APL-2014-00209
New York County Clerk’s Index No. 190196/10
Court of Appeals
STATE OF NEW YORK
IN THE MATTER OF NEW YORK CITY ASBESTOS LITIGATION
DORIS KAY DUMMIT, Individually and as Executrix
of the Estate of RONALD DUMMIT, deceased,
Respondents,
against
A.W. CHESTERTON, et al.,
Defendants,
and
CRANE CO.,
Appellant.
>> >>
BRIEF OFAMICUS CURIAE PRODUCT
LIABILITY ADVISORY COUNCIL, INC. IN
SUPPORT OF APPELLANT CRANE CO.
James M. Beck, p.h.v. app. pending
REED SMITH LLP
Three Logan Square
1717 Arch Street, Suite 3100
Philadelphia, Pennsylvania 19103
215-851-8168
David J. Bird, p.h.v. app. pending
REED SMITH LLP
225 Fifth Avenue
Pittsburgh, Pennsylvania 15222
412-288-3131
Daniel K. Winters, N.Y. Bar #2679785
REED SMITH LLP
599 Lexington Avenue, 22nd Floor
New York, New York 10022
212-521-5400
Of Counsel:
Hugh F. Young, Jr.
Product Liability
Advisory Council, Inc.
1850 Centennial Park Drive,
Suite 510
Reston, Virginia 20191
703-264-5300
Counsel for Amicus Curiae Product Liability Advisory Council, Inc.
Date Completed: October 23, 2015
i
DISCLOSURE STATEMENT PURSUANT TO RULE 500.1(f)
The Product Liability Advisory Council, Inc. (“PLAC”) is a non-profit
corporation with no parents, subsidiaries, or affiliates. It has 104 corporate
members from a broad cross-section of American and international product
manufacturers. See Attachment “A” (listing PLAC’s corporate members as of
September, 2015). In addition, several hundred leading product liability defense
attorneys are sustaining (non-voting) members of PLAC.
ii
TABLE OF CONTENTS
TABLE OF AUTHORITIES ................................................................................... iv
STATEMENT OF INTEREST OF AMICUS CURIAE PRODUCT
LIABILITY ADVISORY COUNCIL, INC. ................................................... 1
QUESTIONS PRESENTED ...................................................................................... 3
STATEMENT OF THE CASE .................................................................................. 4
SUMMARY OF ARGUMENT ................................................................................. 4
ARGUMENT ............................................................................................................. 6
I. This Court Should Re-Affirm Rastelli And Hold That Crane Did Not
Have A Legal Duty To Warn About Hazards Posed By
Asbestos-Containing Products Manufactured And Distributed By
Others. .............................................................................................................. 6
A. The Court Has Adopted A Policy Of “Judicial Resistance”
Towards Novel Tort Duties, Especially Ones That Appear
Vague, Ill-Defined, And Expansive................................................. 10
B. An Expansive Duty To Warn Of Hazards Posed By Others’
Products Should Be Created Only by Legislative Action, Not
Judicial Decree. ................................................................................ 12
C. An Expansive Duty To Warn About Hazards Posed By
Others’ Products Would Contravene Traditional Tort
Principles, Create Insurer-Like Liability For A Wide Range
Of Defendants, And Impose Enormous Costs On Consumers
And Society. ..................................................................................... 23
D. Numerous Courts Outside Of New York Have Held That A
Defendant Does Not Have An Expansive Duty To Warn
About Hazards Posed By Others’ Products. .................................... 33
II. This Court Should Reject The Heeding Presumption Charged By The
Supreme Court Because It Reverses The Burden Of Proof On
Causation, Contrary To This Court’s Precedent. .......................................... 44
iii
A. Under New York Law Plaintiff Bears The Burden Of Proving
Causation In Warning-Based Product Liability Actions. ................ 47
B. A Heeding Presumption Makes No Sense As A “Corollary”
To The American Law Institute’s Now Repudiated
“Assumption” That Adequate Warnings Will Be Read And
Heeded. ............................................................................................ 60
C. A Heeding Presumption Cannot Be Justified On “Public
Policy” Grounds. .............................................................................. 66
CONCLUSION ........................................................................................................ 75
Attachment A: Corporate Members of the Product Liability Advisory
Council, As Of September 25, 2013 .............................................................. 76
iv
TABLE OF AUTHORITIES
Cases
210 E. 86th St. Corp. v. Combustion Engineering,
821 F. Supp. 125 (S.D.N.Y. 1993) ................................................................ 20
Abate v. AAF-McQuay, Inc., 2013 WL 812066
(Conn. Super. Jan. 29, 2013) ......................................................................... 39
Abbay v. Armstrong Int’l, Inc., 2012 WL 975837
(E.D. Pa. Feb. 29, 2012) ................................................................................ 35
Ackermann v. Wyeth Pharmaceuticals, 526 F.3d 203
(5th Cir. 2008) ............................................................................................... 72
Acoba v. General Tire, Inc., 986 P.2d 288 (Haw. 1999) ......................................... 40
Adesina v. Aladan Corp., 438 F. Supp.2d 329 (S.D.N.Y. 2006) ............................. 58
Alexander v. A.W. Chesterton Co., 2014 WL 7190244
(C.C.P. Ohio July 23, 2014) .......................................................................... 42
Alston v. Caraco Pharmaceutical, Inc., 670 F. Supp.2d 279
(S.D.N.Y. 2009) ............................................................................................. 51
Amatulli by Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525,
569 N.Y.S.2d 337, 571 N.E.2d 645 (1991) ................................................... 24
Anderson v. Hedstrom Corp., 76 F. Supp.2d 422 (S.D.N.Y. 1999) ........ 54,58,59,65
Applebee v. State, 308 N.Y. 502, 127 N.E.2d 289 (1955) ....................................... 59
Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192 (Mo. 1992) ................................... 65
Ayala v. V & O Press Co., 126 A.D.2d 229, 512 N.Y.S.2d 704
(2d Dept. 1987) .............................................................................................. 29
Baker v. St. Agnes Hospital, 70 A.D.2d 400, 421 N.Y.S.2d 81
(2d Dept. 1979) ........................................................................................ 53,54
Banks v. Makita U.S.A., 226 A.D.2d 659, 641 N.Y.S.2d 875
(2d Dept. 1996) .............................................................................................. 50
Baughman v. Gen. Motors Corp., 780 F.2d 1131 (4th Cir. 1986) ........................... 43
Bee v. Novartis Pharmaceuticals Corp., 18 F. Supp.3d 268
(E.D.N.Y. 2014) ............................................................................................. 58
Beece v. Guardian Life Insurance Co., 110 A.D.2d 865,
488 N.Y.S.2d 422 (2d Dept. 1985) ................................................................ 47
v
Begley v. Prudential Ins. Co., 1 N.Y.2d 530, 154 N.Y.S.2d 866,
136 N.E.2d 839 (1956) .................................................................................. 73
Bellantoni v. General Motors Corp., 2012 WL 1948779
(Mag. S.D.N.Y. May 3, 2012), adopted, 2012 WL 1948868 (S.D.N.Y.
May 30, 2012) ................................................................................................ 29
Berkowitz v. A.C. & S., Inc., 288 A.D.2d 148, 733 N.Y.S.2d 410
(1st Dept. 2001) ............................................................................................. 31
Bernhardt v. Ford Motor Co., 2010 WL 3005580
(Del. Super. July 30, 2010) ............................................................................ 40
Black v. Rawlings Construction Co., 1997 WL 150121
(S.D.N.Y. March 28, 1997) ........................................................................... 29
Blake v. Neighborhood Housing Services, 1 N.Y.3d 280,
771 N.Y.S.2d 484, 803 N.E.2d 757 (2003) ................................................... 48
Bloxom v. Bloxom, 512 So.2d 839 (La. 1987) ......................................................... 65
Board of Managers v. Town of Amherst, 23 N.Y.3d 168,
12 N.E.3d 1072, 989 N.Y.S.2d 642 (2014) ................................................... 72
Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357,
461 N.E.2d 843 (1984) .................................................................................. 13
Braaten v. Saberhagen Holdings, 198 P.3d 493 (Wash. 2008) ......................... 36,37
Bravman v. Baxter Healthcare Corp., 984 F.2d 71 (2d Cir. 1993) ......................... 51
Brenner v. American Cyanamid Co., 263 A.D.2d 165,
699 N.Y.S.2d 848 (4th Dept. 1999) ............................................................... 20
Brignoli v. Balch, Hardy & Scheinman, Inc., 178 A.D.2d 290,
577 N.Y.S.2d 375 (1st Dept. 1991) ............................................................... 47
Brown v. Drake-Willock Int’l, Ltd., 530 N.W.2d 510
(Mich. App. 1995) ......................................................................................... 41
Burgos v. Aqueduct Realty Corp., 92 N.Y.2d 544,
684 N.Y.S.2d 139 (1998) ............................................................................... 48
Bushong v. Garman Co., 843 S.W.2d 807 (Ark. 1992) ........................................... 65
Butz v. Werner, 438 N.W.2d 509 (N.D. 1989) ........................................................ 65
Cabasug v. Crane Co., 989 F. Supp.2d 1027 (D. Haw. 2013) ................................ 36
Calderon v. Machinenfabriek Bollegraaf Appingedam BV,
667 A.2d 1111 (N.J. Super. App. Div. 1995) ................................................ 73
vi
Campbell v. A.W. Chesterton Co., 2012 WL 5392873
(E.D. Pa. Oct. 16, 2012) ................................................................................ 35
Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439,
982 N.Y.S.2d 40, 5 N.E.3d 11 (2013) ........................................................... 22
Catherwood v. American Sterilizer Co., 139 Misc.2d 901,
532 N.Y.S.2d 216 (Sup. Erie Co. 1988) ........................................................ 20
Christopher v. Cutter Laboratories, 53 F.3d 1184 (11th Cir. 1995) ....................... 69
Cochran v. Dinsmore, 49 N.Y. 249, 4 Sickels 249 (1872) ...................................... 46
Codling v. Paglia, 32 N.Y.2d 330, 345 N.Y.S.2d 461,
298 N.E.2d 622 (1973) ....................................................................... 17,24,25
Coffman v. Keene Corp., 628 A.2d 710 (N.J. 1993) .......................................... 65,66
Cohen v. St. Regis Paper Co., 64 N.Y.2d 656, 485 N.Y.S.2d 246,
474 N.E.2d 606 (1984) .................................................................................. 45
Conner v. Alfa Laval, Inc., 842 F. Supp.2d 791 (E.D. Pa. 2012) ............................ 35
Cover v. Cohen, 61 N.Y.2d 261, 461 N.E.2d 864,
473 N.Y.S.2d 378 (1984) ............................................................................... 62
Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614
(Pa. Super. 1999) ..................................................................................... 66,73
Craven v. Niagara Machine & Tool Works, Inc., 417 N.E.2d 1165
(Ind. App. 1981) ............................................................................................ 73
Crews v. Air & Liquid Sys. Corp., 2014 WL 639685
(N.D.N.Y. Feb. 18, 2014) .............................................................................. 36
Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401
(N.D. 1994) .................................................................................................... 73
Cunningham v. Charles Pfizer & Co., 532 P.2d 1377 (Okla. 1974) ....................... 65
Cuntan v. Hitachi KOKI USA, Ltd., 2009 WL 3334364
(E.D.N.Y. Oct. 15, 2009) ............................................................................... 52
Dalton v. 3M Co., 2013 WL 4886658 (D. Del. Sept. 12, 2013),
adopted, 2013 WL 5486813 (D. Del. Oct. 1, 2013). ..................................... 41
Davids v. Novartis Pharmaceuticals Corp., 857 F. Supp.2d 267
(E.D.N.Y. 2012) ............................................................................................. 59
Deere & Co. v. Grose, 586 So. 2d 196 (Ala. 1991) ................................................. 69
vii
DeJesus v. Craftsman Machinery Co., 548 A.2d 736
(Conn. App. 1988) ......................................................................................... 69
Derienzo v. Trek Bicycle Corp., 376 F. Supp.2d 537 (S.D.N.Y. 2005) .................. 54
Devries v. Gen. Elec. Co., 2014 WL 6746960 (E.D. Pa. Oct. 3, 2014) ................... 35
Dole Food Co. v. North Carolina Foam Industries, Inc.,
935 P.2d 876 (Ariz. App. 1996) .................................................................... 65
Dombrowski v. ALFA Laval, Inc., 2010 WL 4168848
(Mass. Super. July 1, 2010) ........................................................................... 41
Donnelly v. Kerr-McGee Ref. Corp., 1992 WL 208016
(W.D. Okla. April 13, 1992), aff’d, 993 F.2d 1551
(10th Cir. 1993) ............................................................................................. 42
Eagle-Picher Industries, Inc. v. Balbos, 604 A.2d 445 (Md. 1992) ........................ 65
Estrada v. Berkel Inc., 14 A.D.3d 529, 789 N.Y.S.2d 172
(2d Dept. 2005) .............................................................................................. 49
Exxon Shipping Co. v. Pacific Resources, Inc., 789 F. Supp. 1521
(D. Haw. 1991) .............................................................................................. 40
Faddish v. Buffalo Pumps, 881 F. Supp.2d 1361 (S.D. Fla. 2012) ......................... 40
Festa v. Worthington Pumps, Inc., 2014 WL 6746820
(E.D. Pa. Oct. 10, 2014) ................................................................................ 35
Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107 (3d Cir. 1992) ................................ 42
Floyd v. Air & Liquid Sys. Corp., 2012 WL 975615
(E.D. Pa. Feb. 8, 2012) .................................................................................. 35
Forbes v. Midwest Air Charter, Inc., 711 N.E.2d 997 (Ohio 1999) ........................ 73
Ford Motor Co. v. Boomer, 736 S.E.2d 724 (Va. 2013) ......................................... 70
Ford Motor Co. v. Wood, 703 A.2d 1315 (Md. App. 1998).................................... 41
Fortier v. A.O. Smith Corp., 2009 WL 455424
(Conn. Super. Jan. 13, 2009) ......................................................................... 39
G.E. Capital Corp. v. A.O. Smith Corp., 2003 WL 21498901
(S.D.N.Y. July 1, 2003) ................................................................................. 58
Garman v. Magic Chef, Inc., 173 Cal. Rptr. 20 (Cal. App. 1981) .......................... 38
George Foltis, Inc. v. City of New York, 287 N.Y. 108,
38 N.E.2d 455 (1941) .................................................................................... 57
viii
Goldych v. Eli Lilly & Co., 2006 WL 2038436
(N.D.N.Y. July 19, 2006) .............................................................................. 32
Golonka v. General Motors Corp., 65 P.3d 956 (Ariz. App. 2003) ........................ 73
Granata v. Sub-Zero Freezer Co., 12 Misc.3d 1155(A),
819 N.Y.S.2d 210, 2006 WL 1358468
(Sup. Richmond Co. 2006), aff’d, 43 A.D.3d 996,
841 N.Y.S.2d 469 (2d Dept. 2007) ................................................................ 51
Graves v. Church & Dwight Co., 631 A.2d 1248
(N.J. App. Div. 1993) .................................................................................... 73
Green v. William Penn Life Insurance Co., 12 N.Y.3d 342,
879 N.Y.S.2d 822, 907 N.E.2d 700 (2009) ................................................... 48
Hall v. United Parcel Serv. of America, Inc., 76 N.Y.2d 27,
556 N.Y.S.2d 21, 555 N.E.2d 273 (1990) ..................................... 14,16,22,74
Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 727 N.Y.S.2d 7, 10,11,12,18
750 N.E.2d 1055 (2001) ..................................................................... 19,20,21
Harlow v. Chin, 545 N.E.2d 602 (Mass. 1989) ....................................................... 65
Harris v. Ajax Boiler, Inc., 2014 WL 3101941
(W.D.N.C. July 7, 2014) ................................................................................ 42
Harris v. International Truck & Engine Corp., 912 So. 2d 1101
(Miss. App. 2005) .......................................................................................... 69
Hayes v. New York, 2013 WL 5278879 (N.D.N.Y. Sept. 18, 2013) ....................... 51
Henry v. American Honda Motor Co., 2014 WL 6910490
(D.R.I. Dec. 3, 2014) ..................................................................................... 42
Henry v. Rehab Plus Inc., 404 F. Supp.2d 435 (E.D.N.Y. 2005) ............................ 58
Hirsh v. State, 8 N.Y.2d 125, 202 N.Y.S.2d 296, 168 N.E.2d 372
(1960) ............................................................................................................. 48
Hoffman-Rattet v. Ortho Pharmaceutical Corp., 135 Misc.2d 750,
516 N.Y.S.2d 856 (N.Y. Sup. New York Co. 1987) ............................... 54,65
Hothan v. Herman Miller, Inc., 294 A.D.2d 333, 742 N.Y.S.2d 104
(2d Dept. 2002) .............................................................................................. 29
House v. Armour, Inc., 929 P.2d 340 (Utah 1996) .................................................. 65
Hughes v. A.W. Chesterton Co., 89 A.3d 179
(N.J. Super. App. Div. 2014) ......................................................................... 41
ix
Huitt v. Southern California Gas Co., 116 Cal. Rptr.3d 453
(Cal. App. 2010) ............................................................................................ 69
Hymowitz v. Eli Lilly & Co., 73 N.Y.2d 487, 541 N.Y.S.2d 941,
539 N.E.2d 1069 (1989) .......................................................................... 17,18
Imbierowicz v. A.O. Fox Memorial Hospital, 43 A.D.3d 503,
841 N.Y.S.2d 168 (3d Dept. 2007) ................................................................ 47
In re Aredia & Zometa Products Liability Litigation,
2009 WL 2496873 (M.D. Tenn. Aug. 13, 2009) ........................................... 52
In re Asbestos Litig., 2011 WL 322674 (Del. Super. Jan. 18, 2011) ....................... 40
In re Asbestos Litig., 2011 WL 379327 (Del. Super. Jan. 19, 2011) ....................... 39
In re Asbestos Litig., 2011 WL 2462569 (Del. Super. June 7, 2011) ...................... 36
In re Asbestos Litig., 2011 WL 5340597 (Del. Super. Oct. 5, 2011) ...................... 40
In re Asbestos Litig.,2012 WL 1415706 (Del. Super. Feb. 28, 2012) ..................... 42
In re Asbestos Litig., 2012 WL 1415709 (Del. Super. March 2, 2012) ................... 39
In re Asbestos Litig., 2012 WL 1408982 (Del. Super. April 2, 2012) ..................... 43
In re Asbestos Litig., 2012 WL 1409011 (Del. Super. April 2, 2012),
appeal refused, 44 A.3d 921 (Del. 2012) ...................................................... 36
In re Asbestos Litig., 2012 WL 1694442 (Del. Super. May 14, 2012) .................... 41
In re Asbestos Litig., 2012 WL 1996533 (Del. Super. June 1, 2012) ...................... 41
In re Asbestos Litig., 2013 WL 4493568 (Del. Super. Aug. 19, 2013) ................... 40
In re Asbestos Products Liab. Litig. (No. VI), 2011 WL 346822
(E.D. Pa. Jan. 13, 2011), adopted, 2011 WL 359696
(E.D. Pa. Feb. 3, 2011) .................................................................................. 35
In re Darvocet, Darvon, & Propoxyphene Products Liability
Litigation, 756 F.3d 917 (6th Cir. 2014) ....................................................... 32
In re Deep Vein Thrombosis, 356 F. Supp.2d 1055 (N.D. Cal. 2005) .................... 38
In re Eighth Judicial Dist. Asbestos Litig., 129 A.D.3d 1502,
11 N.Y.S.3d 397 (4th Dept. 2015) ................................................................. 31
In re Fosamax Products Liability Litigation, 924 F. Supp.2d 477
(S.D.N.Y. 2013) ............................................................................................. 58
In re New York City Asbestos Litig., 5 N.Y.3d 486,
806 N.Y.S.2d 146, 840 N.E.2d 115 (2005) ........................................ 10,20,21
x
In re New York City Asbestos Litigation, 121 A.D.3d 230
990 N.Y.S.2d 174 (1st Dept. 2014) .............................................................. 45
In re New York State Silicone Breast Implant Litigation,
166 Misc.2d 85, 631 N.Y.S.2d 491 (Sup. N.Y. Co. 1995),
aff’d mem., 234 A.D.2d 28, 650 N.Y.S.2d 558
(1st Dept. 1996) ............................................................................................. 20
In re NuvaRing Litigation, 2013 WL 1874321
(N.J. Super. Law Div. April 18, 2013) .......................................................... 70
J. Baranello & Sons v. Chase Manhattan Bank, N.A.,
119 A.D.2d 550, 500 N.Y.S.2d 727 (2d Dept. 1986) .................................... 47
Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.,
513 U.S. 527 (1995)....................................................................................... 34
John Crane, Inc. v. Scribner, 800 A.2d 727 (Md. 2002) ......................................... 41
Johnson v. Johnson Chemical Co., 183 A.D.2d 64,
588 N.Y.S.2d 607, 588 N.Y.S.2d 607 (2d Dept. 1992) ................................. 53
Johnson v. Jones-Blair Paint Co., 607 S.W.2d 305 (Tex. App. 1980) ................... 43
Kiefer v. Crane Co., 2014 WL 6778704 (S.D.N.Y. Feb. 3, 2014) .......................... 31
Kolar v. Buffalo Pumps Inc., 15 Pa. D. & C.5th 38 (Pa. C.P. 2010) ....................... 43
Kurer v. Parke, Davis & Co., 679 N.W.2d 867 (Wis. App. 2004) .......................... 70
LaPaglia v. Sears Roebuck & Co., 143 A.D.2d 173,
531 N.Y.S.2d 623 (2d Dept. 1988) ................................................................ 54
Leaf v. Goodyear Tire & Rubber Co., 590 N.W.2d 525 (Iowa 1999) ..................... 69
Leibowitz v. Bank Leumi Trust Co. of New York, 152 A.D.2d 169,
548 N.Y.S.2d 513 (2d Dept. 1989) ................................................................ 14
Lindstrom v. A-C Prod. Liability Trust, 424 F.3d 488 (6th Cir. 2005) ................... 35
Liriano v. Hobart Corp., 170 F.3d 264 (2d Cir. 1999) ............................................ 55
Liriano v. Hobart Corp., 92 N.Y.2d 232, 677 N.Y.S.2d 769,
700 N.E.2d 308 (1998) ............................................................................ 64,70
Luttrell v. Novartis Pharmaceuticals Corp., 894 F. Supp.2d 1324
(E.D. Wash. 2012) ......................................................................................... 70
Lyautey v. Alfa Laval, Inc., 2012 WL 2877377
(E.D. Pa. March 20, 2012) ............................................................................. 35
xi
Madden v. Creative Servs., Inc., 84 N.Y.2d 738, 622 N.Y.S.2d 478,
646 N.E.2d 780 (1995) ............................................................................ 15,16
Marks v. Swayne, 701 A.2d 224 (Pa. 1997) ............................................................. 49
Martin v. Hacker, 83 N.Y.2d 1, 607 N.Y.S.2d 598,
628 N.E.2d 1308 (1993) ..................................................................... 53,60,61
Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920) ........................................... 56
May v. Air & Liquid Sys. Corp., 100 A.3d 1283 (Md. App. 2014) ......................... 41
McDarby v. Merck & Co., 949 A.2d 223
(N.J. Super. App. Div. 2008) ......................................................................... 72
McDowell v. Eli Lilly & Co., 58 F. Supp.3d 391 (S.D.N.Y. 2014) ......................... 51
McGoldrick v. Porter-Cable Tools, 110 Cal. Rptr. 481
(Cal. App. 1973) ............................................................................................ 38
McPike v. Enciso's Cocina Mejicana, Inc., 762 P.2d 315
(Or. App. 1988) .............................................................................................. 69
Menard v. Newhall, 373 A.2d 505 (Vt. 1977) ................................................... 65,73
Menna v. Walmart, 40 Misc.3d 1221(A), 975 N.Y.S.2d 710,
2013 WL 3958247 (Sup. Suffolk Co. 2013) ................................................. 50
Metro-North Community R. Co. v. Buckley, 521 U.S. 424 (1997) .......................... 29
Micallef v. Miehle Co., 39 N.Y.2d 376, 384 N.Y.S.2d 115,
348 N.E.2d 571 (1976) ....................................................................... 24,63,64
Miller v. A.W. Chesterton Co., 2012 WL 2914180
(E.D. Pa. May 14, 2012) ................................................................................ 35
Miller v. Pfizer Inc., 196 F. Supp.2d 1095 (D. Kan. 2002), aff’d,
356 F.3d 1326 (10th Cir. 2004) ..................................................................... 73
Monell v. Scooter Store, Ltd., 895 F. Supp.2d 398 (N.D.N.Y. 2012) ............... 54,58
Montoney v. Cleaver-Brooks, Inc., 2012 WL 359523
(Pa. C.P. Jan. 5, 2012) ................................................................................... 42
Morejon v. Rais Const. Co., 7 N.Y.3d 203, 818 N.Y.S.2d 792,
851 N.E.2d 1143 (2006) ................................................................................ 56
Morgan v. Bill Vann Co., 969 F. Supp.2d 1358 (S.D. Ala. 2013) ........................... 39
Moroney v. General Motors Corp., 850 A.2d 629 (Pa. Super. 2004) ..................... 72
Muilenberg v. Upjohn Co., 320 N.W.2d 358 (Mich. App. 1982 ............................. 69
xii
Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282
(1st Dept. 2007) ............................................................................................. 50
Murphy v. American Home Prods. Corp., 58 N.Y.2d 293,
461 N.Y.S.2d 232, 448 N.E.2d 86 (1983) ............................................... 13,14
Mutual Pharmaceutical Co. v. Bartlett, ___ U.S. ___,
133 S.Ct. 2466 (2013) .................................................................................... 31
Nelson v. 3M Co., 2011 WL 3983257 (Minn. 2d Dist. Aug. 16, 2011) .................. 41
Nelson v. Air & Liquid Sys. Corp., 2014 WL 6982476
(W.D. Wash. Dec. 9, 2014) ........................................................................... 36
Nelson v. Shaner Cable, Inc., 56 A.D.3d 1283, 867 N.Y.S.2d 830
(4th Dept. 2008) ............................................................................................. 47
Neuwirth v. Blue Cross & Blue Shield of Greater New York,
62 N.Y.2d 718, 465 N.E.2d 353, 476 N.Y.S.2d 814 (1984) ......................... 46
Niemann v. McDonnell Douglas Corp., 721 F. Supp. 1019
(S.D. Ill. 1989) ............................................................................................... 39
Noah v. Bowery Savings Bank, 225 N.Y. 284, 122 N.E. 235 (1919) ...................... 46
Nolen v. A.W. Chesterton Co., 2004 WL 5047437
(Tex. Dist. July 26, 2004) .............................................................................. 43
Nolen v. A.W. Chesterton Co., 2004 WL 5047438
(Tex. Dist. Aug. 11, 2004) ............................................................................. 43
Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948) ................... 46
O’Brien v. Erie Railroad Co., 210 N.Y. 96, 103 N.E. 895 (1913) .......................... 59
Odom v. G.D. Searle & Co., 979 F.2d 1001 (4th Cir. 1992) ................................... 70
O'Neil v. Crane Co., 266 P.3d 987 (Cal. 2012) ................................................. 37,38
Ortega v. City of New York, 9 N.Y.3d 69, 845 N.Y.S.2d 773,
876 N.E.2d 1189 (2007) .......................................................................... 16,17
Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541
(Ind. App. 1979) ............................................................................................ 65
Pagnotta v. Diamond, 51 A.D.3d 1099, 857 N.Y.S.2d 773
(3d Dept. 2008) .............................................................................................. 47
Paulus v. Crane Co., 69 Cal. Rptr.3d 373 (Cal. App. 2014) ................................... 38
Payne v. Novartis Pharmaceuticals Corp., 767 F.3d 526
(6th Cir. 2014) ............................................................................................... 70
xiii
Payne v. Soft Sheen Products, Inc., 486 A.2d 712 (D.C. 1985) .............................. 65
People ex rel. Spitzer v. Sturm, Ruger & Co., 309 A.D.2d 91,
761 N.Y.S.2d 192 (1st Dept. 2003) ............................................................... 19
People ex rel. Wallington Apartments v. Miller, 288 N.Y. 31,
41 N.E.2d 445 (1942) .................................................................................... 73
People v. Getch, 50 N.Y.2d 456, 429 N.Y.S.2d 579,
407 N.E.2d 425 (1980) .................................................................................. 46
People v. Hildebrandt, 308 N.Y. 397, 126 N.E.2d 377 (1955) ............................... 57
People v. Leyva, 38 N.Y.2d 160, 379 N.Y.S.2d 30, 341 N.E.2d 546
(1975) ............................................................................................................. 57
People v. Mertz, 68 N.Y.2d 136, 506 N.Y.S.2d 290, 497 N.E.2d 657
(1986) ............................................................................................................. 46
People v. Morris, 21 N.Y.3d 588, 976 N.Y.S.2d 682, 999 N.E.2d 160
(2013) ............................................................................................................. 59
People v. Rosario, 78 N.Y.2d 583, 578 N.Y.S.2d 454, 585 N.E.2d 766
(1991) ............................................................................................................. 72
PLIVA v. Mensing, ___ U.S. ___, 131 S.Ct. 2567 (2011) ....................................... 31
Potthoff v. Alms, 583 P.2d 309 (Colo. App. 1978) .................................................. 69
Power v. Crown Controls Corp., 149 Misc.2d 967,
568 N.Y.S.2d 674 (Sup. New York Co. 1990) .............................................. 51
Raney v. Owens-Illinois, Inc., 897 F.2d 94 (2d Cir. 1990) ...................................... 58
Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 4,6,7,8,23
582 N.Y.S.2d 373, 591 N.E.2d 222 (1992) ................................... 29,30,31,34
40,43
Reed v. American Steel & Wire Corp., 2014 WL 3674678
(Ga. Super. July 21, 2014) ............................................................................. 40
Reis v. Volvo Cars, Inc., 73 A.D.3d 420, 901 N.Y.S.2d 10
(1st Dept. 2010) ............................................................................................. 50
Richards v. Armstrong International, Inc., 2013 WL 1845826
(Me. B.C.D. Jan. 25, 2013) ............................................................................ 41
Riley v. American Honda Motor Co., 856 P.2d 196 (Mont. 1993) ............... 68,69,70
Rivera v. Philip Morris, Inc., 209 P.3d 271 (Nev. 2009) .................................. 67,68
xiv
Roberts v. Adience, Inc., 2014 WL 7190246
(Ohio C.P. March 4, 2014) ............................................................................ 42
Robinson v. Air & Liquid Sys. Corp., 2014 WL 3673030
(D.N.J. July 23, 2014) .................................................................................... 41
Robinson v. Reed-Prentice, 49 N.Y.2d 471, 426 N.Y.S.2d 717,
403 N.E.2d 440 (1980) ............................................................................ 62,70
Rogers v. Sears, Roebuck & Co., 268 A.D.2d 245, 701 N.Y.S.2d 359
(1st Dept. 2000) ............................................................................................. 30
Roman v. Sprint Nextel Corp., 2014 WL 5026093
(S.D.N.Y. Sept. 29, 2014) .............................................................................. 58
Rumery v. Garlock Sealing Technologies, Inc., 2009 WL 1747857
(Me. Super. April 24, 2009) .......................................................................... 41
S.F. v. Archer Daniels Midland Co., 594 F. Appx. 11
(2d Cir. 2014) ................................................................................................. 20
Saladino v. Stewart & Stevenson Services, Inc.,
704 F. Supp.2d 237, 2010 WL 1292264 (E.D.N.Y. 2010)............................ 59
Samuel v. Ford Motor Co., 112 F. Supp.2d 460 (D. Md. 2000),
aff’d, 95 F. Appx. 520 (4th Cir. 2004) ........................................................... 73
Sanders v. Ingram Equip., Inc., 531 So. 2d 879 (Ala. 1988) ................................... 39
Santoro v. Donnelly, 340 F. Supp.2d 464 (S.D.N.Y. 2004) .................................... 58
Santos v. Ford Motor Co., 69 A.D.3d 502, 893 N.Y.S.2d 537
(1st Dept. 2010) ............................................................................................. 50
Sawicki v. Allegheny Technologies, Inc., 2013 WL 10982175
(Wis. Cir. Aug. 2, 2013) ................................................................................ 43
Sawyer v. Dreis & Krump Manufacturing Co., 67 N.Y.2d 328,
493 N.E.2d 920, 502 N.Y.S.2d 696 (1986) ................................................... 49
Schechter v. Klanfer, 28 N.Y.2d 228, 321 N.Y.S.2d 99,
269 N.E.2d 812 (1971) .................................................................................. 49
Schumacher v. Richards Shear Co., 59 N.Y.2d 239,
464 N.Y.S.2d 437, 451 N.E.2d 195 (1983) ................................................... 61
Seley v. G.D. Searle Co., 423 N.E.2d 831 (Ohio 1981) .......................................... 65
Serini v. A.W. Chesterton Co.,2012 WL 2914188
(E.D. Pa. May 14, 2012) ................................................................................ 35
