Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf is a New York Plaintiff's personal injury law firm specializing in automobile accidents, construction accidents, medical malpractice, products liability, police misconduct and all types of New York personal injury litigation.

Articles Posted in Product Liability

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fordFord pleaded with the Illinois Supreme Court Justices last week in hope that they’d overturn the $43 million Madison County verdict awarded to Dora Mae Jablonski in 2005, as reported in The Madison Record.

Jablonski’s husband, John Jablonski, died after the fuel tank in their 1993 Lincoln Town Car exploded and she suffered severe burns across most of her body.

“We firmly believe that the parties received a fair trial in this case,” Fifth District Appellate Court Justice Bruce Stewart wrote in a February judgment.

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We are pleased to announce that our own Tony Gair has also been named to this years Best Lawyers as the “New York Best Lawyers Product Liability Litigator of the Year” for 2011.

This is in recognition of Mr. Gair’s long history of helping people injured by the negligence and carelessness of others. He also advises younger attorneys on how to effectively represent people who have suffered catastrophic injuries and has taught at Fordham University School of Law in the Continuing Legal Education program.

One of his most notable roles was heading up the team that represented the Diallo family for the wrongful death of their son Amadou, who was shot 19 times by members of the New York City Police Department’s Street Crimes Unit-a case that was extensively covered by the national media.
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By Howard S. Hershenhorn and Anthony H. Gair.

In products liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the product properly or to follow warnings which caused the plaintiff’s injury. In New York the plaintiff’s culpable conduct is a defense in a Products Liability case. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users of products are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer in a products liability case is crucial in New York. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to product design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a product. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Product design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

Once a hazard is identified, it is the responsibility of the design engineer to design the machine so as to eliminate, or at least, reduce the possibility of injury resulting from that hazard. There is an accepted priority in the field of product design engineering with regard to the prevention of injury from an identified hazard. The first goal of the design engineer is to eliminate or design out the hazard if this can be done without destroying the functional utility of the product. Obviously, this often cannot be done. The second option is to guard against the hazard causing injury. If the hazard cannot be guarded against the final option is to warn about the potential of injury resulting from the known hazard.

In many cases involving injury caused by allegedly defective machines, the machine will have had a warning on it as to the very action by the plaintiff which precipitated his injury. This must, of course, be dealt with at the deposition of the defendant’s design engineer. Most design engineers will admit that written warnings are the least effective method of protecting someone from a known hazard and should be used only as a last resort or in combination with proper guarding.
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Robert Conason will be participating in The Brooklyn Law School symposium, “The Products Liability Restatement: Was it a Success?,” scheduled for November 13th and 14th, 2008. Bob will be on the panel discussing The Restatement and Design Defect §2(b) on November 13th.

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In product liability cases involving allegedly defective machines such as printing presses, plastic molding machinery, power saws, power presses and innumerable others, the defense will invariably argue that it was the plaintiff’s culpable conduct which caused the accident and resulting injury. In other words, the defendant will argue that it was the plaintiff’s failure to use the machine properly or to follow warnings which caused the plaintiff’s injury. The problem confronting the plaintiff’s attorney is that plaintiff will often not have used the machine properly. Given this fact, the jury must be taught that such misuses were reasonably foreseeable and that the manufacturer knew or should have known that users are people and that people can make mistakes which must be guarded and warned against.

The deposition of the defendant’s design engineer is crucial. Defendants will often produce a risk manager on behalf of the manufacturer for deposition. This is totally unacceptable. The plaintiff’s attorney must insist that a design engineer with knowledge of the product be produced in order, among other things, to deal effectively with the affirmative defense of culpable conduct. Indeed, the deposition notice should be specific in this regard.

In order to effectively depose defendant’s design engineer with regard to the defense that the plaintiff’s negligence caused the accident, the plaintiff’s attorney must understand the concept of ergonomics as it relates to design engineering. An understanding of hazard analysis is also required. Ergonomics as it relates to machine design involves the consideration of human factors and characteristics in designing safety features into machines. The basic precept is that people make mistakes. Since this is foreseeable to the design engineer, it must be taken into consideration when designing a machine. A machine must be designed so as to reduce, as much as technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator resulting in injury. In order to design a machine so as to reduce the potential of injury resulting from human error, hazard analysis must include a collection of accident and injury information. Machine design is not a stagnant event, but an ever evolving process, which requires constant review of injury data, so that modifications to the machine design may be made to eliminate predictable human behavior resulting in injury. A hazard is a condition that may cause injury. Once a hazard has been identified, the risk of injury as a result of the hazard must be reduced as much as possible while preserving the utility of the machine. A machine is dangerous when the risk of being injured by the identified hazard is unacceptable.

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In an injury or death resulting from the defective design of a product, the claim is that the product functioned as it was designed but the design was negligent. That is a reasonable manufacturer should have known that the design of the product was defective, that it was foreseeable that the design could cause injury or death to the user of the product. Once a hazard, which is a condition that may cause injury or death, is identified in a product, the design engineer must follow an accepted design priority recognized by all design engineers in reducing the possibility of the dangerous condition of the product causing injury or death.

1. The dangerous condition must be designed out of the product if such can be done without destroying the utility of the product. If this can’t be done then:

2. The dangerous condition of the product must be guarded against. If the dangerous condition of the product can’t be guarded against then: