduct is not intentional, and this policy applies to punitive damage awards rendered in other states when a New York insured seeks to enforce coverage against a New York insurer.

    Summary

    The Home Insurance Company sought a declaratory judgment that it was not obligated to indemnify American Home Products (AHP) for punitive damages awarded in an Illinois case, where AHP was found liable for failing to warn about the risks of its drug, aminophylline. The Second Circuit certified the question of whether New York law would require the insurer to reimburse the insured for these out-of-state punitive damages. The New York Court of Appeals held that indemnification would violate New York public policy, as punitive damages are intended to punish and deter, and allowing insurance coverage would undermine this purpose.

    Facts

    AHP, through its subsidiary Wyeth Laboratories, manufactured aminophylline. Marcus Batteast, a two-year-old, suffered severe injuries from the drug due to AHP’s failure to provide adequate warnings about its risks. An Illinois court awarded Batteast $9.2 million in compensatory and $13 million in punitive damages. The Illinois appellate court affirmed, finding AHP was aware of the risks but failed to warn the medical profession. Home Insurance, AHP’s excess liability insurer, sought a declaration in New York that it was not obligated to cover the punitive damages.

    Procedural History

    Home Insurance initiated a declaratory judgment action in New York State Supreme Court. The case was removed to the Federal District Court, which ruled that Home was liable for the punitive damages. Home appealed to the Second Circuit Court of Appeals, which then certified the question of New York law to the New York Court of Appeals.

    Issue(s)

    Whether New York public policy requires an insurer to reimburse an insured for punitive damages awarded against the insured in an out-of-state judgment.

    Holding

    No, because requiring indemnification for punitive damages would be contrary to New York’s public policy of punishing and deterring wrongful conduct.

    Court’s Reasoning

    The court emphasized that New York public policy generally bars insurance coverage for punitive damages, whether based on intentional actions or gross negligence. The rationale is that allowing insurance to cover punitive damages would defeat their purpose of punishment and deterrence. The court found no significant difference between New York and Illinois law regarding punitive damages, both aiming to punish the defendant and deter others. The court stated, “[T]o allow it would defeat ‘the purpose of punitive damages, which is to punish and to deter others from acting similarly, and that allowing coverage serves no useful purpose since such damages are a windfall for the plaintiff who, by hypothesis, has been made whole by the award of compensatory damages.’” The court also rejected AHP’s argument that the court should conduct a de novo review of the Illinois trial record, emphasizing that it must respect the judicial proceedings of sister states. While punitive damages can be awarded in product liability cases based on failure to warn, indemnification for such damages would still offend New York’s public policy against allowing wrongdoers to escape punishment through insurance coverage. The court noted, “It is the punitive nature of the award coupled with the fact that a New York insured seeks to enforce it in New York against a New York insurer which calls for the application of New York public policy.”

  • Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487 (1989): Market Share Liability for DES Manufacturers

    73 N.Y.2d 487 (1989)

    When plaintiffs cannot identify the manufacturer of a fungible product (DES) that caused their injury, liability is apportioned among manufacturers based on their national market share at the time of exposure, and defendants cannot exculpate themselves by proving they did not manufacture the specific dose ingested by the plaintiff’s mother.

    Summary

    This landmark case addresses liability for injuries caused by diethylstilbestrol (DES), a drug administered to pregnant women. Plaintiffs, unable to identify the specific manufacturer of the DES ingested by their mothers, sued multiple manufacturers. The New York Court of Appeals adopted a “national market share” theory, holding that liability should be apportioned based on each manufacturer’s share of the national DES market at the time of the plaintiff’s mother’s ingestion. Critically, the court rejected the possibility of exculpation; a manufacturer could not escape liability even if it proved it did not produce the specific pills ingested. This decision balances the need to provide redress for injured plaintiffs with the difficulties of proving causation in DES cases.

    Facts

    Multiple plaintiffs brought suit against numerous drug manufacturers, alleging injuries resulting from their mothers’ ingestion of DES during pregnancy. The plaintiffs were unable to identify which specific company manufactured the DES their mothers took, a common problem due to the generic nature of the drug and the passage of time.
    DES was prescribed to pregnant women to prevent miscarriages, but was later found to cause various health problems in their daughters.
    Traditional tort law requires plaintiffs to prove that a specific defendant’s actions caused their injuries. This requirement posed a significant obstacle for DES plaintiffs.
    The plaintiffs sued multiple DES manufacturers, seeking to hold them liable based on theories of concerted action, alternative liability, and market share liability.