xv
Simonetta v. Viad Corp., 197 P.3d 127 (Wash. 2008) ....................................... 36,37
Sosna v. American Home Products, 298 A.D.2d 158,
748 N.Y.S.2d 548 (1st Div. 2002) ................................................................. 50
Sparkman v. A.W. Chesterton Co., 2015 WL 727937
(D.S.C. Feb. 19, 2015) ................................................................................... 42
Sprung v. MTR Ravensburg Inc., 99 N.Y.2d 468, 758 N.Y.S.2d 271,
788 N.E.2d 620 (2003) .................................................................. 24,25,26,27
Stark v. Armstrong World Indus., Inc., 21 F. Appx. 371
(6th Cir. 2001) ............................................................................................... 34
Sukljian v. Charles Ross & Son Co., 69 N.Y.2d 89,
511 N.Y.S.2d 821, 503 N.E.2d 1358 (1986) ........................................... 25,26
Surre v. Foster Wheeler LLC, 831 F. Supp.2d 797 (S.D.N.Y. 2011) ...................... 31
Taylor v. Elliott Turbomachinery Co., 90 Cal. Rptr.3d 414
(Cal. App. 2009) ............................................................................................ 38
Technical Chemical Co. v. Jacobs, 480 S.W.2d 602 (Tex. 1972) ........................... 65
Terra Firma Investments (GP) 2 Ltd. v. Citigroup Inc.,
716 F.3d 296 (2d Cir. 2013) .......................................................................... 47
Thomas v. Hoffmann-La-Roche, Inc., 949 F.2d 806 (5th Cir. 1992) ....................... 71
Thurmon v. A.W. Chesterton, Inc., 61 F.Supp.3d 1280
(N.D. Ga. 2014) ............................................................................................. 40
Tobin v. Grossman, 24 N.Y.2d 609, 301 N.Y.S.2d 554,
249 N.E.2d 419 (1969) .................................................................. 11,12,13,16
Toole v. Georgia-Pac., LLC, 2011 WL 7938847
(Ga. App. Jan. 19, 2011) ................................................................................ 40
Topliff v. Wal-Mart Stores E. LP, 2007 WL 911891
(N.D.N.Y. March 22, 2007) ........................................................................... 58
Torrogrossa v. Towmotor Co., 44 N.Y.2d 709, 405 N.Y.S.2d 448,
376 N.E.2d 920 (1978) .................................................................................. 24
Tortoriello v. Bally Case, Inc., 200 A.D.2d 475, 606 N.Y.S.2d 625
(2d Dept. 1994) .............................................................................................. 29
Toth v. Econ. Forms Corp., 571 A.2d 420 (Pa. Super. 1990) ................................. 42
xvi
Travelers Indemnity Co. v. HansLing / Anlagenbau Und
Verfahrenstechnik GMBH & Co. KG, 189 F. Appx. 782
(10th Cir. 2006) ............................................................................................. 73
Trombetta v. Conkling, 82 N.Y.2d 549, 605 N.Y.S.2d 678,
626 N.E.2d 653 (1993) ............................................................................ 13,16
Tuttle v. Lorillard Tobacco Co., 377 F.3d 917 (8th Cir. 2004) ............................... 69
Various Plaintiffs v. Various Defendants, 856 F. Supp.2d 703
(E.D. Pa. 2012) .............................................................................................. 35
Vedros v. Northrop Grumman Shipbuilding, Inc.,
2014 WL 1093678 (E.D. La. March 14, 2014) ............................................. 36
Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395,
373 N.Y.S.2d 39, 335 N.E.2d 275 (1975) ..................................................... 25
Viguers v. Philip Morris USA, Inc., 837 A.2d 534 (Pa. Super. 2004),
aff’d mem., 881 A.2d 1262 (Pa. 2005) .......................................................... 72
Voss v. Black & Decker Mfg. Co., 59 N.Y.2d 102 (1983) ....................................... 24
Walton v. Harnischfeger, 796 S.W.2d 225 (Tex. App. 1990) ................................. 43
Weese v. Pfizer, Inc., 2013 WL 5691993
(Sup. N.Y. Co. Oct. 8, 2013) ......................................................................... 32
Whiting v. CBS Corp., 982 N.E.2d 1224 (Mass. App. 2013) .................................. 41
Whitlatch v. Fidelity & Casualty Co. of New York, 149 N.Y. 45,
43 N.E. 405 (1896) ........................................................................................ 46
Wild v. Catholic Health System, 21 N.Y.3d 951, 969 N.Y.S.2d 846,
991 N.E.2d 704 (2013) .................................................................................. 48
Wilkerson v. Am. Honda Motor Co., 2008 WL 162522
(Del. Super. Jan. 17, 2008) ............................................................................ 40
Williams v. Arctic Cat, Inc., 2012 WL 6086912
(N.D.N.Y. Dec. 6, 2012) ................................................................................ 59
Wilson v. Bradlees of New England, Inc., 250 F.3d 10 (1st Cir. 2001) ................... 69
Wilson v. Nationwide Mutual Insurance Co., 168 A.D.2d 912,
565 N.Y.S.2d 643 (4th Dept. 1990) ............................................................... 47
Wood v. State, 112 A.D.2d 612, 492 N.Y.S.2d 481 (3d Dept. 1985) ...................... 67
Wooderson v. Ortho Pharmaceutical Corp., 681 P.2d 1038
(Kan. 1984) .................................................................................................... 65
xvii
Yankee v. APV N. Am., Inc., 262 P.3d 515 (Wash. App. 2011) ............................... 37
Zamora v. New York Neurologic Assocs., 19 N.Y.3d 186,
947 N.Y.S.2d 788, 970 N.E.2d 823 (2012) ................................................... 57
Zapata v. Ingersoll Rand Co., 36 Misc.3d 1230(A), 959 N.Y.S.2d 93,
2012 WL 3553111 (Sup. Kings Co. 2012) .................................................... 50
Statutes
N.C. Gen. Stat. Ann. § 99B-5(a) .............................................................................. 64
N.Y. Gen. Mun. Law § 207-kk ................................................................................ 69
N.Y. Lab. Law § 740, L1984, ch 660 ...................................................................... 14
N.Y. Veh. & Traf. Law § 1146(b)(2) ....................................................................... 69
N.Y. Veh. & Traf. Law § 1146(c)(2) ....................................................................... 69
Wis. Stat. § 895.047(1)(e) ........................................................................................ 65
Other Authorities
Henderson, James A. Jr., Doctrinal Collapse in Products Liability:
The Empty Shell of Failure to Warn, 65 N.Y.U. L. Rev. 265
(1990) ............................................................................................................. 56
Prosser and Keeton, Torts § 98 (5th ed.) ................................................................. 25
Restatement (Second) of Torts § 88 (1965) ..........................................................6,57
Restatement (Second) of Torts § 402A (1965) ............................................... 5,55,57
Restatement (Second) of Torts § 402A comment c ................................................. 25
Restatement (Second) of Torts § 402A comment j (1965) .......................... 5,6,60,61
62,63,65,67
69
Restatement (Third) of Torts, Products Liability § 2 (1998)
(Reporters’ Note) ........................................................................................... 58
Restatement (Third) of Torts, Products Liability § 2 comment 1
(1998) ............................................................................................................. 58
Restatement (Third) of Torts, Products Liability § 2 comment d
(1998) ............................................................................................................. 59
Restatement (Third) of Torts, Products Liability § 2 comment d
(1998) (Reporters’ Note) ............................................................................... 59
1
STATEMENT OF INTEREST OF
AMICUS CURIAE PRODUCT LIABILITY ADVISORY COUNCIL, INC.1
The Product Liability Advisory Council, Inc. (“PLAC”) is a non-profit
association with 104 corporate members from a broad cross-section of American
and international product manufacturers. See Attachment A (listing PLAC’s
corporate members as of September, 2015). In addition, several hundred leading
product liability defense attorneys are sustaining (non-voting) members of PLAC.
PLAC seeks to contribute to the improvement and reform of the law
affecting product liability in the United States and elsewhere. PLAC’s point of
view reflects the experience of corporate members in diverse manufacturing
industries. Since 1983, PLAC has filed over 1,000 briefs as amicus curiae in state
and federal courts, including this Court, presenting the broad perspective of
product manufacturers seeking fairness and balance in the application and
development of product liability law.
PLAC’s members have a strong interest in maintaining traditional tort
elements, such as product identification and causation, that confine product
liability within reasonable limits. Fundamental to any rational system of product
1 No party or counsel for a party authored this brief, in whole or in part, or made a
monetary contribution intended to fund either the preparation or submission of this
brief. Appellant Crane Co. is a corporate member of PLAC. Other than paying the
same dues as any PLAC corporate member, Crane Co. made no financial
contribution to the preparation or submission of this brief.
2
liability is that defendants may not be liable, under negligence or strict liability, for
the purported “defects”—including failure to warn—of products they did not
manufacture, market, or otherwise place into the stream of commerce. Product
liability has always been justified on the ground that the cost of product injuries
should be borne by those who profited from the products’ sale.
Similarly, in warning cases as in all other product liability actions, the
burden of proof properly lies with the plaintiff. No legal or policy basis exists for
upending existing law with a “heeding presumption.” In this case, asbestos
plaintiffs’ relentless pursuit of ever wider liability on ever more tenuous theories
threatens to push New York tort law past its breaking point.
This amicus curiae brief is respectfully submitted to the Court to address the
public importance of these issues apart from and beyond the immediate interests of
the parties to this case.
3
QUESTIONS PRESENTED
1. Whether a manufacturer may be held liable for failure to warn about the
hazards posed by asbestos-containing products that it did not manufacture,
market, distribute, or otherwise place into the stream of commerce, that were
not necessary or required for the safe use of the manufacturer’s products,
and that were used in conjunction with the manufacturer’s products by a
third party after the third party purchased and installed the manufacturer’s
product?
2. Whether a new trial is required because New York law imposes the burden
of proving causation in a failure-to-warn case on product liability plaintiffs,
just as it does on all other plaintiffs, so that the trial court’s charge that the
jury could presume causation was reversible error affecting the burden of
proof?
4
STATEMENT OF THE CASE
PLAC adopts the statement of the case of Appellant Crane Co. (“Crane”).
