Court Reviews New York Products Liability Law

Where a defective product causes a loss, you traditionally had to prove one of three things in New York State:  (a) manufacturing defect (i.e., the particular unit that caused the loss was a “bad apple” that deviated from the rest of the units); (b) design defect (i.e., the whole batch of units contained a design flaw that made them all dangerous; (c) failure to warn (i.e., the product would have been safe to use had it been accompanied by better instructions for its use and/or clearer warnings about dangers accompanying use of the product). Generally speaking, a “manufacturing defect” is easier to prove since you are only claiming that the particular product that caused your loss was deficient and you need not show that all products were poorly designed.

Ten years ago, New York’s highest court ruled that Plaintiff need not prove the specific defect which caused a loss if the Plaintiff can show both that (a) the product did not perform as intended and (b) all other possible causes for the loss except product failure have been eliminated.  [1]

In June 2010, surgeons implanted an “R3 Constrained Liner” manufactured by Smith & Nephew into Jana Goldin’s right hip area. Approximately two months later, Ms. Goldin experienced severe pain and x-rays revealed that the right femoral head had become dislodged from the Liner. She underwent further surgery to alleviate the situation. Coincidentally, the day after her August 2010 surgery, a product recall was issued on this Liner.   Goldin sued Smith & Nephew alleging product defect. Smith & Nephew transferred the case to federal court and filed a motion to dismiss, claiming the complaint did not state a case under New York product liability law.

The Court agreed with Smith & Nephew and granted the dismissal. [2] The Court found that the Complaint did not adequately state a claim under manufacturing defect, design defect or failure to warn theories. The Court acknowledged that the 2003 Court of Appeals Spellar case allows a plaintiff to proceed to trial on a “circumstantial evidence” theory, but only where all other possible causes of the loss have been eliminated except product failure.  Ms. Goldin’s complaint failed to adequately state facts to allow her case to go forward under a circumstantial evidence theory.  Stated the Court:

“If Plaintiff is going to rely on the circumstantial theory of liability described in New York case law, she must allege more facts to nudge her claim above the level of speculation and into the realm of the plausible.”   

For example, noted the Court, Ms. Goldin’s complaint did not allege that her surgeon viewed the problem with the Liner as a manufacturing defect, that the only possible cause of her injury was a defect in the product, and that a circumstantial case supports the conclusion that this otherwise adequately designed product must have suffered from a manufacturing defect. 

Further, the Court found that the Complaint failed to adequately state a design defect, noting that “the bare fact of the voluntary recall does not suffice to prove a design defect.”

All is not lost for Ms. Goldin as the Court gave her sixty days to file an amended complaint, in order to fix her pleading deficiencies.

BOTTOM LINE: I disagree with this Court’s ruling. A Complaint is an accusatory instrument which starts the litigation process. The Complaint need not be perfect; it only serves to put the defendant(s) on notice as to the nature of the allegation alleged by the Plaintiff. After a complaint is filed, the defendant will serve a demand either for interrogatory responses or for a bill of particulars (usually defendant is not entitled to serve both).  It is in these responses that the Plaintiff gives further detail about their allegations against the defendant.   Further, the discovery process exists so that the Plaintiff can obtain important information from defendant, such as other complaints of failures of the product, recalls and the reasons behind the recalls.  The defendant is usually in exclusive possession of such information.  Many times Plaintiff and her expert does not know why a product failed until after Plaintiff has obtained discovery from the defendant and/or has obtained an exemplar product to disassemble and compare to the allegedly failed one.

[1] Speller ex rel. Miller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 41 (2003)
[2] Goldin v. Smith & Nephew, Inc., 2013 U.S. Dist. LEXIS 58811, 2013 WL 1759575 (S.D.N.Y. Apr. 24, 2013)