Lori Hoover, et al., Respondents,v.New Holland North America, Inc.,, et al., Appellants, et al., Defendants. (And a Third-Party Action.)BriefN.Y.Feb 12, 2014State of New York Court of Appeals DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: email@example.com -Website: www.dickbailey.com LORI HOOVER and JESSICA BOWERS, Plaintiffs-Respondents, -against- NEW HOLLAND NORTH AMERICA, INC. f/k/a FORD NEW HOLLAND, INC., CASE NEW HOLLAND, INC., NIAGARA FRONTIER EQUIPMENT SALES, INC., f/k/a NIAGARA FORD NEW HOLLAND, INC., Defendants-Appellants, -and- NEAPCO, INC., UNITED COMPONENTS, INC., as Successor in Interest to New England Auto Products Corporation a/k/a NEAPCO, PETER A. SMITH, ALAMO GROUP (SMC) INC., Individually and as Successor in Interest to SMC CORPORATION, SMC CORPORATION and GKN WALTERSCHIED, INC., Defendants. [Additional actions continued on inside cover] TO BE SUBMITTED BY: MICHAEL HOENIG HERZFELD & RUBIN, P.C. Attorneys for Amicus Curiae The Product Liability Advisory Council, Inc. 125 Broad Street New York, New York 10004 (212) 471-8500 firstname.lastname@example.org HUGH F. YOUNG, JR., ESQ. The Product Liability Advisory Council, Inc. 1850 Centennial Park Drive, Suite 510 Reston, VA 20191-1517 (703) 264-5300 BRIEF AMICUS CURIAE OF THE PRODUCT LIABILITY ADVISORY COUNCIL, INC. IN SUPPORT OF APPELLANTS HUGH F. YOUNG, JR. JONATHAN M. HARRISON MICHAEL HOENIG DAVID B. HAMM Of Counsel Date of Completion: December 24, 2013 __________________________________________________________ CNH AMERICA LLC, Third-Party Plaintiff-Appellant, -against- KYLE P. ANDREWS, TREASURER OF NIAGARA COUNTY, as the Temporary Administrator for the ESTATE OF GARY HOOVER, Deceased, Third-Party Defendant-Respondent. __________________________________________________________ GKN WALTERSCHIEID, INC., Third-Party Plaintiff, -against- KYLE P. ANDREWS, TREASURER OF NIAGARA COUNTY, as the Temporary Administrator for the ESTATE OF GARY HOOVER, Deceased, Third-Party Defendant. __________________________________________________________ i TABLE OF CONTENTS PRELIMINARY STATEMENT ...............................................................................2 QUESTION ADDRESSED BY AMICUS.................................................................4 STATEMENT OF FACTS ........................................................................................5 ARGUMENT .............................................................................................................7 THE ROBINSON MATERIAL ALTERATION DOCTRINE IS VITAL TO THE DEMARCATION BETWEEN IMPOSITION OF REASONABLE PRODUCT LIABILITY AND OPPRESSIVE, UNFETTERED PRODUCT GUARANTOR LIABILITY. THERE IS A SHARP DISTINCTION IN A DESIGN DEFECT CLAIM BETWEEN UNINTENDED USE, AS TO WHICH FORESEEABILITY MAY BE A FACTOR, AND MATERIAL ALTERATION, AS TO WHICH IT IS NOT. THIS DESIGN DEFECT CLAIM (FAILURE TO WARN CLAIMS WERE DISMISSED) INVOLVES A MATERIAL ALTERATION. DISMISSAL IS APPROPRIATE...............................................7 A. The Origins of Robinson: An Integral Part of Strict Product Liability Law In New York....................................................................................7 B. Robinson................................................................................................12 C. This Court’s Decision in Robinson and the Material Alteration Doctrine .................................................................................................14 D. The Continued Vitality and Importance of the Robinson Material Alteration Doctrine................................................................................18 1. The Sage “Exception” ...................................................................19 2. The Lopez “Exception” .................................................................21 3. The Liriano Exception ..................................................................25 E. That the Guard Was Damaged Over Years of Use Before Being Removed But Not Replaced Many Years Prior to the Accident, Does Not Render Robinson Inapplicable .......................................................27 CONCLUSION........................................................................................................29 Cases TABLE OF AUTHORITIES PAGE Alnatulli v. Delhi Constr. Corp., 77 N.Y.2d 525 (1991) 18 Aparicio v. Acme Aln. Repair, Inc., 33 A.D.3d 480 (1 st Dept. 2006) 27 Auld v. Sears, Roebuck & Co., 261 App. Div. 918 (2nd Dept. 1941) 28 Barnhard v. Cybex Int'l, Inc., 89 A.D.3d 1554 (4th Dept. 2011) 22 Bauerlein v. Salvation Army, 74 A.D.3d 851 (2nd Dept. 2010) 27 Balm v. Triumph Corp., 33 N.Y.2d 151 (1973) 9-12 Burns v. Haines Equip., Inc., 284 A.D.2d 922 (4th Dept. 2001) 18, 23 Campo v. Scofield, 301 N.Y. 468 (1950) 10 Codling v. Paglia, 32 N.Y.2d 330 (1973) 7, 8,9 D'Amico v. Christie, 71 N.Y.2d 76 (1987) 17 Darsan v. Guncalito Corp., 153 A.D.2d 868 (2nd Dept. 1989) 19, 23 Diaz v. Marriott Int'l, 251 A.D.2d 367 (2nd Dept. 1998) 27 Felle v. W W Grainger, Inc., 302 A.D.2d 971 (4th Dept. 2003) 18 Gross v. Empire State Bldg. Assocs., 4 A.D.3d 45 (1 st Dept. 2004) 11 Hamilton v. Beretta US.A. Corp., 96 N.Y.2d 222 (2001) 17 Holdampfv. A.C. & S., Inc. (In re New York City Asbestos Litig.), 5 N.Y.3d 486 (2005) 17 Jablon v. Solow, 91 N.Y.2d 457 (1998) 22 Klein v. Hyster Co., 255 A.D.2d 425 (2nd Dept. 1998) 23, 24 Kromer v. Beazer East, Inc., 826 F. Supp. 78 (W.D.N.Y. 1993) 19 Lalney v. Foley, 188 A.D.2d 157 (4th Dept. 1993) 20 11 LaPaglia v. Sears Roebuck & Co., 143 A.D.2d 173 (2nd Dept. 1988) 23 Larsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968) 9 Lopez v. Precision Papers, 67 N.Y.2d 871 (1986), affg 107 A.D.2d 667 (2nd Dept. 1985) 21-24 Liriano v. Hobart Corp., 92 N.Y.2d 232 (1998) 25-27 Mackney v. Ford Motor Co., 251 A.D.2d 298 (2nd Dept. 1998) 18 Magee v. E. W. Bliss, 120 A.D.2d 926 (4th Dept. 1986) 19 Masiello v. Efficiency Devices, Inc.. 6 A.D.3d 672 (2nd Dept. 2004) 23 Mayorga v. Reed-Prentice Packaging Mach. Co., 238 A.D.2d 483 (2nd Dept. 1997) 27 McAvoy v. Outboard Marine Corp., 134 A.D.2d 245 (2nd Dept. 1987) 23 Mercedv. Auto Pak Co., Inc., 533 F.2d 71 (2nd Cir. 1976) 13 Micallefv. Miehle Co., Div. ofMiehle-Goss Dexter, Inc., 39 N.Y.2d 376 (1976) passim Moore v. Deere & Co., 195 A.D.2d 1044 (4th Dept. 1993) 18 Neri v. John Deere Co., 211 A.D.2d 915 (3 rd Dept. 1995) 27 Patino v. Lockformer Co., 303 A.D.2d 731 (2nd Dept. 2003) 18 Pulka v. Edelman, 40 N.Y.2d 781 (1976) 17 Purdy v. Public Admin. ofCounty of Westchester, 72 N.Y.2d 1 (1988) 17 Rios v. Rockwell Int 'I Corp., 268 A.D.2d 279 (1 st Dept. 2000) 24 Robinson v. Reed-Prentice Div. ofPackage Mach. Co., 49 N.Y.2d 471 (1980) passim Ryan v. Arrow Leasing Corp., 260 A.D.2d 565 (2nd Dept. 1999) 18 Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579 (1987) 19-21 Sanchez v. State ofN. Y, 99 N.Y.2d 247 (2002) 11 111 Small v. Keneston, 57 A.D.3d 1262 (3 rd Dept. 2008) 22 Tucci v. Bossert, 53 A.D.2d 291(2nd Dept. 1976) 13, 22 Tuesca v. Rando Mach. Corp., 226 A.D.2d 157 (1 st Dept. 1996) 24 Van Buskirk v. Migliorelli, 185 A.D.2d 587 (3 rd Dept.), app denied 80 N.Y.2d 761 (1992) 19, 23 Vega v. Stimsonite Corp., 11 A.D.3d 451 (2nd Dept. 2004), app dsmsd 4 N.Y.3d 759 (2005), app dsmd 6 N.Y.3d 805 (2006) 18 Velez v. Craine & Clark Lumber Corp., 33 N.Y.2d 117 (1973) 8 Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395 (1975) 8 Weininger v. Hagedorn & Co., 91 N.Y.2d 958 (1998) 22 Wick v. Wabash Holding Corp., 801 F. Supp. 2d 93 (W.D.N.Y. 2010) 19 Wood v. Peabody Int'l Corp., 187 A.D.2d 824 (3 rd Dept. 1992) 18 Wyda v. Makita Elec. Works, 232 A.D.2d 407 (2nd Dept. 1996) 18, 23 Other Authorities 2 L. Frumer, M. Friedman, C. Sklaren, Products Liability, §16A(4), p. 222 (2013) 11 Gallub, Limiting the Manufacturer's Duty for Subsequent Product Alteration: Three Steps to a Rational Approach, 16 Hofstra L. Rev. 361 (Winter 1988).17-25 Henderson, Judicial Review ofManufacturers' Conscious Design Choices: The Limits ofAdjudication, 73 Colum. L. Rev. 1531 (1973) 9 Hoenig, The Law ofManufacturing and Design Defect Liability, 1 Products Liability in N.Y., (2nd Ed.), §1.27 17 Webster's Encyclopedic Unabridged Dictionary of the English Language (1994)],p.1151) 24 IV STATE OF NEW YORK COURT OF APPEALS LORI HOOVER and JESSICA BOWERS, Plaintiffs-Respondents, -against- NEW HOLLAND NORTH AMERICA, INC. f/k/a FORD NEW HOLLAND, INC., CASE NEW HOLLAND, INC., NIAGARA FRONTIER EQUIPMENT SALES, INC., f/k/a NIAGARA FORD NEW HOLLAND, INC., Defendants-Appellants, -and- NEAPCO, INC., UNITED COMPONENTS, INC., as Successor in Interest to New England Auto Products Corporation a/k/a NEAPCO, PETER A. SMITH, ALAMO GROUP (SMC) INC., Individually and as Successor in Interest to SMC CORPORATION, SMC CORPORATION and GKN WALTERSCHIED, INC, Defendants. CNH AMERICA LLC, Third-Party Plaintiff-Appellant, -against- KYLE P. ANDREWS, TREASURER OF NIAGARA COUNTY, as the Temporary Administrator for the ESTATE OF GARY HOOVER, Deceased, Third-Party Defendant-Respondent. GKN WALTERSCHIEID, INC., Third Party Plaintiff -against- KYLE P. ANDREWS, TREASURER OF NIAGARA COUNTY, as the Temporary Administrator for the ESTATE OF GARY HOOVER, Deceased. Third-Party Defendant. BRIEF AMICUS CURIAE OF THE PRODUCT LIABILTY ADVISORY COUNCIL, INC. IN SUPPORT OF APPELLANTS PRELIMINARY STATEMENT This brief is respectfully submitted on behalf of the Product Liability Advisory Council, Inc. ("PLAC"), as amicus curiae, in support of appellants' position. PLAC is a non-profit association with more than 100 corporate members representing a broad cross-section of American and international product manufacturers.! These companies, through PLAC, seek to contribute to the improvement and reform of law in the United States and elsewhere, with an emphasis on the law governing the liability of product manufacturers. PLAC's perspective is derived from the experiences of a corporate membership that spans a diverse group of industries in various facets of the manufacturing sector. This appeal presents important questions of law regarding the vitality of this Court's ruling in Robinson v. Reed-Prentice Div. ofPackage Mach. Co., 49 N.Y.2d 471 (1980) ("Robinson") and its progeny. Here, liability was imposed upon the seller of a machine notwithstanding that (a) a guard built into the machine when sold would have prevented the accident; (b) the machine was not made to be used without the guard - - indeed, warnings which were here deemed sufficient as a matter of law admonished against use of the machine without the guard, and the 1 A list of the current members ofPLAC is annexed both as an exhibit to the motion seeking leave to file this Brief, and as an appendix to this Brief. No party's counsel authored this brief, in whole or in part; no money was paid by a party for the purpose of funding preparation or submission of this amicus brief; no one other than amicus paid money to fund preparing or submitting this amicus brief. 2 machine owner fully understood the purpose of the guard; nevertheless (c) over years of use, the guard was damaged and ultimately was removed but not replaced by the machine's owner; (d) who, contrary to express warnings, continued to use the machine without the guard; and (e) contrary to express warnings, the machine was then used in the precise manner that placed the injured plaintiff into the position of danger realized in the accident. PLAC's members include manufacturers and sellers of a large variety of machines which necessarily incorporate moving and rotating parts, along with safety features that reduce the potential for injury. Beyond built-in safety mechanisms, manufacturers provide warnings, directions and instructions regarding safe use of the equipment and, in particular, warnings against use without the safety features operational and in place. In this case, however, plaintiff, in effect, argues that safety mechanisms such as shields or guards should not wear out, or that liability for the user's failure to replace safety features that have been removed should be shouldered by the manufacturer, despite express warnings not to use the machine in that condition. Such a duty is beyond the pale. A guarantee that safety mechanisms will never wear out, or imposition of a manufacturer's obligation to follow the product to ascertain that worn out or broken safety mechanisms are replaced by others, has been rejected for sound policy reasons by this Court. Robinson, and other decisions by this Court and the 3 Appellate Division departments, have clearly pointed the way. But the courts below strayed and upset this State's balanced approach to manufacturers' product liability. This errant ruling should be corrected. QUESTION ADDRESSED BY AMICUS Although defendants raise numerous issues on their appeal, PLAC addresses the following issue: May the manufacturer and distributor of a machine be held liable in products liability purportedly premised on a design defect, where (a) the machine as sold contained a guard which indisputably would have prevented this accident from occurring, (b) after the machine was sold, the guard became damaged over years of use, and was ultimately removed, (c) contrary to express manufacturer's warnings, deemed adequate as a matter of law, the consumer purposely refused to purchase a readily available, inexpensive and easily attachable replacement guard, and continued for some three years to operate the machine without the safety guard, (d) when the accident occurred, and again contrary to legally sufficient express warnings, the operator of the machine had not only permitted but directed the infant plaintiff to stand in close proximity to exposed rotating parts, allegedly resulting in her injury? The courts below ruled that liability may be imposed, denied summary judgment and sustained judgment in plaintiffs' favor. We submit that the decisions 4 below are entirely incompatible with Robinson, that the material alteration doctrine confirmed in Robinson is a critical bulwark against virtually unfettered guarantor liability against manufacturers, and that sound policy requires application of that doctrine here, and reversal of the courts below. STATEMENT OF FACTS PLAC adopts the "Statement of the Nature of the Matter and the Facts" in Appellants' Brief. Certain facts may be highlighted, however, to place the aberrational decision below into stark perspective: • When sold, the post-hole digger involved in this accident came equipped with all necessary shields, including a high-density polyethylene gear box safety shield covering the connection between the tractor power takeoff driveline and the post-hole digger's gearbox (R45I 0).2 • All admit that, had that guard remained on the machine as sold, this accident would not have happened (RI85I; R6582). • The manufacturer warned, among other things, "not [to] allow the auger to penetrate the ground to a depth where the flighting [R4480, R8223] is submerged" (R4307, R8220).3 2 All parenthetical numerical references preceded by "R" are to the Record on Appeal herein. 3 While plaintiff claims this warning was intended to prevent binding and overloading (Plaintiff's Br., p. 18), plaintiff does not dispute that, had it been adhered to, the guard would not have struck the ground, or at least not have struck the ground as often as it did. 5 • Smith, owner of the post-hole digger, removed the guard after it became damaged over at least three years of use (R6625, R6734, R6736, R6760). • Although he replaced a worn auger after three years (R6468, R6695), Smith never replaced the damaged and removed guard, notwithstanding that the operators' manual required such replacement, in order to assure that all shields "are in place and in good condition" (R4478, R8221, see R5768, R4478-9, R8221-2). A replacement guard could have been obtained for $40 and could have been installed in 15-30 minutes using common tools (R6527-8). • Although Smith knew the purpose of the guard (R6582), he continued to use the post-hole digger without the guard for some three years, disregarding warnings to never operate the machinery without all shields in place (R4467, R4476, R4478-9, R8215, R8219, R8231). • So clear were the warnings in the operators' manual (and, in part, on the machine) that the lower court dismissed as a matter of law all of plaintiff's claims premised on a failure to warn or insufficiency of the warnings (R30-2). Plaintiff did not appeal from that Order. • The accident occurred when the operator of the post-hole digger caused the infant plaintiff, contrary to the manufacturer's express warnings, to stand in close proximity to the auger and rotating parts (R4472, R4476, R8215, R8219). 6 We submit that, under these facts, the public-policy based material alterations doctrine set forth in Robinson mandates reversal of the courts below and dismissal of the action. ARGUMENT THE ROBINSON MATERIAL ALTERATION DOCTRINE IS VITAL TO THE DEMARCATION BETWEEN IMPOSITION OF REASONABLE PRODUCT LIABILITY AND OPPRESSIVE, UNFETTERED PRODUCT GUARANTOR LIABILITY. THERE IS A SHARP DISTINCTION IN A DESIGN DEFECT CLAIM BETWEEN UNINTENDED USE, AS TO WHICH FORESEEABILITY MAY BE A FACTOR, AND MATERIAL ALTERATION, AS TO WHICH IT IS NOT. THIS DESIGN DEFECT CLAIM (FAILURE TO WARN CLAIMS WERE DISMISSED) INVOLVES A MATERIAL ALTERATION. DISMISSAL IS APPROPRIATE. A. The Origins of Robinson: An Integral Part of Strict Product Liability Law In New York The significance of the material alterations doctrine as part of New York's law of product liability is better understood when the Robinson decision is placed within its proper context. Robinson was no sui generis case. Coming as it did less than seven years after this Court, in Codling v. Paglia, 32 N.Y.2d 330 (1973), eschewed "rationalizing broken field running" via exceptions to warranty privity requirements, and, instead, embraced strict product liability in tort, Robinson is properly seen as a foundational decision. Along with other key cases of its era, it established the parameters of the newly-announced cause of action. 7 Codling, itself, bore the seeds of the material alteration doctrine. The charge to the jury upon which that decision was premised included that: "the burden is upon the plaintiff to prove that the product was defective and that the defect existed while the product was in the manufacturer's possession" (32 N.Y.2d at 337). Notably, at that time, a complete defense to product liability could be founded either "in use of the product for other than its normally intended use or other than in the manner normally intended" (Id. at 343). Refinements of the new doctrine came quickly. Within six months, this Court further divorced strict product liability from its breach ofwarranty origins by refusing to apply an exclusion of warranties as a bar to recovery; notably, the nisi prius Court there again instructed the jury - - in a charge approved by this Court - - that the burden of plaintiff is to prove "that the [product] was in a defective condition on the date it was delivered [by defendant supplier] to plaintiffs' employer" (Velez v. Craine & Clark Lumber Corp., 33 N.Y.2d 117, 122 ). Two years later, the divorce of product liability from its contract origins was again emphasized by applying the tort statute of limitations (Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395 (1975). Sensitive to manufacturers' exposure to liability many years, even decades, after the products left their hands, the Court took pains to note that "the passage of time ... by similar token... can be expected 8 to complicate plaintiff's burden ofproving, as he must, that the alleged defect existed at the time the product left the manufacturer's plant" (Id. at 404). Simply put, the foregoing would mean that, where a machine when sold contained a guard preventing exposure to potentially hazardous rotating components, and the injury subsequently occurred only because the guard was, contrary to the manufacturer's instructions, removed and not replaced, the defect causing injury did not "exist... at the time the product left the manufacturer's plant." Hence, dismissal would be warranted. Philosophically, the Court's balanced approach to product liability appeared to reject the radical "absolute liability" concept, also spumed by most state courts (Henderson, Judicial Review ofManufacturers' Conscious Design Choices: The Limits ofAdjudication, 73 Colum. L. Rev. 