See Crane Br. 8-19.
SUMMARY OF ARGUMENT
1. In Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 297-98,
582 N.Y.S.2d 373, 376-77, 591 N.E.2d 222, 225-26 (1992), this Court recognized
that a defendant has a duty to provide adequate warnings of the hazards attendant
only to the use of products that it manufactures, distributes, or otherwise places
into the stream of commerce. Conversely, no general duty extends to hazards
inherent in the use of products manufactured, marketed, or distributed by others.
The Court recognizes only three narrow exceptions, for cases where a defendant is
shown to have (1) exercised “control over the production” of the hazardous
product; (2) played a “role in placing [the hazardous product] in the stream of
commerce[;]” or (3) “derived a benefit” from the “sale” of the hazardous product.
Id. Undisputedly, none of those exceptions exist here.
Rastelli’s general rule and narrowly defined exceptions squarely control the
result of this case and should be re-affirmed. A manufacturer does not have a legal
duty to warn of hazards posed by others’ products under circumstances where:
(1) it arguably was “foreseeable” that the manufacturer’s product would be used by
a third party along with a hazardous product or (2) the manufacturer arguably had
5
some “role, interest, or influence” in a third party’s decision to combine the
manufacturer’s product with the hazardous products of others. A legal duty to give
warnings about others’ products under such broad, vague circumstances would be
inconsistent with long-settled tort principles; would subject defendants to
expansive and unpredictable litigation and liability; would draw courts into
intractable judicial and public policy problems; and would impose widespread
costs on society. In numerous cases virtually identical to this one, state and federal
courts across the country have held that a defendant does not have a duty to warn
about others’ products under circumstances such as these. This Court should reach
the same conclusion and leave it to the legislature to determine whether any change
in traditional legal duties and tort principles is appropriate.
2. In New York the burden of proof has always rested on the plaintiff in
product liability actions alleging failure to warn. The so-called “heeding
presumption” upon which the jury was charged at Plaintiff’s request is contrary to
law. Negligence and strict liability are identical in warning cases, thus comment j
to Restatement (Second) of Torts § 402A (1965) has never been adopted in New
York. The lower courts erroneously confused what might be a permissible jury
inference with a burden-shifting presumption—a presumption never recognized
under New York law.
6
Heeding presumptions adopted by other states are based on a misreading of
language in comment j—“Where warning is given, the seller may reasonably
assume that it will be read and heeded”—that the more recent Third Restatement
has explicitly rejected. The American Law Institute’s rejection of that
“assumption” was expressly based, inter alia, on this Court’s decision rejecting
“open and obvious” as a design defect defense. Even by its own terms, the
comment j language has no bearing on causation in warning defect cases, since
causation is never reached when a warning is adequate, the situation that this
language addresses. Restatement (Second) of Torts §388 (1965), which this Court
has followed, recognizes no causation presumption and imposes the burden of
proof on plaintiffs, where precedent holds that it belongs.
ARGUMENT
I. This Court Should Re-Affirm Rastelli And Hold That Crane Did
Not Have A Legal Duty To Warn About Hazards Posed By
Asbestos-Containing Products Manufactured And Distributed By
Others.
Under New York law, a defendant has a duty to provide adequate warnings
of hazards attendant to the use of products that it manufactures, distributes, or
otherwise places into the stream of commerce. See Rastelli, 79 N.Y.2d at 297-98,
582 N.Y.S.2d at 376-77, 591 N.E.2d at 225-26. Conversely, a defendant generally
does not have a duty to warn about hazards arising from the use of products that
are manufactured, marketed, or distributed by others. Id. at 297-98, 582 N.Y.S.2d
7
at 376-77, 591 N.E.2d at 225-26. This general rule holds true even when a
defendant: (1) manufactures or distributes a product that is compatible with the
hazardous products of others and (2) can foresee its product being used in
combination with such other persons’ hazardous products. Id. at 297-98, 582
N.Y.S.2d at 376-77, 591 N.E.2d at 225-26. The only exceptions to this general
rule that have been recognized by this Court involve cases where a defendant is
shown to have (1) exercised “control over the production” of the hazardous
product; (2) played a “role in placing [the hazardous product] in the stream of
commerce[;]” or (3) “derived a benefit” from the “sale” of the hazardous product.
Id. at 297-98, 582 N.Y.S.2d at 376-77, 591 N.E.2d at 225-26. Both Rastelli’s
general rule and its three narrow exceptions derive from the same fundamental
principle of tort law—responsibility for a hazard follows control over that hazard.
A defendant may be subject to a legal duty to warn (and thus liability for breach) if
and only if the defendant’s conduct “contribute[s]” to the manufacturing,
marketing, or distribution of a product that has a defect or a latent danger attendant
to its use. Id. In short, product liability is imposed only on product manufacturers
or others with similar control over product risks. Not even Plaintiff2 contends that
such responsibility exists here.
2 After trial, Plaintiff Ronald Dummitt died. PLAC therefore uses “Plaintiff” to
refer to the current Respondent (his wife), and “Mr. Dummit” for the decedent.
8
This Court’s decision in Rastelli squarely controls the outcome of this case.
All parties agree that Crane did not manufacture, market, or distribute the asbestos-
containing gaskets, insulation, and/or packing material to which Mr. Dummitt was
exposed. (R. 52-53, 78, 1163, 1351, 1365.) Likewise, Plaintiff offered no
evidence that Crane exercised any “control over the production” of any asbestos-
containing product to which Mr. Dummitt was exposed; (2) played any “role in
placing [those asbestos-containing products] in the stream of commerce[;]” or
(3) “derived a benefit” from the sale of those asbestos-containing products. (R.
1170, 1173, 1510-11, 5655, 5657.)
To the contrary, the record shows that Mr. Dummitt was exposed only to
asbestos-containing gaskets, insulation, or packing material designed,
manufactured, marketed, and distributed exclusively by others, which were
selected and used with Crane’s valves by an independent third party (the U.S.
Navy) long after Crane’s valves had been sold and incorporated into various
completed ships. (R. 52-53, 78, 1163, 1351, 1365.) Simply put, Crane did not do
anything to “contribute” to the manufacture or distribution of the products that
purportedly caused Mr. Dummitt’s injuries. Under Rastelli, this case should be
over. Crane has no legal obligation to warn about the hazards of other
manufacturers’ products purchased long after Crane’s products had left its hands,
and used in conjunction with Crane’s products by an independent entity.
9
Plaintiff tacitly recognized as much at trial, by offering a proposed jury
instruction to the Supreme Court that Crane owed a legal duty to warn about other
companies’ products’ risks because it was “foreseeable” that the U.S. Navy would
some day add asbestos-containing products to Crane’s valves and operate them in
combination. (R. 2031.)
That is precisely what (over Crane’s objection), the Supreme Court charged.
After receiving Plaintiff’s instruction, the jury returned a verdict for Plaintiff
holding Crane liable solely for breaching that supposed duty to warn. (R. 50.) The
Appellate Division, however, affirmed on a novel variant of warning duty: It
invented a retroactive warning standard custom-fit for asbestos cases. (COA 44.)
Hazards posed by other products now gave rise to a duty to warn where a
defendant had a “sufficiently significant role, interest, or influence” in a third
party’s decision to combine the defendant’s risk-free product with someone else’s
hazardous product. Id. This bespoke duty exists nowhere else, and the Appellate
Division offered no principled definition of “sufficiently significant.”
Before this Court, Plaintiff at various points defends both trial and appellate
variants of the purported warning duty and further argues that this Court should
draw no “bright-lines” at all to cabin a duty to warn extending beyond the risks of
a manufacturer’s own products. See Pl. Br. 24-61. Plaintiff’s arguments lack merit
and should be rejected for multiple, bedrock reasons.
10
A. The Court Has Adopted A Policy Of “Judicial Resistance”
Towards Novel Tort Duties, Especially Ones That Appear
Vague, Ill-Defined, And Expansive.
Most fundamentally, Plaintiff’s approach to creating tort duties is at odds
with this Court’s precedents. Plaintiff claims that the Court routinely recognizes
new, fact-bound tort duties and eschews “bright-line” rules of general applicability.
See Pl. Br. 24-25; see also id. at 44-47 (arguing for creation of a warning duty
under this case’s particular facts); Brief for Amicus Curiae New York State Trial
Lawyers Ass’n (“NYTLA”) at 7-8. Nothing is farther from the truth. This Court
has never behaved in such an unprincipled fashion. Instead, its precedents
recognize that new legal duties, or novel expansions of old duties, inevitably will
have “precedential, and consequential, future effects” on the disposition of other
cases, the workload of the judicial system, private conduct, and society as a whole.
See Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 232-40, 727 N.Y.S.2d 7, 12-
18, 750 N.E.2d 1055, 1060-66 (2001).
Accordingly, this Court has held that, when confronted with novel or
expanded legal duty proposals, it considers not only the particular facts of a given
case but also “‘the reasonable expectations of parties and society generally, the
proliferation of claims, the likelihood of unlimited or insurer-like liability,
disproportionate risk and reparation allocation, and public policies affecting the
expansion or limitation of new channels of liability.’” In re New York City
11
Asbestos Litig., 5 N.Y.3d 486, 493, 806 N.Y.S.2d 146, 150, 840 N.E.2d 115, 119
(2005) (quoting Hamilton, 96 N.Y.2d at 232, 727 N.Y.S.2d at 12, 750 N.E.2d at
1060) (“NYC Asbestos I”). When deciding whether to recognize a new legal duty
or to extend an old one, this Court has been especially concerned about creating
“unlimited” or “insurer-like” liability in future cases, the danger of “unforeseeable
consequences” for the courts and society, and the interests of persons not before
the Court. Hamilton, 96 N.Y.2d at 232, 727 N.Y.S.2d at 12, 750 N.E.2d at 1060;
see also Tobin v. Grossman, 24 N.Y.2d 609, 619, 301 N.Y.S.2d 554, 561, 249
N.E.2d 419, 424 (1969).
Explicitly—due to “practical concerns both about potentially limitless
liability and about the unfairness of imposing liability for the acts of another”—
the Court has adopted a policy of “judicial resistance to the expansion of duty” in
tort cases. Hamilton, 96 N.Y.2d at 232, 727 N.Y.S.2d at 12, 750 N.E.2d at 1060
(emphasis added). Thus, the Court generally will not recognize new or increased
tort duties if the duty being proposed is vague, ill-defined, or expansive or would
produce dramatic change in long-settled legal principles. Id. at 232, 242, 727
N.Y.S.2d at 12, 20, 750 N.E.2d at 1060, 1068. For similar reasons, the Court
accepts only clear standards for delimiting the scope of a legal duty of care. It
consciously strives for holdings that are “reasonable,” “circumscribed,” easy to
administer, and easy for private parties to understand and follow. Id. at 232, 242,
12
727 N.Y.S.2d at 12, 20, 750 N.E.2d at 1060, 1068. If the Court cannot define a
legal duty in such terms, that alone is sufficient reason to reject an expansion of
tort liability. Id. at 232, 242, 727 N.Y.S.2d at 12, 20, 750 N.E.2d at 1060, 1068.