    Procedural History

    Several lower court cases involving DES-related injuries were consolidated for appeal.
    The Appellate Division certified questions to the New York Court of Appeals regarding the appropriate theory of liability to apply in DES cases.
    The Court of Appeals granted leave to appeal to address the novel issues presented by the DES litigation.

    Issue(s)

    Whether a DES manufacturer can be held liable for a plaintiff’s injuries even if the plaintiff cannot identify that manufacturer as the specific producer of the DES ingested by the plaintiff’s mother.
    Whether, under a market share theory of liability, a DES manufacturer should be permitted to exculpate itself by proving that it did not manufacture the specific DES ingested by the plaintiff’s mother.
    What constitutes the appropriate market (national vs. local) for determining market share.
    Whether joint and several liability or several liability should apply to DES manufacturers held liable under a market share theory.

    Holding

    Yes, because under a market share theory, liability is apportioned based on a manufacturer’s overall risk contribution to the market, not on proof of direct causation in each individual case.
    No, because exculpation would undermine the goal of providing a remedy for injured plaintiffs and would be inconsistent with the risk-based rationale of market share liability.
    The relevant market is the national market, because focusing on a national market provides a more accurate reflection of the overall risk created by each manufacturer.
    Several liability applies, because joint and several liability would unfairly penalize manufacturers with a small market share.

    Court’s Reasoning

    The court rejected traditional tort principles requiring identification of the specific tortfeasor because it recognized the unique difficulties faced by DES plaintiffs in proving causation. The court stated: “[W]e are presented with aHelp us understand a problem that has caused great suffering, and which has no clear solution under traditional tort law principles.”
    The court adopted a market share theory, reasoning that each manufacturer contributed to the overall risk of injury by marketing DES, and therefore should bear a portion of the responsibility for the resulting harm. The court reasoned that “the wrongdoers are better able to bear the cost of the injury than are the innocent victims”.
    The court explicitly rejected allowing manufacturers to exculpate themselves, finding that such a rule would “frustrate” the goal of providing a remedy. According to the court, this is because “…the ever-present possibility of exoneration would undermine the efficacy of the remedy.”
    By adopting a national market share, the court aimed to achieve a more equitable apportionment of liability, reflecting the overall risk created by each manufacturer’s conduct across the entire country. The court stated that “…over the course of many years, each company’s share of the market will approximate its responsibility for the risk of injury to the population”.
    The court also rejected the imposition of joint and several liability, concluding that it would unfairly burden smaller manufacturers with a disproportionate share of the damages. The court decided that “…each defendant’s liability for injuries would be several only, and would be based on its share of the national market.”
    A dissenting opinion, argued that precluding exculpation was inconsistent with traditional tort principles of causation and fairness.

  • Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579 (1988): Manufacturer Liability for Defective Design After Part Replacement

    70 N.Y.2d 579 (1988)

    A manufacturer can be held liable for a design defect even after a part has been replaced if the replacement part maintains the same defective design as the original, and the manufacturer foresaw or should have foreseen such a replacement.

    Summary

    Joan Sage, an airline employee, was injured by a defectively designed ladder hanger in an aircraft cargo compartment. The hanger, initially designed by Fairchild-Swearingen Corp. (Fairchild) but replaced by a similar part made by Sage’s employer, caused a severe finger injury. The court addressed whether Fairchild could be liable for the defective design despite the part replacement. The Court of Appeals held that Fairchild could be liable because the replacement part maintained the original defective design, and Fairchild had foreseen the likelihood of such replacements. The case was remitted for a new trial due to concerns about the weight of the evidence supporting the verdict.

    Facts

    Joan Sage worked for Commuter Airlines, Inc. While unloading baggage from a Commuter aircraft manufactured by Fairchild, Sage injured her finger on a ladder hanger attached to the cargo compartment doorway. The hanger was a replacement part made by Commuter employees. The original hanger design included a plastic grommet to prevent metal-on-metal scraping, but the replacement lacked this feature. The hanger’s “u” or “v” shape and its location on the doorframe presented a hazard to personnel entering and exiting the cargo area. Fairchild’s representatives acknowledged that purchasers would likely fabricate replacements rather than order them from the manufacturer.

    Procedural History

    Sage sued Fairchild on negligence and strict products liability theories. Fairchild impleaded Commuter, alleging negligence and failure to provide a safe workplace. The jury found for Sage, attributing 75% of the fault to Fairchild and 25% to Commuter. The Appellate Division reversed and dismissed the complaint, citing Robinson v. Reed-Prentice Div., reasoning that Fairchild didn’t manufacture the specific hanger involved in the injury. The Court of Appeals reversed the Appellate Division’s order and reinstated the complaint, but remitted the case for a new trial due to the Appellate Division’s determination that the verdict was against the weight of the evidence.

    Issue(s)

    Whether a manufacturer can be held liable for a design defect in a product when the injury is caused by a replacement part not manufactured by the original manufacturer, but which replicates the original defective design.

    Holding

    Yes, because the manufacturer’s defective design was the proximate cause of the injury, and the manufacturer could have foreseen that the part would be replaced with a similar design.

    Court’s Reasoning

    The court reasoned that imposing strict liability on manufacturers is based on public policy, which holds sellers responsible for injuries caused by their products. A product can be defective due to a manufacturing flaw, design defect, or inadequate warnings. This case concerned a design defect. Unlike Robinson v. Reed-Prentice Div., where a purchaser substantially altered a machine by removing safety devices, here the replacement part maintained the original defective design. The jury found the original hanger design defective because its utility was outweighed by the dangers it created. The court emphasized that the manufacturer knew or should have known that the hanger might be copied and replaced with a similar design. Allowing the manufacturer to escape liability would encourage the design of flimsy parts, knowing that liability would cease once the part was replaced. The court stated, “[T]o insulate a manufacturer under such circumstances would allow it to escape liability for designing flimsy parts secure in the knowledge that once the part breaks and is replaced, it will no longer be liable.” The court found that Sage presented a valid claim and established a prima facie case as the jury had a valid line of reasoning and permissible inferences that could lead rational people to the jury’s verdict. The court ordered a new trial because the Appellate Division found the jury’s verdict against the weight of the evidence.

  • Rainbow v. Swisher, 72 N.Y.2d 704 (1988): Admissibility of Post-Manufacture Modifications in Product Liability Cases

    Rainbow v. Swisher, 72 N.Y.2d 704 (1988)

    Evidence of a manufacturer’s post-manufacture, pre-accident modification is generally inadmissible to establish fault in a strict products liability case based on design defect or failure to warn, unless it demonstrates feasibility of alternative designs or the manufacturer’s failure to warn of a known risk.

    Summary

    This case addresses the admissibility of evidence regarding modifications made to a product after its manufacture but before an accident occurs, in the context of a products liability claim. Rainbow sued Swisher, alleging injuries from a defectively designed insect repellent and failure to adequately warn of its dangers. The Court of Appeals held that admitting evidence of a post-manufacture label change was reversible error, as it did not fall within the exceptions for demonstrating the feasibility of alternative designs or proving failure to warn of a known risk. The court also clarified the standard for determining product defect, requiring a balancing of risks versus utility and affordability.

    Facts

    One of the plaintiffs was injured after being sprayed with insect repellent manufactured by Swisher. The plaintiffs claimed the ethyl alcohol fumes from the repellent ignited due to static electricity from a television. They alleged defective design and inadequate warnings. Critically, the trial court admitted evidence that Swisher changed the warning label on its insect repellent cans after manufacturing the can involved in the accident but before the accident occurred itself. There was no evidence presented that Swisher knew of a defect prior to the accident.

    Procedural History

    The trial court admitted evidence of the changed warning label over the defendant’s objection. The jury was instructed on “products defect.” The Appellate Division affirmed the trial court’s decision. Swisher appealed to the New York Court of Appeals.

    Issue(s)

    1. Whether evidence of a manufacturer’s post-manufacture, pre-accident modification is admissible to establish fault in a strict products liability case based upon a defect in design or failure to warn.
    2. Whether the trial court’s jury instruction on “products defect” was proper.

