Products Liability in New York, (Strategy and Practice) Second Edition Published by The New York State Bar Asscociation, Author: Neil A. Goldberg, Esq.; John Freedenberg, Esq.; Editors-in-Chief is now available for purchase. Click here to order. Neil is recognized as one of the leading Products Liability defense lawyers in the United States as is his firm Goldberg Segalla,LLP. He is past president of the Defense Research Institute (DRI), the largest organization of civil defense attorneys in the United States.
Anthony Gair is co-author of the chapter entitled “Culpable Conduct/Comparative Fault Issues as Applicable to a Products Liability Case”
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf has been named 2013 Law Firm of the Year, Personal Injury Litigation-Plaintiffs as well as being listed in six practice areas in the just released ranking of law firms by U.S. News Media Group, the publishers of U.S. News & World Report, and Best Lawyers®. This is the third edition of this highly-anticipated annual analysis.
Gair, Gair, Conason, Rubinowitz, Bloom, Hershenhorn, Steigman & Mackauf was nationally ranked in the top tier in Plaintiffs Product Liability Litigation, Medical Malpractice Law, Professional Malpractice Law and Mass Tort Litigation/Class Actions. The firm also ranked in the top tier in six legal specialties in the New York City Metropolitan Area in Plaintiffs Legal Malpractice, Medical Malpractice, Personal Injury Litigation, Product Liability Litigation, Professional Malpractice Law and Mass Tort Litigation/Class Actions in the New York Metropolitan area.
Inclusion in the “Best Law Firms” listing is based on a rigorous evaluation process that includes data collection, evaluation and feedback from thousands of clients, lawyers and law firm representatives spanning a wide range of practice areas nationwide.
On Tuesday, November 1, 2011, Cardozo Law School will hold a seminar on Opening Statements for more than 100 students as a prerequisite to its Intensive Trial Advocacy Program (ITAP). Featured Speakers at the lecture include Ben Rubinowitz, and Judith Livingston. Both Rubinowitz and Livingston have been recognized as two of the most successful Trial Lawyers in New York and both are members of the Inner Circle of Advocates — a group of the top 100 Trial Attorneys in the Country. Each of these speakers has obtained multiple million dollar verdicts in areas including Medical Malpractice claims, Automobile Accident cases, Construction Accident cases, Products Liability claims and Civil Rights violations. In the past both Rubinowitz and Livingston have been asked to give demonstrations of their successful Trial Techniques at the annual Continuing Legal Education program “Masters of Trial Law Seminar.” Rubinowitz stated “It is an honor to be asked to participate in this program. I am delighted that Judy Livingston will be joining me in this event.”
Learn more about ITAP:
A Mobile jury awarded a $40 million wrongful death judgment to the parents of a Mobile County teenager who was killed in a 2004 car accident. The judgment was against Kia Motors and the makers of a seatbelt buckle. Tiffany Stabler was ejected from the vehicle after she struck a sign and the car overturned. Witnesses said that she was wearing her seatbelt, while Kia maintained that she was not.
Stabler was driving a 1999 Kia Sephia that her father had bought for her 16th birthday. Kia officials knew that seatbelts in the 1999 model vehicles were faulty, according to plaintiff testimony, but did not include them in a recall of 1995-1998 vehicles.
By; Anthony Gair,
In personal injury cases predicated upon the negligent design of a product,(product liability cases), such as almost any type of machine which is to be used by people of varying training and skill it is imperative for the plaintiff’s attorney to understand the basics of machine design. This is crucial in New York where the plaintiff’s culpable conduct is a defense to a strict product liability action so that the percentage of fault for his injury may be, if not eliminated, reduced as much as possible. It is not enough for an attorney to simply ask a product design engineer at deposition how the product works. Such questions alone are pointless and will not result in a deposition which can be used to defeat a motion for summary judgment, or at trial, to impeach the product design engineer. As in any deposition the lawyer must ask himself what the purpose of the deposition is. Is it merely to gather information or is it to cross examine the witness so he will be pinned down at trial? In a product liability case in New York the plaintiff is allowed to serve extensive interrogatories. Hence if well drafted the plaintiff’s attorney will have most of the discovery needed for both deposition and trial. Hence it is submitted that the primary purpose of the deposition of a product design engineer is to cross examine him on the principles of design engineering. Similar to a deposition of a physician in a medical malpractice case where the plaintiff’s lawyer must know the medicine as well, if not better, then the physician the plaintiff’s lawyer must know the principles of design engineering as well as the design engineer. If one is not willing to learn this area there is no reason to undertake a complex product design defect case. The plaintiff’s lawyer must check the college and graduate school curriculum for the field of design engineering and read as many of the texts used in design engineering courses as possible.. If a lawyer is not willing to make this commitment he is better off referring the case to a specialist in product design defect cases. The following is a basic discussion of the principles of machine design.
Machine design is a sub-specialty of mechanical engineering. In designing machines, design engineers must take into consideration that a machine, will be used by people of varying intelligence, education and skill. “Human factors engineering, engineering psychology, and ergonomics are largely overlapping segments of a common area of interest: the analysis and design of the conditions affecting people operating in concert with machines”. 1
Ergonomics, or Human Factors Engineering and Design as it is commonly referred to in the United States, involves the consideration by the design engineer of human factors and characteristics when designing safety features into machines. The cardinal principal is that it is human nature to err, that is, people make mistakes. It is standard and accepted practice that the concept of human error be taken into consideration when designing a machine. A machine, must be designed to reduce, as much as is technologically feasible, without destroying the utility of the machine, foreseeable actions by the operator causing injury or death.
In designing a machine a hazard analysis must be done. From a design engineering standpoint a hazard is a condition that has the potential of causing or contributing to injury.
Danger in the context of safety design engineering theory means a higher probability of the risk of an identified hazard causing injury. Risk is the probability of being injured by an identified hazard.
When a design engineer has identified a foreseeable dangerous hazard, there is a safety design priority recognized by all design engineers with reference to preventing injury from the identified hazard which is a follows:
A. Design out the hazard if one can do so without destroying the ability of the machine to function or utility of the machine.
B. If an identified hazard cannot be designed out of the machine without destroying its ability to function or utility the next goal of the design engineer is to guard against it causing injury by incorporating guards or other safety devices.
C. The last alternative is that if one can’t design out the hazard because doing so would destroy the utility of the machine and one can’t guard against it by incorporating guards or safety devices, the last priority is to warn about it. It is the ethical responsibility of the design engineer for the machine to develop a safe functional design which eliminates or greatly reduces the potential for human error on the part of the machine operator causing injury to him self or others.
The following are sample questions that should be asked in a design defect case at the deposition of the design engineer who designed the product;
Continue reading →
The family of a deceased woman has filed suit against a seatbelt manufacturer in Texas federal court. The suit alleges her seatbelt failed to meet safety standards required at the state and federal level and by the manufacturer’s own internal requirements.
Sandra Dozier was driving a 1998 Pontiac Grand Prix when she lost control of the car and it rolled over. She was killed in the accident despite wearing a seatbelt. TRW Vehicle Safety Systems is the manufacturer accused of producing an unreasonably dangerous restraint system.
The suit seeks damages for loss of care, loss of companionship and society, mental anguish, medical and funeral expenses, interest and court costs, among other losses.
Ford 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.
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.
Continue reading →
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.
Continue reading →