B. An Expansive Duty To Warn Of Hazards Posed By Others’
Products Should Be Created Only by Legislative Action, Not
Judicial Decree.
In numerous cases, this Court has rejected requests to recognize new
common law duties, to expand old ones to novel settings, or “to rethink traditional
notions of duty, liability and causation.” Hamilton, 96 N.Y.2d at 242, 727
N.Y.S.2d at 20, 750 N.E.2d at 1068. In case after case, the Court has held that the
Legislature is the proper forum for resolving conflicting societal policies that
underlie radical changes to long-standing tort principles.
In Tobin, the Court refused to create a cause of action for negligently caused
emotional distress resulting from actual or threatened injury to a third person
where the plaintiff: (1) was at best a bystander to the primary tort; and (2) suffered
no contemporaneous or consequential physical injury. The Court rejected the
plaintiff’s vague and overbroad appeals to equity and the Court’s inherent power to
develop the common law of torts and instead followed established tort doctrine
reflected in prior precedent and the Restatement (Second) of Torts. Tobin, 24
N.Y.2d at 619, 301 N.Y.S.2d at 561, 249 N.E.2d at 424 (“While it may seem that
there should be a remedy for every wrong, this is an ideal limited perforce by the
13
realities of this world.”). The Court expressed serious concerns about lack of “a
rational way to limit the scope of liability” under the proposed cause of action. Id.,
at 618, 301 N.Y.S.2d at 561, 249 N.E.2d at 424. Some types of risk are “pervasive
and inevitably realized at one time or another,” and there was “no rational practical
boundary for liability.” Id., at 618-19, 301 N.Y.S.2d at 561, 249 N.E.2d at 424.
Thus, the Court refused to expand liability. “[W]hichever way one turns in
permitting a theory of recovery one is entangled in the inevitable ramifications
which will not stay defined or limited. There are too many factors and each too
relative to permit creation of only a limited scope of liability or duty.” Id., 24
N.Y.2d at 619, 301 N.Y.S.2d at 561, 249 N.E.2d at 424; see also Bovsun v.
Sanperi, 61 N.Y.2d 219, 229, 473 N.Y.S.2d 357, 361, 461 N.E.2d 843, 847 (1984)
(applying same considerations to limit bystander liability to the “zone of danger”
doctrine recognized by the Restatement (Second) of Torts); Trombetta v. Conkling,
82 N.Y.2d 549, 553-54, 605 N.Y.S.2d 678, 679-80, 626 N.E.2d 653, 654-55
(1993) (refusing to expand the “strict” and “objective” cause of action allowed in
Bovsun).
In Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300-01, 461
N.Y.S.2d 232, 235, 448 N.E.2d 86, 89 (1983), the Court refused to allow at-will
employees to sue for wrongful discharge. Consistent with the Tobin line of cases,
the Court pointed out that the proposed cause of action would abandon a “long-
14
settled” common-law rule. Id. at 300-01, 461 N.Y.S.2d at 235, 448 N.E.2d at 89
(describing expansion of legal duties and liabilities as a “fundamental question”).
Murphy also explained how recognition of the novel duty or claim would
inevitably impact a host of jurisprudential and policy issues concerning traditional
contract rules, “the multifarious types of employment[,] and the various
circumstances of discharge.” Id. at 302, 461 N.Y.S.2d at 236, 448 N.E.2d at 90.
For all these reasons, the Court concluded “that recognition in New York State of
tort liability for what has become known as abusive or wrongful discharge should
await legislative action.” Id. at 302, 461 N.Y.S.2d at 236, 448 N.E.2d at 90.3
In Hall v. United Parcel Serv. of America, Inc., 76 N.Y.2d 27, 556 N.Y.S.2d
21, 555 N.E.2d 273 (1990), the Court refused to create a cause of action for alleged
misuse of lie detector tests. Hall also carefully considered how the proposed cause
of action would disrupt the requirements of established causes of action in law and
equity—particularly the protection of one’s reputation “through the traditional
remedies for defamation.” Id. at 32-33, 556 N.Y.S.2d at 24-25, 555 N.E.2d at 276-
77. That a plaintiff could not “avail himself of those remedies,” because of
3 The Legislative response to Murphy vindicated the Court’s judicial restraint.
Instead of abolishing the at-will doctrine, it enacted Labor Law §740, commonly
known as the “Whistleblowers’ Statute” (L 1984, ch 660). See Leibowitz v. Bank
Leumi Trust Co. of New York, 152 A.D.2d 169, 175, 548 N.Y.S.2d 513, 516 (2d
Dept. 1989). The law created a carefully tailored cause of action for retaliatory
discharge in certain specific and circumscribed situations while otherwise leaving
the at-will doctrine intact. Id.
15
common-law limits on the scope of the action, did not justify creation of a new
cause of action by judicial decree. Id. at 32-33, 556 N.Y.S.2d at 24-25, 555 N.E.2d
at 276-77 (citations omitted). Expanding legal duties and liability was unsound
because such a significant change to existing law would necessitate addressing
numerous complicated “judicial and social policy considerations.” The magnitude
and complexity of the legal departure belied the plaintiff’s argument that “some
governmental oversight and regulation may be desirable[.]” Id. at 32-33, 556
N.Y.S.2d at 24-25, 555 N.E.2d at 276-77. As in Murphy, the Court held that social
problems “are best and more appropriately explored and resolved by the legislative
branch of our government . . . particularly where . . . there are competing interests
at stake.” Id. at 34, 556 N.Y.S.2d at 25, 555 N.E.2d at 277.
Likewise, the Court rejected a novel cause of action for “third-party
intrusions on attorney-client confidences” despite the “supervening societal
importance” of such confidences. Madden v. Creative Servs., Inc., 84 N.Y.2d 738,
746, 622 N.Y.S.2d 478, 482, 646 N.E.2d 780, 783 (1995). The Court’s inherent
power to develop tort law is exercised “with care, mindful that a new cause of
action will have foreseeable and unforeseeable consequences, most especially the
potential for vast, uncircumscribed liability.” Id. at 746, 622 N.Y.S.2d at 482, 646
16
N.E.2d at 784.4 In view of existing legal protections, no compelling reason existed
for the extensive legal changes being sought. Id. at 746, 622 N.Y.S.2d at 482, 646
N.E.2d at 784. Legislative activity in this area underscored the need for judicial
restraint. Id. at 746, 622 N.Y.S.2d at 482, 646 N.E.2d at 784. The plaintiff did not
allege any present physical injury from the alleged misconduct—only “a
generalized fear for personal safety and security that might accompany a theft or
trespass on one’s property.” Id. at 747, 622 N.Y.S.2d at 482, 646 N.E.2d at 784.
Therefore, “[a] new cause of action . . . should at least require some element of
harm to plaintiffs that arises directly from a breach.” Id. at 747, 622 N.Y.S.2d at
482, 646 N.E.2d at 784.
Ortega v. City of New York, 9 N.Y.3d 69, 79, 845 N.Y.S.2d 773, 778-79,
876 N.E.2d 1189, 1194-95 (2007), followed these precedents, and left for the
Legislature whether to create a new cause of action for third-party spoliation of
evidence. The Court rejected the same vague appeals to “a remedy for every
wrong” in favor of principled analysis of established legal actions and remedies
and “other judicial and social policy concerns.” Id. at 78, 845 N.Y.S.2d at 778,
876 N.E.2d at 1194 (citing Tobin, Trombetta, Hall, and Madden). Other
jurisdictions had taken divergent approaches to the proposed spoliation tort,
4 Citing Trombetta, 82 N.Y.2d at 554, 605 N.Y.S.2d at 681, 626 N.E.2d 653, and
Tobin, 24 N.Y.2d at 615, 301 N.Y.S.2d at 558, 249 N.E.2d at 422.
17
resulting in “little consensus regarding [the new tort’s] elements.” Id. at 77-78,
845 N.Y.S.2d at 777-78, 876 N.E.2d at 1193-94. Retaining established New York
law was preferable, given other courts’ inconsistent results, and the problems of
proof, remedy, and damages posed by the new tort. Id. at 79, 845 N.Y.S.2d at 778-
79, 876 N.E.2d at 1194-95 (concluding that the Court was “not convinced that
existing New York remedies are inadequate to deter spoliation or appropriately
compensate its victims”). See also Codling v. Paglia, 32 N.Y.2d 330, 345-46, 345
N.Y.S.2d 461, 472, 298 N.E.2d 622, 630 (1973) (upholding the Legislature’s
responsibility to change settled common-law rules concerning changes in the
doctrine of contributory negligence).
Indeed, even when the Court found itself—unlike here—operating in the
wake of a legislative initiative supporting a change to the common law, it
prudently stayed within the boundaries of the Legislature’s actions. In 1986, the
Legislature created a statutory exception to the “long-standing rule in this State
that the limitations period [of a cause of action] accrued upon exposure in actions
alleging personal injury caused by toxic substances,” which revived (for one year)
claims by plaintiffs allegedly injured by a particular product. Hymowitz v. Eli Lilly
& Co., 73 N.Y.2d 487, 503-04, 541 N.Y.S.2d 941, 945, 539 N.E.2d 1069, 1073
(1989). The new statute “consciously created” “reasonable expectations” of
recovery on the revived claims. Id. at 507, 541 N.Y.S.2d at 947, 539 N.E.2d at
18
1075. In light of the Legislature’s manifest intent, the Court in Hymowitz judged it
appropriate to relax a traditional proof-of-causation requirement and to allow
market share liability for cases subject to the statute. Id. at 514, 541 N.Y.S.2d at
951, 539 N.E.2d at 1079. Hymowitz made clear, however, that its market-share-
based departure from traditional causation standards was “a singular case” raising
an “unusual scenario.” Id. at 507-08, 541 N.Y.S.2d at 947, 539 N.E.2d at 1075.
In Hamilton, 96 N.Y.2d at 232-40, 727 N.Y.S.2d at 12-18, 750 N.E.2d at
1060-66, plaintiffs asked the Court to: (1) impose a duty on gun manufacturers to
take steps at “the point of . . . sale to primary distributors to reduce the possibility
that [guns] will fall into the hands of those likely to misuse them” (internal
quotations and citations omitted) and (2) extend Hymowitz’s market share liability
ruling to this new setting. The Court emphatically rejected both requests.