    Holding

    1. Yes, because evidence of post-manufacture modifications is generally inadmissible unless it falls within specific exceptions, such as demonstrating the feasibility of alternative designs or proving failure to warn of a known risk, neither of which applied here.
    2. No, because the jury charge failed to instruct the jury to balance the product’s risks against its utility, affordability, and the risks, utility, and costs of alternative designs.

    Court’s Reasoning

    The Court of Appeals reversed the Appellate Division’s order, emphasizing the inadmissibility of post-manufacture modifications as evidence of fault. Citing Cover v Cohen, 61 NY2d 261 (1984), the court reiterated that such evidence is only admissible in limited circumstances. The court found that feasibility was not in issue, as modifying a warning label does not present the same challenges as complex design changes. The court also stated that the modified warning label could not be admitted as evidence of a continuing duty to warn because there was no evidence Swisher was aware of a danger or defect before the accident; the modification itself is not an admission of prior knowledge of an inadequate warning. The court referenced precedent requiring consideration of risk versus utility. The court stated, “[T]he charge failed to apprise the jury that, in order to determine whether defendant’s product as marketed was reasonably safe for its intended use, the product’s risks must be balanced against its utility and affordability, and against the risks, utility and costs of alternatively designed products”.

  • Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328 (1986): Expert Testimony Required for Amnesia Claim in Negligence Cases

    Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328 (1986)

    In a negligence action where the plaintiff claims amnesia due to the defendant’s actions, expert testimony is required to establish the amnesia and its causal relationship to the defendant’s fault before the jury can apply a lesser degree of proof in evaluating the plaintiff’s claim.

    Summary

    Sawyer sued Dreis & Krump for injuries sustained while operating a press brake. Sawyer claimed he lost his memory of the incident. The trial court instructed the jury on the “amnesia rule,” allowing them to apply a lesser burden of proof. The Court of Appeals reversed a judgment for Sawyer, holding that expert testimony is required to prove the amnesia and its causal link to the defendant’s actions. The court also addressed the admissibility of prior accident evidence and the appropriate jury charge regarding industry safety standards (ANSI standards), finding errors in both.

    Facts

    Sawyer, an experienced press brake operator, was injured while working on a machine manufactured by Dreis & Krump. He claimed he lost his memory of the events leading to the injury. Sawyer contended he reached under the ram to secure slipping metal and accidentally activated the machine. Dreis & Krump argued Sawyer was operating the machine improperly, causing the metal to slip and his hand to be pulled under the ram. The set-up procedure required the use of L-shaped stops at the back of the bed to secure the metal but Dreis & Krump contended that Sawyer set the stops improperly, without using a scrap piece of metal to measure. Plaintiff’s foreman heard metal fall, and found the plaintiff conscious but quiet, saying, “I finally done it.”

    Procedural History

    Sawyer sued Dreis & Krump, who then impleaded Sawyer’s employer, Cambridge Filter Corporation. The jury found in favor of Sawyer, apportioning fault equally between Dreis & Krump and Cambridge Filter. The Appellate Division affirmed. The Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court erred in submitting the question of Sawyer’s amnesia to the jury without expert testimony establishing the condition or causally relating it to the accident.
    2. Whether the trial court erred in permitting Sawyer’s engineering expert to testify how the accident happened.
    3. Whether the trial court erred in allowing Sawyer’s cross-examination of Dreis & Krump’s witnesses about other accidents with the press.
    4. Whether the trial court erred in failing to properly instruct the jury on the weight to be accorded industry safety standards (ANSI).

    Holding

    1. Yes, because amnesia is a medical condition beyond the understanding of laymen, and expert testimony is required to prove the condition by clear and convincing evidence.
    2. Yes, because the expert’s opinion was based on facts not established by the evidence.
    3. Yes, because Sawyer failed to establish that the prior accidents were similar to his.
    4. Yes, because the ANSI standards were not conclusive on the issue of negligence, and the jury should have been so instructed.

    Court’s Reasoning

    The Court of Appeals held that while a plaintiff with amnesia is held to a lesser degree of proof, they must still establish a prima facie case, and the jury cannot presume due care. The court emphasized that “[b]ecause loss of memory is easily feigned, before plaintiff may receive the benefit of the rule, he must prove by clear and convincing evidence that defendant’s acts were a substantial factor in causing his condition.” The court reasoned that amnesia, like most medical conditions, requires expert evidence to establish its existence and causal relationship to the defendant’s actions. Without such evidence, a jury of laypersons cannot adequately evaluate the effects of trauma or the symptoms verifying the loss of memory. The court cited Koehler v Schwartz, 48 NY2d 807 as precedent. The Court determined that the expert testimony was required to determine if the loss of memory was “real and not feigned”.