1531, 1554 ). However, two decisions by this Court during those formative years were mistakenly viewed as supportive of later efforts by the plaintiff in Robinson to allow liability even where the product was safe when sold. In Bolm v. Triumph Corp., 33 N.Y.2d 151 (1973), this Court, adopting the reasoning ofLarsen v. General Motors Corp., 391 F.2d 495 (8th Cir. 1968), applied the six-month old Codling formulation to an alleged design defect which did not cause the accident, but allegedly enhanced injuries during a crash. "[A] manufacturer," the Court noted, "is under no duty to design a product which is accident-proof' (33 N.Y.2d at 9 157), nor (quoting Larsen) are manufacturers "insurers" (Id., at 158). Nevertheless, since motor vehicle accidents occur regularly and are thus foreseeable intervening causes of injuries, a defective design causing an enhanced injury could be a basis for liability (Id. at 159-160). Three years later, Micallefv. Miehle Co., Div. ofMiehle-Goss Dexter, Inc., 39 N.Y.2d 376 (1976), overturned the much-maligned "patent/latent danger" distinction set out in Campo v. Scofield, 301 N.Y. 468 (1950). In Micallef, plaintiff was injured when attempting to remove an imperfection on the plate of a printing press by placing a piece of plastic against the plate. His hand was drawn into the nip point of rollers. "The machine had no safety guards to prevent such an occurrence," even though it was the custom and usage in the industry, albeit dangerous, to remove plate imperfections in that way (Id., at 379-380). Liability for the failure to provide such a guard could be upheld against the manufacturer, provided that evidence supported absence of the guard as constituting negligence. Though the danger was patent, the Court said: "To this end, we hold that a manufacturer is obligated to exercise that degree of care in his plan or design so as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in the manner for which the product was intended ...as well as an unintended yet reasonably foreseeable use" (Id. at 385-6, citations omitted). 10 Nevertheless, the Court in Micallef took pains to clarify that its analysis "does not compel a manufacturer to clothe himself in the garb of an insurer in his dealings, nor to supply merchandise which is accident proof' (Id., at 386). Potential liability for unintended but reasonably foreseeable use of a product did not originate with the Bolm decisions. Comment k of the Restatement (Second) of Torts, §395 had addressed the need for a manufacturer to "reasonably anticipate other uses than the one for which the chattel is primarily intended," giving examples such as using a chair as a stepstool, or wearing a cocktail robe in the kitchen near an open flame. However, commentators noted the absence of clear demarcation between an "unintended use" that is foreseeable and one that is not. Thus, manufacturers had scant guidance regarding which unintended uses required additional measures, such as guards and/or warnings (see 2 L. Frumer, M. Friedman, C. Sklaren, Products Liability, §16A(4), p. 222 ). As the Courts have noted, "with the benefit of 20-20 hindsight, everything is foreseeable" (Gross v. Empire State Bldg. Assocs., 4 A.D.3d 45,47 [1 st Dept. 2004]; see Sanchez v. State ofNY., 99 N.Y.2d 247,258 [Dissenting Op. of Graffeo, J.] ). Bolm and Micallefeach involved a product in the same allegedly defective condition at the time of the accident as when it left the manufacturer's possession. Thus, nothing in either case supported plaintiffs' claims in Robinson, where the product had been materially changed from its safe condition at the time of sale. 11 Nonetheless, the potential liability for "unintended yet reasonably foreseeable use," expressed in Bolm and adopted in Micallef, became the rallying cry in plaintiff s brief in Robinson. That argument, rejected in Robinson, is now echoed by plaintiff in this case. B. Robinson The plastic molding machine in Robinson had been manufactured by defendant Reed-Prentice with a metal and Plexiglass safety gate completely surrounding the mold. As designed and sold, only after the two platens had been hydraulically joined, the heated plastic injected into the mold, the plastic allowed to cure, and the movable platen returned to its original position, could the safety gate be moved aside to allow removal of the finished product (49 N.Y.2d at 476). This design, however, was deemed unsatisfactory by plaintiffs employer, Plastic Jewel. In order to facilitate the molding of plastic beads onto a nylon thread, Plastic Jewel required a continuous feed of plastic in and out of the mold area (Id., at 477). Accordingly, the employer cut a 6" by 14" hole in the Plexiglass portion of the gate (Id.). It was through this hole that Mr. Robinson's hand somehow found its way between the platens of the mold, resulting in his injury. Evidence suggested that this material alteration of the safety shield was foreseeable to Reed-Prentice; indeed, evidence showed that a service representative of Reed-Prentice who visited the plant saw two other identical 12 machines with holes cut in the Plexiglass shield (Id.; see Record in Robinson, pp. 200-3, 373-7). What is more, plaintiff there argued (Plaintiff's Br. in Robinson, pp. 15-20) that the visit by the manufacturer's service representative included the task of making safety recommendations regarding the machine (Record in Robinson, pp. 1168-1170). Yet, when Plastic Jewel requested Reed-Prentice to offer an alternative to cutting the shield, the manufacturer declined to make any change to its product (Plaintiff's Br. in Robinson, pp. 26-8). Evidence also showed that, for $200, an effective safeguard could have been added that would require both hands of an employee to be on switches in order to enable the platens to converge (Record in Robinson, pp. 740-5). This Court granted leave to appeal from the Judgment entered after plaintiff stipulated to a reduced verdict as ordered by the Appellate Division, which had otherwise affirmed the Judgment in plaintiff's favor. Before this Court, plaintiff (Plaintiff's Br., in Robinson, pp. 30-31) relied extensively on Micallef and other cases involving unintended but reasonably foreseeable use (or, as sometimes phrased, foreseeable misuse) of a product. Tucci v. Bossert, 53 A.D.2d 291(2 l1d Dept. 1976) (water poured into Drano bottle, causing explosion) was cited, as was Merced v. Auto Pak Co., Inc., 533 F.2d 71 (2 l1d Cir. 1976) (hopper door of compactor opened to clear trash blocking chute or electric eye, without turning machine off). 13 Plaintiff in Robinson urged throughout that a foreseeable alteration, no matter how substantial, should be treated as a foreseeable misuse; that foreseeability alone should be the basis for a duty to design a product to prevent or overcome later foreseeable alterations (e.g., Plaintiff's Br. in Robinson, p. 44). C. This Court's Decision in Robinson and the Material Alteration Doctrine This Court in Robinson did more than simply reject plaintiff's arguments. It issued a policy-based limitation on the duty the law will impose upon product manufacturers. After stating a manufacturer's responsibility to avoid sale of a "defectively designed product," i.e., "one which, at the time it leaves the seller's ~ands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use" (49 N.Y.2d at 479, emphasis supplied), the Court said (Id.): "[N]o manufacturer may be automatically held liable for all accidents caused or occasioned by the use of its product (see Wade, A Conspectus ofManufacturers' Liability for Products, 10 Ind L Rev 755, 768). While the manufacturer is under a nondelegable duty to design and produce a product that is not defective, that responsibility is gauged as of the time the product leaves the manufacturer's hands (Restatement, Torts 2d, § 402A, Comments g, p). Substantial modifications of a product from its original condition by a third party which render a safe product defective are not the responsibility of the manufacturer (Proposed Uniform Product Liability Act, §112, subd [D], 44 Fed Reg 62737)" (additional citations omitted). The Court then applied its no-duty ruling to the Robinson claim: 14 "At the time Reed-Prentice sold the molding machine, it was not defective. Had the machine been left intact, the safety gate and connecting interlocks would have rendered this tragic industrial accident an impossibility. . .. While it may be foreseeable that an employer will abuse a product to meet its own self-imposed production needs, responsibility for that willful choice may not fall on the manufacturer. Absent any showing that there was some defect in the design of the safety gate at the time the machine left the practical control of Reed-Prentice (and there has been none here), Reed Prentice may not be cast in damages for strict products liability" (Id., at 479- 480). Of special significance to our case, the Court directly addressed Robinson's reliance on Micallefand the "unintended but reasonably foreseeable use" rationale for liability. Because many products may be used for purposes other than the one for which they were specifically designed, the manufacturer, who is in the best position to do so, must anticipate reasonably foreseeable uses and design its product so as to avoid "unreasonable danger to users" (Id. at 480). An example suggested was a screwdriver being used to pry open the lid of a can, imposing on manufacturers a duty to manufacture the shank with sufficient strength to accomplish that task (Id.). Totally different is the post-sale, material alteration of a product by third parties. Although a manufacturer has a duty to design a safe product, it does not have a duty to keep it safe forever. As this Court put it: 15 "The manufacturer's duty... does not extend to designing a product that is impossible to abuse or one whose safety features may not be circumvented. A manufacturer need not incorporate safety features into its product so as to guarantee that no harm will come to every user no matter how careless or even reckless. Nor must he trace his product through every link in the chain of distribution to insure that users will not adapt the product to suit their own unique purposes. The duty of a manufacturer, therefore, is not an open-ended one. It extends to the design and manufacture of a finished product which is safe at the time of sale. Material alterations at the hands of a third party which work a substantial change in the condition in which the product was sold by destroying the functional utility of a key safety feature, however foreseeable that modification may have been, are not within the ambit of a manufacturer's responsibility. Acceptance of plaintiff's concept of duty would expand the scope of a manufacturer's duty beyond all reasonable bounds and would be tantamount to imposing absolute liability on manufacturers for all product-related injuries (see Henderson, Judicial Review ofManufacturers' Conscious Design Choices: The Limits of Adjudication, 73 Col L Rev 1531)" (Id., at 480-1; additional citations omitted). A crucial basis of this Court's analysis in Robinson is its repeated reference to the absence of a duty on the part of manufacturers to design a product which is unalterable. Nor does the manufacturer have a duty to trace its product after sale to ascertain that no significant alterations will be made, or to affirmatively prevent subsequent users from removing safety mechanisms that were in place at the time of sale and that would have avoided the danger later realized. It is precisely this recognition of the absence of duty that rendered irrelevant the evidence that the 16 alteration in Robinson was foreseeable (see Gallub, Limiting the Manufacturer's Duty for Subsequent Product Alteration: Three Steps to a Rational Approach, 16 Hofstra L. Rev. 361, 413-420, 441, et seq. [Winter 1988]; Hoenig, The Law of Manufacturing and Design Defect Liability, 1 Products Liability in N.Y., [2nd Ed.], §1.27). As this Court has observed, although foreseeability may help to determine the scope of a duty, once such duty is determined to exist, it cannot itself create or define a duty (see, e.g., Holdampfv. A.C. & S., Inc. [In re New York City Asbestos Litig.), 5 N.Y.3d 486, 493-4 ; Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232 ; Pulka v. Edelman, 40 N.Y.2d 781, 785 ). What is more, those cases, and others, reflect this Court's reluctance to expand concepts of duty that would impose on defendants the obligation to control the conduct of third parties (Holdampf, supra; Hamilton, supra, 96 N.Y.2d at 232- 3; Pulka, supra, 40 N.Y.2d at 785-6; see also Purdy v. Public Admin. ofCounty of Westchester, 72 N.Y.2d 1,8 ; D'Amico v. Christie, 71 N.Y.2d 76,88 ). That reluctance inheres in Robinson, as well. Manufacturers do not have a duty to control and prevent users of a product, which was safe at the time of sale, from materially altering or modifying the product, including especially someone else's removal or compromise of a safety guard. 17 D. The Continued Vitality and Importance of the Robinson Material Alteration Doctrine Cases decided subsequent to Robinson by this Court and, in most instances, by the departments of the Appellate Division, continue to reflect and reconfirm the public-policy based refusal to permit liability for failure to design a product that would prevent material alterations (see, e.g., Amatulli v. Delhi Constr. Corp., 77 N.Y.2d 525  [above-ground pool's configuration change through below- ground installation constitutes material alteration, barring design defect claim]; Vega v. Stimsonite Corp., 11 A.D.3d 451 [2nd Dept. 2004], app dsmsd 4 N.Y.3d 759 , app dsmd 6 N.Y.3d 805 ; Patino v. Lockformer Co., 303 A.D.2d 731 [2nd Dept. 2003]; Felle v. W. W. Grainger, Inc., 302 A.D.2d 971 [4th Dept. 2003] [key built-in safety devices of grinder defeated by modification]; Burns v. Haines Equip., Inc., 284 A.D.2d 922 [4th Dept. 2001] [built-on guard covering moving chain of loading machine removed post-sale]; Ryan v. Arrow Leasing Corp., 260 A.D.2d 565 [2nd Dept. 1999] [clevis pin in post-hole digger replaced, post-sale, with bolt]; Mackney v. Ford Motor Co., 251 A.D.2d 298 [2nd Dept. 1998] [user bypassed neutral safety starter switch]; Wyda v. Makita Elec. Works, 232 A.D.2d 407 [2nd Dept. 1996] [Saw's movable blade guard wedged open by plaintiffs employer]; Moore v. Deere & Co., 195 A.D.2d 1044 [4th Dept. 1993] [removal post-sale of safety shield covering rotating driveline]; Wood v. Peabody Int'l Corp., 187 A.D.2d 824 [3 rd Dept. 1992] [removal by City of built-in safety 18 latches, which became damaged by being stuck in the mud, is a material alteration precluding design defect product liability, even if foreseeable]; Van Buskirk v. Migliorelli, 185 A.D.2d 587 [3 rd Dept.], app denied 80 N.Y.2d 761  [guard covering rotating power takeoff driveline of forage wagon removed]; Darsan v. Guncalito Corp., 153 A.D.2d 868 [2nd Dept. 1989] [removal of grinder's built-on guard is a material modification, barring design defect claims]; Magee v. E. W. Bliss, 120 A.D.2d 926 [4th Dept. 1986] [change in activation system destroyed utility of safety measures]; see also Wick v. Wabash Holding Corp., 801 F. Supp. 2d 93 [W.D.N.Y. 2010]; Kromer v. Beazer East, Inc., 826 F. Supp. 78 [W.D.N.Y. 1993]). Exceptions to the Robinson rule have been few and were narrowly drawn. Even when exceptions were made, this Court clearly reiterated and reconfirmed the ruling in Robinson and its underlying policy considerations. The material alteration doctrine continues to be a vital ingredient in New York's law applicable to design defect. As we now show, none of those post-Robinson exceptions apply to this case. 1. The Sage "Exception" A few unique decisions which distinguish Robinson are not truly exceptions at all. Rather, they apply the requirement in Robinson that the alteration or 19 modification must be material or substantial. Such cases are illustrated by this Court's decision in Sage v. Fairchild-Swearingen Corp., 70 N.Y.2d 579 (1987). In Sage, the door of the cargo compartment of an airplane was equipped with a ladder (missing at the time of the accident) which was attached to the door by hangers. Plaintiff was injured while exiting the compartment when her finger was caught on one of the hangers protruding into the doorway. She claimed that the design of the aircraft was defective in the placement of the U or V-shaped ladder hanger (Id., at 583). Defendant manufacturer invoked Robinson because the particular hanger upon which plaintiff was injured was replaced post-sale by an identically designed hanger manufactured by another (Id., at 583-4). This Court sustained the claim of design defect because the claim involved defective design of the hanger/doorway configuration. Thus, "the hanger design was not altered" and "it was the manufacturer's defective design - - both of the hanger and of the compartment doorway - - which caused injury" (Id., at 586-7). In Sage, the alteration simply was not material to the alleged defect in design. There was no claim of a mechanical flaw in the replacement hanger; the placement of the replacement simply continued the manufacturer's defective design of the hanger/doorway configuration (see also Lamey v. Foley, 188 A.D.2d 157 [4th Dept. 1993] [modification to allegedly defectively unstable ATV, which 20 increased speed and durability, may not have modified stability, the absence of which was the claimed design defect]). Here, of course, there is no question that removal of the guard and failure to replace it for years constituted a material alteration. All agreed that, had the guard remained on the post-hole digger, or had it been replaced by one of the same design, the accident would not have occurred (RI851, R3225). It was the removal and failure to replace the guard - - a material alteration - - that caused the Hoover accident. This case is Robinson, not Sage. 2. The Lopez "Exception" In Lopez v. Precision Papers, 67 N.Y.2d 871 (1986), aff'g 107 A.D.2d 667 (2nd Dept. 1985), plaintiff was injured when a large roll of paper, which plaintiff was lifting to a high shelf in a warehouse with a "hi-lo" forklift, fell upon him (107 A.D.2d 667). The hi-lo had been manufactured and supplied with a detachable overhead guard. It was conceded (Defendant's Reply Br. in Lopez, pp. 3-4) that the hi-10 was designed by the manufacturer to be used both with the guard, in warehouse settings, where materials might be lifted over the head of the operator, and without the guard, to allow entry into trucks to unload shipped products. The latter could not be accomplished with the guard attached (Appendix in Lopez, p. 77; see Respondent's Appendix in Lopez, p. 12). This Court held Robinson would 21 not bar the claim since "the forklift was purposefully manufactured to permit its use without the safety guard" (67 N.Y.2d at 873). Viewed in context, and appropriately limited to the result reached by this Court, Lopez also is not a true exception. There was no material alteration. There was no "significant physical change to the configuration or composition" of the hi- 10 (see Joblon v. Solow, 91 N.Y.2d 457, 465 ; Weininger v. Hagedorn & Co., 91 N.Y.2d 958, 960 ). Rather, there was merely the "routine activity" of removing the overhead guard to remove pallets from a truck (see Weininger, supra). The subsequent use of the hi-lo in the warehouse setting without the guard can thus be viewed as an unintended use of the hi-lo in that condition - - but a condition that was fully intended for the hi-lo when used to unload a truck. Unintended but reasonably foreseeable use continues to be governed by Micallef, supra, not Robinson (see Barnhard v. Cybex Int'l, Inc., 89 A.D.3d 1554 [4th Dept. 2011 ] [use of leg extension exercise machine to stretch one's arms unintended but foreseeable use]; Small v. Keneston, 57 A.D.3d 1262 [3rd Dept. 2008] [people riding in cargo area of a box truck is an unintended and not reasonably foreseeable use]; see also Tucci v. Bossert, supra, 53 A.D.2d 29 [pouring water into can of Drano reasonably foreseeable]). Cases subsequent to Lopez, both those which permitted the claim of design defect to proceed and those which did not, limit application of the Lopez 22 "exception" to circumstances where the manufacturer intended the use of the product with the detachable portion of the product removed (see, e.g., LaPaglia v. Sears Roebuck & Co., 143 A.D.2d 173 [2nd Dept. 1988] [removable grass catcher gave lawnmower added versatility]; McAvoy v. Outboard Marine Corp., 134 A.D.2d 245 [2nd Dept. 1987] [same]; see also, Masiello v. Efficiency Devices, Inc.. 6 A.D.3d 672 [2nd Dept. 2004] [design defect claim dismissed; safety device not designed "to be easily removed for convenience in using the machine"]; Burns v. Haines Equip., Inc., 284 A.D.2d 922 [4th Dept. 2001]; Klein v. Hyster Co., 255 A.D.2d 425, 426 [2nd Dept. 1998] [that retaining pin was removable to permit adjustment of forks of a forklift does not permit invocation of Lopez, since "the forklift was not purposely manufactured to allow its use without the retaining pin"]; Wyda v. Makita Elec. Works, supra, 232 A.D.2d 407 ["the exception (to Robinson) carved out by Ayala v. V & 0 Press Co.(126 A.D.2d 229) and Lopez, (supra) .. .(applies where) the safety features on the machine in question were designed to be removable, and the machines were designed to operate in the absence ofthe safety features," emphasis supplied]; Van Buskirk, supra, 185 A.D.2d at 590 [design defect claim dismissed; no evidence that "defendant sought a competitive advantage by purposefully manufacturing a removable guard"]; Darsan, supra, 153 A.D.2d at 870 [attachment of guard with rivets, and stated 23 purpose of guard to be "sealed in," evidenced no intention to use grinder without guard, and barred claim of design defect]). Some courts have mistakenly applied Lopez to circumstances in which the machine was designed to permit removal of a safety device solely for cleaning or maintenance, but not to use the machine without the safety feature (e.g., Rios v. Rockwell Int'l Corp., 268 A.D.2d 279 [1 st Dept. 2000] [safety guard intended to be removed to facilitate maintenance]; Tuesca v. Rando Mach. Corp., 226 A.D.2d 157 [1 st Dept. 1996] [guard intended to be removed to clean machine]). Respectfully such reasoning is erroneous. In those cases, no use of the machine was contemplated without a guard. Removability for purpose of cleaning or maintenance promotes and ensures continued efficiency, durability and value of the equipment. And, non-removability of a damaged component of a large machine would require discarding the entire machine, a clearly untenable result. Yet, in this case, even that erroneous standard for application of the Lopez exception cannot be met. Here, there was no intention on the part of the manufacturer to have anyone remove the guard. Indeed, warnings held sufficient as a matter of law admonished not to use the machine without the guard.4 4 Any suggestion that the Robinson material alteration doctrine would not apply so long as a safety device were physically "removable" is clearly wrong (see Klein v. Hyster Co., supra). Such an approach would eviscerate Robinson and result in imposing limitless liability upon manufacturers. All machines, by definition, have multiple interconnected pieces (Webster's Encyclopedic Unabridged Dictionary of the English Language , p. 1151), which can by some means be separated. Robinson excluded a responsibility to follow the product and control 24 3. The Liriano Exception A true exception to the Robinson material alteration doctrine was carved out by this Court in response to the Second Circuit's certified questions in Liriano v. Hobart Corp., 92 N.Y.2d 232 (1998). This Court ruled that material alteration to a meat grinder by removing an attached guard, although warranting dismissal of claims of design defect, would not necessarily control dismissal of claims of failure to warn (Id., at 239-241). Nevertheless, the Court "emphasize[d]" that warnings of the dangers of a material alteration are not universally required, and a claim of failure to warn of such alteration does not necessarily raise an issue of fact: "[A] safety device built into the integrated final product is often the most effective way to communicate that operation of the product without the device is hazardous" (Id., at 241). Accordingly, for example, where the injured party is fully aware of the hazard, or where the hazard is patent and obvious, as a matter of law, no claim of failure to warn will be sustained (Id., at 241-2). The actual holding in Liriano regarding warnings is of no moment here. In Hoover, as a matter of law, no claim of failure to warn can be sustained; at this stage, this case is a pure design defect claim. Nonetheless, what is instructive in the conduct of its subsequent users/abusers. Permitting design liability for mere "removability" would render Robinson of no value (see Gallub, op cit., pp. 462-3). 25 Liriano is this Court's restatement and emphasis that the Robinson material alteration doctrine fully applies to claims of design defect: "The Court's rationale in Robinson stemmed from the recognition that a manufacturer is responsible for a 'purposeful design choice' that presents an unreasonable danger to the user. This responsibility derives from the manufacturer's superior position to anticipate reasonable uses of its product and its obligation to design a product that is not harmful when used in that manner. However, this duty is not open-ended, and it is measured as of the time the product leaves the manufacturer's premises. Thus, a manufacturer is not required to insure that subsequent owners and users will not adapt the product to their own unique uses. That kind of obligation is much too broad and would effectively impose liability on manufacturers for all product-related injuries .... "The existence of a design defect involves a risk/utility analysis that requires an assessment of whether 'if the design defect were known at the time of manufacture, a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner.' Such an analysis would be unreasonably complicated, and may very well be impossible to measure, if a manufacturer has to factor into the design equation all foreseeable post-sale modifications. Imposition of a duty that is incapable of assessment would effectively result in the imposition of absolute liability on manufacturers for all product-related injuries. This Court has drawn a policy line against that eventuality" (92 N.Y.2d at 238-9; citations omitted). Thus, far from undermining the application ofRobinson to design defect claims, this Court confirmed the policy considerations underlying application of the material alteration doctrine where a design defect is claimed. Courts since 26 Liriano have recognized this clear distinction, and, even when sustaining a claim for alleged failure to warn, have dismissed claims of design defect (e.g., Bauerlein v. Salvation Army, 74 A.D.3d 851 [2nd Dept. 2010]). Here, there is no failure to warn claim to sustain; the only remaining claim is of design defect. Robinson is clearly applicable and dismissal is warranted. E. That the Guard Was Damaged Over Years of Use Before Being Removed - - But Not Replaced - - Many Years Prior to the Accident, Does Not Render Robinson Inapplicable Finally, the fact that the guard was removed after it became worn during use is unavailing. This case does not involve catastrophic failure of a guard resulting in injury, nor does it claim a manufacturing defect in the guard itself (see, e.g., Neri v. John Deere Co., 211 A.D.2d 915 [3 rd Dept. 1995] [pin connecting guard slipped out of position, exposing power shaft]). Rather, the absence of the guard here, and continued use of the post-hole digger despite express warnings not to do so, long preceded the accident. Plaintiff's argument here, if adopted, would place upon manufacturers the impossible burden of designing products with components that do not wear out. Yet, courts repeatedly have held that this is not a manufacturer's duty (see Aparicio v. Acme Am. Repair, Inc., 33 A.D.3d 480 [1 st Dept. 2006]; Diaz v. Marriott Int'l, 251 A.D.2d 367 [2nd Dept. 1998]; Mayorga v. Reed-Prentice Packaging Mach. Co., 238 A.D.2d 483, 484 [2nd Dept. 1997]; Auld v. Sears, 27 Roebuck & Co., 261 App. Div. 918 [2lld Dept. 1941]). That a metal guard might have lasted longer is irrelevant. It is not the wearing out of the guard, but its removal, the purposeful refusal of the owner to provide a replacement, and the continued use of the machine without the guard over a number of years contrary to express warnings by the manufacturer, which warrant application of the Robinson doctrine. Were such acts by users of products ignored, product liability would be unlimited. For example, tires wear out; so do brake linings. Bumpers can be damaged during use. Were someone to remove those worn or damaged items, but refuse to replace them because they will only wear out again (see R65 81), any injury caused by continued use of the automobile without such components could not be blamed on the manufacturer. This Court in Liriano recognized, as noted earlier, that the failure to apply Robinson in a design defect claim would force every manufacturer to factor into its design choice of all products every potential subsequent alteration, rendering the risk/utility assessment impossible, and in tum placing an insurer's responsibility on manufacturers for all product-related injuries. That same concern would be manifest were a manufacturer required to design its product so that none of the hundreds or thousands of parts comprising its product, such as an automobile, ever wear out, lest the ultimate consumer fails, despite warnings, to replace the component. 28 CONCLUSION Robinson reflects a thoughtful, pragmatic and repeatedly-expressed concern by this Court that manufacturers' design liability be limited to reasonably safe product designs at the time of sale. A manufacturer is not required to trace its product into the hands of the ultimate consumer to ascertain that safety features sufficient to prevent an accident not be removed without replacement. PLAC believes that concern reflects a balanced approach to the already generous law of design liability. Sustaining the courts below would severely undermine Robinson and place upon all manufacturers impossible burdens - - to design products with safety mechanisms that will never wear out and which are incapable of being removed. This State's law wisely has rejected imposition of any such duty. It would be unwise and inconsistent with this Court's established policy rationales. The lower Courts should be reversed and the Complaint dismissed. Respectfully submitted, HERZFELD & RUBIN, P.C. Attorneys for Proposed Amicus Curiae The Product Liability Advisory Council, Inc. 125 Broad Street New York, New York 10004 (212) 471-8500 mhoeni herzfeld-rubin.com By: 29 HUGH F. YOUNG, JR. JONATHAN M. HARRISON MICHAEL HOENIG DAVID B. HAMM Of Counsel HUGH F. YOUNG, JR., ESQ. The Product Liability Advisory Council, Inc. 1850 Centennial Park Drive, Suite 510 Reston, VA 20191-1517 (703) 264-5300 30 APPENDIX A Corporate Members of the Product Liability Advisory Council as of 12/20/2013 Total: 104 3M Altec, Inc. Altria Client Services Inc. Anadarko Petroleum Corporation AngioDynamics, Inc. Ansell Healthcare Products LLC Astec Industries Bayer Corporation BIC Corporation Biro Manufacturing Company, Inc. BMW of North America, LLC Boehringer Ingelheim Corporation The Boeing Company Bombardier Recreational Products, Inc. Bridgestone Americas, Inc. Brown-Forman Corporation Caterpillar Inc. CC Industries, Inc. Celgene Corporation Chrysler Group LLC Cirrus Design Corporation CNH America LLC Continental Tire the Americas LLC Cooper Tire & Rubber Company Crane Co. Crown Cork & Seal Company, Inc. Crown Equipment Corporation Daimler Trucks North America LLC Deere & Company Delphi Automotive Systems Discount Tire The Dow Chemical Company E.!. duPont de Nemours and Company Eisai Inc. Eli Lilly and Company Emerson Electric Co. Engineered Controls International, LLC Exxon Mobil Corporation Ford Motor Company General Electric Company General Motors LLC Georgia-Pacific Corporation GlaxoSmithKline The Goodyear Tire & Rubber Company Great Dane Limited Partnership Harley-Davidson Motor Company Honda North America, Inc. Hyundai Motor America Isuzu North America Corporation Jaguar Land Rover North America, LLC Jarden Corporation Johnson & Johnson Johnson Controls, Inc. Kawasaki Motors Corp., U.S.A. KBR, Inc. Kia Motors America, Inc. Kolcraft Enterprises, Inc. Lincoln Electric Company Lorillard Tobacco Co. Magna International Inc. Mazak Corporation Mazda Motor of America, Inc. Medtronic, Inc. Merck & Co., Inc. Meritor WABCO Michelin North America, Inc. Microsoft Corporation Mine Safety Appliances Company Corporate Members of the Product Liability Advisory Council as of 12/20/2013 Mitsubishi Motors North America, Inc. Mueller Water Products Novartis Pharmaceuticals Corporation Novo Nordisk, Inc. PACCAR Inc. Panasonic Corporation of North America Peabody Energy Pella Corporation Pfizer Inc. Pirelli Tire, LLC Polaris Industries, Inc. Porsche Cars North America, Inc. RJ Reynolds Tobacco Company SABMilier PIc Schindler Elevator Corporation SCM Group USA Inc. Shell Oil Company The Sherwin-\Villiams Company Smith & Nephew, Inc. St. Jude Medical, Inc. Stanley Black & Decker, Inc. Subaru of America, Inc. TASER International, Inc. Techtronic Industries North America, Inc. Teva Pharmaceuticals USA, Inc. TK Holdings Inc. Toyota Motor Sales, USA, Inc. Vermeer Manufacturing Company The Viking Corporation Volkswagen Group of America, Inc. Volvo Cars of North America, Inc. Wal-Mart Stores, Inc. Whirlpool Corporation Yamaha Motor Corporation, U.S.A. Yokohama Tire Corporation Zimmer, Inc.