The Court in Hamilton refused to recognize the plaintiffs’ proposed legal
duty. The Court explained that it “traditionally” decides whether to recognize a
legal duty “by balancing factors, including the reasonable expectations of parties
and society generally, the proliferation of claims, the likelihood of unlimited or
insurer-like liability, disproportionate risk and reparation allocation, and public
policies affecting the expansion or limitation of new channels of liability.” Id. at
232, 727 N.Y.S.2d at 12, 750 N.E.2d at 1060 (internal quotations and citations
omitted). Because of these factors, there naturally should be “judicial resistance”
19
to recognizing new legal duties or expanding existing ones. Id. at 233, 727
N.Y.S.2d at 13, 750 N.E.2d at 1061. Applying these principles to the Hamilton
plaintiffs’ arguments, the Court observed that a defendant generally does not have
a duty to protect plaintiff from the conduct of others, and that the only recognized
exceptions to this general rule involved cases where the defendant had either a
special relationship with a third-person tortfeasor that encompasses the defendant’s
“actual control of the third person’s actions” (e.g., master-servant) or a special
relationship with a plaintiff who trusted the defendant for protect him from the
conduct of others (e.g., passenger and common carrier). Id. at 233, 727 N.Y.S.2d
at 13, 750 N.E.2d at 1061. The Court further observed that that the Hamilton
plaintiffs’ proposed duty would create “not only an indeterminate class of plaintiffs
but also an indeterminate class of defendants whose liability might have little
relationship to the benefits of controlling illegal guns.” Id. at 236, 727 N.Y.S.2d at
15, 750 N.E.2d at 1063. For all these reasons, the Court refused to impose the
Hamilton plaintiffs’ proposed duty on the defendant gun manufacturers. For
similar reasons, the Court also reaffirmed tort law’s traditional proof-of-causation
requirement and refused to extend the “novel theory” of market liability beyond
cases subject to the “clear policy decision” of the Legislature. Id. at 240, 727
N.Y.S.2d at 18-19, 750 N.E.2d at 1066-67 (describing legislative action as “key”
to any broad change or reform in traditional tort rules). Accord People ex rel.
20
Spitzer v. Sturm, Ruger & Co., 309 A.D.2d 91, 761 N.Y.S.2d 192 (1st Dept. 2003)
(rejecting “public nuisance” theory of liability alleged against same products for
the reasons expressed in Hamilton).5
The Court applied these principles in the asbestos context in NYC Asbestos I.
The plaintiffs were bystanders (usually spouses) who had never worked directly
with asbestos-containing products. They asserted that the defendant (a large
employer) could “foresee” their exposure to asbestos while laundering the
defendants’ employees’ clothes. 5 N.Y.3d at 494, 806 N.Y.S.2d at 150, 840
N.E.2d at 119. NYC Asbestos I rejected a “dialectical approach” that would have
“factor[ed] foreseeability into the determination of whether a duty existed.” Id. at
496, 806 N.Y.S.2d at 152, 840 N.E.2d at 121. Following Hamilton, the Court
5 Hamilton was hardly the only attempt made to extend market share liability
beyond the scope of the DES-specific legislation that both supported and limited
liability under Hymowitz. See Brenner v. American Cyanamid Co., 263 A.D.2d
165, 170-73, 699 N.Y.S.2d 848, 851-52 (4th Dept. 1999) (rejecting market share
liability in lead paint litigation); In re New York State Silicone Breast Implant
Litigation, 166 Misc.2d 85, 89-90, 631 N.Y.S.2d 491, 494 (Sup. N.Y. Co. 1995)
(same, breast implants), aff’d mem., 234 A.D.2d 28, 650 N.Y.S.2d 558 (1st Dept.
1996); Catherwood v. American Sterilizer Co., 139 Misc.2d 901, 907, 532
N.Y.S.2d 216, 220 (Sup. Erie Co. 1988) (same, toxic chemical); S.F. v. Archer
Daniels Midland Co., 594 F. Appx. 11, 13 (2d Cir. 2014) (same, corn syrup); 210
E. 86th St. Corp. v. Combustion Engineering, 821 F. Supp. 125, 145-46 (S.D.N.Y.
1993) (same, asbestos). Expanded liability for “generic, fungible, unbranded
components,” as championed by Plaintiff’s amici, is essentially an attempt to
resurrect market share liability in asbestos litigation. See Brief for Amici Curiae
Retired Enlisted Ass’n & American Merchant Marine Veterans in Support of
Plaintiff-Respondent, at 13-14.
21
again “emphasize[d] our reluctance to extend liability to a defendant for failure to
control the conduct of others.” 5 N.Y.3d at 493, 806 N.Y.S.2d at 150, 840 N.E.2d
at 119 (emphasis added).
The key consideration critical to the existence of a duty in these
circumstances is that the defendant’s relationship with either the
tortfeasor or the plaintiff places the defendant in the best position to
protect against the risk of harm; and that the specter of limitless
liability is not present because the class of potential plaintiffs to whom
the duty is owed is circumscribed by the relationship.
Id. at 494, 806 N.Y.S.2d at 150, 840 N.E.2d at 119 (Hamilton citations omitted).
The defendant’s lack of any “actual control” over the intermediaries who actually
caused the exposure weighed heavily against liability. Id. at 495, 806 N.Y.S.2d at
151, 840 N.E.2d at 120. The Court also refused “to upset our long-settled
common-law notions” because a “line is not so easy to draw” short of “limitless
liability.” Id. at 498, 806 N.Y.S.2d at 153, 840 N.E.2d at 122. Particularly in
asbestos litigation, “expanded duty” inevitably brings about an explosion of new
claims:
While logic might suggest (and plaintiffs maintain) that the incidence
of asbestos-related disease allegedly caused by the kind of . . .
exposure at issue in this case is rather low, experience counsels that
the number of new plaintiffs’ claims would not necessarily reflect that
reality.
Id. at 498, 806 N.Y.S.2d at 153, 840 N.E.2d at 122.
Most recently, in Caronia v. Philip Morris USA, Inc., plaintiffs asked this
Court to approve a new “medical monitoring” cause of action for those who
22
allegedly had been exposed to carcinogens that increased their future disease risk
but who had not yet sustained a legally cognizable injury. The Court refused. The
proposed cause of action was inconsistent with long-settled legal rules holding that
a plaintiff cannot maintain an action in tort without proof of existing injury.
Furthermore, the proposed cause of action threatened to subject defendants to
insurer-like liability, deplete resources available to traditional tort plaintiffs, and
draw New York courts into a maze of complicated scientific and public policy
disputes. Given these concerns, the Court determined that it should exercise
restraint and defer to the Legislature, which was “plainly in the better position to
study the impact and consequences of creating such a cause of action, including the
costs of implementation and the burden on the courts in adjudicating such claims.”
Caronia v. Philip Morris USA, Inc., 22 N.Y.3d 439, 452, 982 N.Y.S.2d 40, 47, 5
N.E.3d 11, 18 (2013); see also Hall, 76 N.Y.2d at 34, 556 N.Y.S.2d at 25, 555
N.E.2d at 277 (exercising restraint and deferring to Legislature in light of its
superior “resources and procedural means to discern the public will, to examine the
variety of pertinent considerations, to elicit the views of the various segments of
the community that would be directly affected” and in any event critically
interested in the imposition of liability for alleged misuse of a lie detector test).
The Court should follow the same prudent course here, and should not
deviate from the general rule and narrowly defined exceptions established in
23
Rastelli. Rather, it should exercise caution and restraint, reaffirm Rastelli, reject
the approaches of the Supreme Court and the Appellate Division, and defer any
question of legal reforms to the Legislature.
C. An Expansive Duty To Warn About Hazards Posed By
Others’ Products Would Contravene Traditional Tort
Principles, Create Insurer-Like Liability For A Wide Range
Of Defendants, And Impose Enormous Costs On Consumers
And Society.
A legal duty to warn about other products that a defendant did not make or
sell would effect a significant change in long-settled tort principles. Plaintiff did
not purchase any product, so liability would extend to an indeterminate class
consisting of the public as a whole. Plaintiff’s proposed liability bears no
relationship to the historic roots of product liability—that a defendant’s benefit
from and control over manufacture and marketing of hazardous products justifies
liability. Because of these difficulties, a precedential ruling by this Court
recognizing such a legal duty would propel New York courts into a broad range of
complex public policy issues about what is “sufficiently significant” and to impose
unforeseeable costs on consumers and society as a whole.
These grounds support a decision that affirms Rastelli, and rejects the
approaches of the Supreme Court and the Appellate Division. An expansive
common law duty to warn about hazards posed by others’ products—i.e., a duty to
warn under circumstances where it arguably was “foreseeable” that the defendant’s
24
product would be used in conjunction with the hazardous product of another or
where the defendant arguably had some “role, interest, or influence” in a decision
to use its product in conjunction with the hazardous products of others—would
contravene traditional tort principles, create insurer-like liability for a wide range
of defendants; and impose enormous costs on consumers and society.
For many decades, this Court has recognized that an individual who places a
defective product “into the stream of commerce” may be held “strictly” liable for
injuries caused by that product, “regardless of privity, foreseeability or reasonable
care.” Amatulli by Amatulli v. Delhi Const. Corp., 77 N.Y.2d 525, 532, 569
N.Y.S.2d 337, 340, 571 N.E.2d 645, 648 (1991); Sprung v. MTR Ravensburg Inc.,
99 N.Y.2d 468, 472-73, 758 N.Y.S.2d 271, 273, 788 N.E.2d 620, 622 (2003). As
defined by this Court, a “defect” “may consist of a mistake in manufacturing, an
improper design[,] or the inadequacy or absence of warnings” concerning the use
of the product. Amatulli, 77 N.Y.2d at 532, 569 N.Y.S.2d at 340, 571 N.E.2d at
648; see also Codling v. Paglia, 32 N.Y.2d 330, 340, 345 N.Y.S.2d 461, 468, 298
N.E.2d 622, 627 (1973); Micallef v. Miehle Co., 39 N.Y.2d 376, 383, 384
N.Y.S.2d 115, 119, 348 N.E.2d 571, 575-76 (1976); Torrogrossa v. Towmotor Co.,
44 N.Y.2d 709, 711, 405 N.Y.S.2d 448, 449, 376 N.E.2d 920, 921 (1978); Voss v.
Black & Decker Mfg. Co., 59 N.Y.2d 102, 106-107, 463 N.Y.S.2d 398, 401, 450
N.E.2d 204, 207 (1983); Sprung, 99 N.Y.2d at 472, 758 N.Y.S.2d at 273, 788
25
N.E.2d at 622. Strict liability for defective products applies not only to those who
design and manufacture products but also to those who market and distribute
products in the ordinary course of their businesses. Sukljian v. Charles Ross & Son
Co., 69 N.Y.2d 89, 95, 511 N.Y.S.2d 821, 823, 503 N.E.2d 1358, 1360 (1986).
Imposition of such “onerous” liability rests “largely on considerations of
public policy.” Id. (citing Victorson v. Bock Laundry Mach. Co., 37 N.Y.2d 395,
401, 373 N.Y.S.2d 39, 335 N.E.2d 275 (1975); Restatement (Second) of Torts
§ 402A comment c; and Prosser & Keeton, Torts § 98 (5th ed)). “Given the
increased complexity of modern products and modern production methods, most
often only the manufacturer ‘can fairly be said to know and to understand when an
article is suitably designed and safely made for its intended purpose’; by the same
token, the manufacturer most often ‘alone has the practical opportunity, as well as
a considerable incentive, to turn out useful, attractive, but safe products.’”