    The court also found the expert’s testimony on how the accident occurred was speculative and lacked a proper factual foundation, noting the expert said that the metal slipped and plaintiff reached for it reflexively and stepped on the pedal, but the expert opinion was “based upon facts which were not established by the evidence”. The court found the evidence about prior accidents was improperly admitted because the plaintiff did not show the prior accidents were similar.

    Regarding the ANSI standards, the Court cited Trimarco v Klein, 56 NY2d 98, holding that industry standards can be considered as “some evidence of negligence if it first found that the standards set forth in the booklet represented the general custom or usage in the industry,” but also that the jury should have been instructed that such standards were not conclusive.

  • Rosado v. Proctor & Schwartz, Inc., 66 N.Y.2d 21 (1985): Barring Indemnification for Manufacturers of Defective Products

    Rosado v. Proctor & Schwartz, Inc., 66 N.Y.2d 21 (1985)

    A manufacturer of a defective product cannot obtain indemnification from the purchaser when the purchaser’s employee is injured due to the manufacturer’s failure to provide adequate safety devices, even if the sales contract requires the purchaser to install such devices.

    Summary

    Hector Rosado, an employee of Comet Fibers, was injured while operating a garnett machine purchased by Comet from Proctor & Schwartz. The sales contract required Comet to install necessary safety guards, but the machine lacked adequate safeguards, leading to Rosado’s injuries. Rosado sued Proctor, who then sought indemnification from Comet. The New York Court of Appeals held that Proctor, as the manufacturer of a defective product, could not obtain indemnification from Comet, as Proctor had a non-delegable duty to ensure the machine was reasonably safe when it left their control. Allowing indemnification in this situation would undermine the policy goals of strict products liability.

    Facts

    Comet Fibers purchased a garnett machine from Proctor & Schwartz in 1970. The sales contract stipulated that Comet was responsible for installing safety guards and disconnect switches.
    The machine was delivered without safety devices. Comet installed a mesh fence with a gap and doors that exposed moving parts when opened.
    Hector Rosado, a Comet employee, was injured when his hand came into contact with unprotected chains and gears while cleaning the machine, which was often operated with the safety gate open.

    Procedural History

    Rosado sued Proctor & Schwartz.
    Proctor initiated a third-party action against Comet, seeking contribution and indemnity.
    The trial court dismissed Proctor’s indemnification claim. Comet settled with Rosado, precluding Proctor’s contribution claim.
    Proctor settled with Rosado before a verdict and appealed the dismissal of its indemnification claim.
    The Appellate Division affirmed the dismissal, and Proctor appealed to the New York Court of Appeals.

    Issue(s)

    Whether a manufacturer of a defective product can obtain indemnification from the purchaser when the sales contract requires the purchaser to install safety devices and the purchaser’s employee is injured due to the absence of such devices.

    Holding

    No, because the manufacturer has a non-delegable duty to provide a reasonably safe product, and allowing indemnification in this circumstance would undermine the public policy goals of strict products liability.

    Court’s Reasoning

    The court distinguished between contribution and indemnity, noting that contribution involves distributing the loss among tortfeasors, while indemnity shifts the entire loss to another party.
    Indemnity arises from contract, either express or implied. Proctor conceded there was no express agreement for indemnification.
    The court rejected Proctor’s argument for implied indemnity, stating that strict products liability is not akin to vicarious liability; manufacturers are held accountable as wrongdoers and must ensure their products are reasonably safe when they leave their control. The court stated that “a prima facie case is not established unless it is shown, among other things, that in relation to those who will use it, the product was defective when it left the hands of the manufacturer because it was not reasonably safe”.
    The court disagreed with the Sixth Circuit’s decision in Proctor & Schwartz v. United States Equip. Co., which allowed a similar indemnity claim, stating that the manufacturer is in the best position to determine appropriate safety devices, particularly when the dangers do not vary by job site.
    The court emphasized that “Preventing injuries in the first place is the primary public policy underlying the doctrine of strict products liability.”
    Allowing manufacturers to shift their duty of care through boilerplate contract language would erode the incentive to maintain safety and sanction the marketing of dangerous machines.
    The court distinguished McDermott v. City of New York, where indemnification was allowed because the manufacturer breached a duty to the injured plaintiff, whereas in this case, Proctor sought to recover from Comet based on a contract between them, despite Proctor’s breach of duty to Comet’s employee.

  • Cover v. Cohen, 61 N.Y.2d 261 (1984): Admissibility of Post-Manufacture Evidence in Design Defect Cases

    Cover v. Cohen, 61 N.Y.2d 261 (1984)

    In a strict products liability action based on design defect, the product’s reasonable safety is determined by balancing its risks against its utility, costs, and available alternatives, considering what a reasonable person with knowledge of potential injury would conclude at the time of marketing.

    Summary

    This case addresses the admissibility of post-manufacture evidence in a strict products liability action based on design defect. Astor Cover was severely injured when a 1973 Chevrolet Malibu, driven by Irving Cohen, accelerated uncontrollably and pinned him against a wall. Cover sued Cohen, the car dealer (Kinney Motors), and the manufacturer (General Motors). The trial court admitted evidence of a federal safety standard applicable to later model vehicles and a throttle spring removed after the accident. The jury found General Motors and Kinney Motors liable. The New York Court of Appeals reversed, holding that the post-manufacture safety standard was inadmissible and its admission was prejudicial. The court clarified the time of manufacture as the determinative date and articulated the rules for admitting evidence related to a manufacturer’s post-sale duty to warn.

    Facts

    Irving Cohen’s 1973 Chevrolet Malibu accelerated uncontrollably while he was attempting to park, striking and severely injuring Astor Cover. The car had been driven 12,000 miles without prior issues. Cover sued Cohen, Kinney Motors (the dealer), and General Motors (the manufacturer), alleging negligence and strict products liability based on a defective throttle return spring.

    Procedural History

    The trial court bifurcated the trial, addressing liability first. The jury found Cohen negligent, General Motors negligent and strictly liable, and Kinney Motors strictly liable. The trial court granted Kinney’s motion for indemnification against General Motors. The Appellate Division affirmed, reducing the damages. General Motors appealed to the New York Court of Appeals, which granted leave. Kinney did not appeal but filed a brief arguing its liability was dependent on General Motors’.

    Issue(s)

    1. Whether evidence of a Federal motor vehicle safety standard, which postdated the manufacture of the car, is admissible in a strict products liability action based on design defect.
    2. Whether a throttle spring removed from the vehicle 15 months after the accident is admissible as evidence.
    3. Whether a statement made by the driver to a police officer shortly after the accident is admissible as evidence.
    4. Whether a technical service bulletin issued after the sale of the vehicle is admissible as evidence.

    Holding

    1. No, because data not available at the time of manufacture is generally inadmissible, with limited exceptions for feasibility or a continuing duty to warn.
    2. No, because absent proper foundation testimony, both the spring and its condition at the time of removal were irrelevant and inadmissible.
    3. No, because the driver’s statement was exculpatory rather than inculpatory and thus did not qualify as a declaration against interest, and no other hearsay exception applied.
    4. Yes, if properly related to the alleged defect and relevant to a cause of action for negligent failure to warn.

    Court’s Reasoning

    The Court of Appeals held that evidence of post-manufacture modifications is inadmissible to establish fault in a strict products liability case based on design defect, although it may be admissible to establish feasibility. Because feasibility was conceded, the evidence concerning the federal motor vehicle safety standard was inadmissible and prejudicial. The court stated, “The issue before the jury was whether upon delivery to Irving Cohen in December, 1972 of his 1973 Malibu with the spring then in use by General Motors the car was reasonably safe in design.” The court further reasoned that the spring removed 15 months after the accident lacked foundation and was irrelevant. The driver’s statement to the police was inadmissible hearsay, as it was exculpatory and not a declaration against interest. The technical service bulletin, however, could be admissible on the issue of negligent failure to warn if a duty to warn existed. The court outlined the factors for determining the existence and scope of the post-sale duty to warn, including the degree of danger, the number of reported instances, and the burden on the manufacturer to provide a warning. The court reversed the order and granted a new trial as to both General Motors and Kinney, noting that full relief to the appealing party (General Motors) may necessitate relief to a non-appealing party (Kinney).

  • Bichler v. Eli Lilly and Co., 55 N.Y.2d 571 (1982): Concerted Action Liability for DES Manufacturers

    55 N.Y.2d 571 (1982)

    A pharmaceutical manufacturer can be held liable under a concerted action theory for injuries caused by prenatal exposure to diethylstilbestrol (DES) if it acted in concert with other manufacturers, either through an express or implied agreement or by providing substantial assistance to the wrongful conduct of others, even if the plaintiff cannot identify the specific manufacturer of the DES ingested by their mother.

    Summary

    Joyce Bichler, a DES daughter, sued Eli Lilly and Co. for cancer resulting from her mother’s ingestion of DES during pregnancy in 1953. Unable to prove Lilly manufactured the specific DES her mother took, Bichler pursued a concerted action theory. The jury found Lilly liable for wrongfully marketing DES without adequate testing, awarding Bichler $500,000. The New York Court of Appeals affirmed, holding that the trial court’s instructions on concerted action were not erroneous and that sufficient evidence supported the verdict, even without proof that Lilly manufactured the specific DES or direct evidence of an agreement among manufacturers. The court emphasized that conscious parallelism in conduct and substantial assistance in encouraging wrongful conduct could establish concerted action liability.

    Facts

    Diethylstilbestrol (DES), a synthetic estrogen, was approved for use in the U.S. in 1941. Initially, 12 manufacturers, including Eli Lilly, submitted separate New Drug Applications (NDAs) relying on a master file compiled by a committee chaired by Lilly. In 1947, the FDA approved DES for miscarriage treatment. In 1971, the FDA banned DES for pregnancy-related issues due to its ineffectiveness and dangers to offspring. Plaintiff Joyce Bichler, exposed to DES prenatally, developed cervical and vaginal cancer. She sued Lilly, alleging her mother’s 1953 DES ingestion caused her cancer in 1971.

    Procedural History

    Bichler sued Lilly in 1974. The trial was bifurcated: first to determine the manufacturer, then to assess liability under a concerted action theory. The jury found Bichler had not proven Lilly was the manufacturer. In the second phase, the jury found Lilly liable under a concerted action theory, awarding $500,000. The Appellate Division affirmed. Lilly’s appeal as of right was dismissed, but the Court of Appeals granted leave to appeal.

    Issue(s)

    1. Whether the trial court’s instructions on concerted action liability were erroneous as a matter of law.

    2. Whether the evidence presented at trial was legally sufficient to support a verdict in the plaintiff’s favor on the issue of concerted action.

    Holding

    1. No, because the trial court’s instructions concerning the pharmaceutical manufacturer’s liability on a concerted action theory for injuries caused by prenatal exposure to DES were not erroneous as a matter of law.

    2. Yes, because, evaluating the evidence in light of those instructions, which became the governing law, the jury’s verdict is supported by a sufficient factual foundation.

    Court’s Reasoning

    The Court of Appeals reasoned that concerted action liability applies when parties act in pursuance of a common plan or design to commit a tortious act. It is sufficient if they actively participate, further the act by cooperation, aid or encourage the wrongdoer, or ratify and adopt the acts for their benefit. The court referenced the Restatement (Second) of Torts § 876. The court noted that Lilly did not properly preserve objections to the jury instructions. Therefore, the instructions became the law of the case. The court found sufficient evidence to support the jury’s findings of both conscious parallelism and substantial assistance. Eight companies filed NDAs to market DES for pregnancy problems between 1947 and 1948, relying on the same studies. Each sought approval for 25mg tablets, stronger than previously approved dosages. The court concluded this parallel conduct and Lilly’s participation in the first wave of filings could support a finding that Lilly substantially encouraged the other 140 manufacturers engaged in marketing DES for the same purpose. The court also rejected Lilly’s argument about the lack of foreseeability, citing expert testimony and evidence of related research. Finally, the court stated that because the case was pleaded and proved exclusively on a failure to test theory, duty to warn arguments did not apply. “All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt his acts done for their benefit, are equally liable with him”.