Sukljian, 69 N.Y.2d at 95, 511 N.Y.S.2d at 823, 503 N.E.2d at 1360 (quoting
Codling, 32 N.Y.2d at 340, 341, 345 N.Y.S.2d at 468, 298 N.E.2d at 627); see also
Sprung, 99 N.Y.2d at 472, 758 N.Y.S.2d at 273, 788 N.E.2d at 622 (same).
Decades of this Court’s precedent thus recognizes the role of manufacturer in
26
product liability as fundamental—the antithesis of “hair splitting,” as certain of
Plaintiff’s amici misrepresents it.6
Those who market and distribute products in the ordinary course of their
businesses similarly have “assumed” a “special” position vis-à-vis the public,
which “has come to expect them to stand behind their goods.” Sukljian, 69 N.Y.2d
at 95, 511 N.Y.S.2d at 823, 503 N.E.2d at 1360, quoted in Sprung, 99 N.Y.2d at
472, 758 N.Y.S.2d at 273, 788 N.E.2d at 622. Like manufacturers, those who
market and distribute products in the ordinary course of their businesses generally
are in a superior position to know whether a product is suitably designed and
correctly made, and they have the ability and incentive to promote and distribute
useful, benefical, and safe products. Sukljian, 69 N.Y.2d at 95, 511 N.Y.S.2d at
823, 503 N.E.2d at 1360 (observing that those who regularly market and sell goods
have long-term relationships with manufacturers and can “exert pressure for the
improved safety of products”).
Furthermore, those who “who produce and market products” are better able
to shoulder the costs associated with injuries arising from defective products
because such costs can be treated as business expenses and either factored into the
6 Brief for Amici Curiae Retired Enlisted Ass’n & American Merchant Marine
Veterans, at 12.
27
price of goods or covered by insurance. Sprung, 99 N.Y.2d at 473, 758 N.Y.S.2d
at 274, 788 N.E.2d at 623.
None of these public policy considerations applies when an defendant does
not participate in design, manufacture, or distribution of a given product. One who
does not place a product in the stream of commerce or participate in the chain of
distribution for a product generally is not in a position “‘to know and to understand
when an article is suitably designed and safely made for its intended purpose.’”
Sukljian, 69 N.Y.2d at 95, 511 N.Y.2d at 823, 503 N.E.2d at 1360. Furthermore,
such entities generally have no ability to ensure that someone else’s products are
being safely designed, manufactured, and distributed. For the same reasons, non-
manufacturers do not have the ability to spread costs of product-related injuries
either as business expenses or via insurance. Imposition of strict liability on those
who do not participate in design, manufacture, or distribution of a given product
would be insurer-like liability, pure and simple, with no little (or no) relationship to
a defendant’s ability to control the manufacture or distribution of any hazardous
products. Liability costs, of necessity, would only raise the price of whatever non-
defective products (or services) such defendants actually did market.
Indeed, imposition of strict liability on someone who does not participate in
design, manufacture, or distribution of a given product would threaten to
undermine product safety, as those who actually have control over the manufacture
28
and distribution of hazardous products could try to duck their responsibilities by
shifting liability for their products to those who do not have such control. It could
lead to excessive (and therefore less effective) warnings and conflicting
specifications and instructions from multiple market participants. It likely would
result in expansive and unpredictable litigation and liability—a risk that repeatedly
has been cited by this Court as a reason for rejecting novel tort duties and claims.
The costs that such widespread litigation would impose on society can only
be described as immense. Litigation itself is inherently expensive for parties and
the judiciary itself. It is no answer to suggest that such costs would be “absorbed”
by defendants. Businesses do not “absorb” losses—they pass them along to their
customers. All the costs of imposing strict liability on someone who does not
participate in the design, manufacture, or distribution of a given product, including
the massive transactional costs of large-scale litigation, ultimately would be borne
by the individuals and other businesses who are the defendants’ customers, most of
whom would likewise be entirely innocent of tortious conduct. Many costs would
be borne directly by consumers of the products in question, or by purchasers of the
same defendants’ other products, in the form of higher prices. Costs not so easily
recouped would result in lower compensation to the defendants’ employees, lower
stock prices, and less investment in new ventures. Again, these costs would fall
upon innocent individuals who own stock either directly or through retirement
29
plans, or who might have been hired by emerging businesses. Metro-North
Community R. Co. v. Buckley, 521 U.S. 424, 435 (1997) (recognizing that judicial
endorsement of new claims inevitably will result in costs borne by all of society,
including through “higher prices”).
For all these reasons, New York and almost every other jurisdiction
traditionally has drawn a clear line, refusing to extend strict liability to individuals
who are outside the chain of distribution for a product. Those who are outside the
chain of distribution generally cannot be held strictly liable for someone else’s
mistake in the product’s manufacturing, an improper design, or absent or
inadequate warnings concerning a product. Rastelli, 79 N.Y.2d at 297-98, 582
N.Y.S.2d at 376-77, 591 N.E.2d at 225-26; see Tortoriello v. Bally Case, Inc., 200
A.D.2d 475, 477, 606 N.Y.S.2d 625, 627 (2d Dept. 1994) (component part
manufacturers not liable for injuries caused by other components they neither made
nor installed).7 It is one thing to hold a defendant strictly liable for a product that
7 Other cases rejecting liability for makers of non-defective component parts
incorporated into a larger, defective unit are: Hothan v. Herman Miller, Inc., 294
A.D.2d 333, 334, 742 N.Y.S.2d 104, 105 (2d Dept. 2002); Ayala v. V & O Press
Co., 126 A.D.2d 229, 234-35, 512 N.Y.S.2d 704, 707 (2d Dept. 1987); Bellantoni
v. General Motors Corp., 2012 WL 1948779, at *5 (S.D.N.Y. May 3, 2012),
adopted, 2012 WL 1948868 (S.D.N.Y. May 30, 2012); Black v. Rawlings
Construction Co., 1997 WL 150121, at *6-7 (S.D.N.Y. March 28, 1997).
By contrast, NYTLA cites (Br. at 9-12) inapposite cases where injury was caused
by defective assemblages of multiple components, not as here, by a risk unique to a
single defective component that the defendant did not make. See Penn v. Jaros,
30
the defendant has designed, made, or distributed. It is a quite another thing to hold
a defendant liable for a product that has been designed, made, or distributed
exclusively by others without the defendant’s involvement in the chain of
distribution. Furthermore, this distinction—between those inside a product’s chain
of distribution and those outside the chain—holds true when a defendant
manufactures or distributes a product that is compatible with the hazardous
products of others and can foresee its product being used in conjunction with, or in
the vicinity of, the hazardous products of others. Rastelli, 79 N.Y.2d at 297-98,
582 N.Y.S.2d at 376-77, 591 N.E.2d at 225-26.8
Baum & Bolles, 25 A.D.3d 402, 403, 809 N.Y.S.2d 6, 8 (1st Dept. 2006) (plaintiff
locked in confined space and suffocated when fire suppression system released
CO2 gas); Rogers v. Sears, Roebuck & Co., 268 A.D.2d 245, 246, 701 N.Y.S.2d
359, 360 (1st Dept. 2000) (injury caused by improper assembly of gas grill); Vill.
of Groton v. Tokheim Corp., 202 A.D.2d 728, 730, 608 N.Y.S.2d 565, 568 (3d
Dept. 1994) (“in combination the sound products, including the [defendant’s]
regulator, created a dangerous condition”); Hess v. Mack Trucks, 159 A.D.2d 557,
558, 552 N.Y.S.2d 423, 424 (2d Dept. 1990) (injury caused when assembled
vehicle overturned).
8 The narrow exceptions to the general rule recognized in Rastelli likewise
reinforce the traditional public policies underlying strict liability, because each of
the exceptions is triggered by some sort of control or contribution by the defendant
to the manufacture, marketing, and distribution of a hazardous product. E.g.,
Rogers, 268 A.D.2d at 246, 701 N.Y.S.2d at 360 (drawing distinction between a
defendant whose product is merely compatible with the hazardous product of
another and a defendant whose product literally requires the hazardous product to
function and who therefore depends on and presumes the manufacture and
distribution of the hazardous product).
31
Several recent decisions follow Rastelli in asbestos litigation. Rejecting the
same arguments Plaintiff makes here, these courts have found Rastelli sound
precedent squarely foreclosing claims like the ones Plaintiff is making. See Surre
v. Foster Wheeler LLC, 831 F. Supp.2d 797, 801 (S.D.N.Y. 2011); Kiefer v. Crane
Co., 2014 WL 6778704, at *5 (S.D.N.Y. Feb. 3, 2014); see also Ferguson v. Air &
Liquid Systems Corp., 2014 WL 7652953, at *15 (E.D. Pa. Dec. 3, 2014) (applying
New York law; refusing to follow the Appellate Division’s decision in this case
because it “does not squarely address the [bare metal defense] or provide further
explanation or analysis” to support the Appellate Division’s ruling).9
Nor, if non-manufacturer warning liability is permitted in asbestos litigation,
will that be the end of it. Generic drugs account for some eighty percent of all
prescription drugs sold. In the wake of U.S. Supreme Court decisions preempting
many claims against makers of generic drugs,10 plaintiffs claiming injury from
generic drugs now seek to sue manufacturers of innovator drugs that they never
9 Plaintiff’s reliance on the brief and cryptic decision in Berkowitz v. A.C. & S.,
Inc., 288 A.D.2d 148, 149, 733 N.Y.S.2d 410, 412 (1st Dept. 2001), and Supreme
Court decisions extending Berkowitz is misplaced. Berkowitz cannot bear the
weight Plaintiff gives it. See Surre, 831 F. Supp. 2d at 802 (“Berkowitz is a one-
paragraph opinion with no clear holding”). Similarly, In re Eighth Judicial Dist.
Asbestos Litig., 129 A.D.3d 1502, 11 N.Y.S.3d 397, 399 (4th Dept. 2015), is a two-
paragraph memorandum simply following the case on review here.
10 Mutual Pharmaceutical Co. v. Bartlett, ___ U.S. ___, 133 S.Ct. 2466 (2013);
PLIVA v. Mensing, ___ U.S. ___, 131 S.Ct. 2567 (2011).
32
took—and whose products have often been driven from the market by generic
competition—because prescribing physicians could have “foreseeably” relied on
those defendants’ warnings years, even decades, before plaintiffs took the generic
drugs. Such claims have failed under New York law, for the same policy reasons
discussed above:
[A]ny duty a brand defendant has in connection with its own products
and labels does not extend to products and labeling over which it has
no control, even if those products and labels mirror its own, because it
has done nothing toward putting them in the hands of consumers. We
predict that the New York Court of Appeals would construe Plaintiffs’
misrepresentation claims as a product liability claim that fails for lack
of product identification, or alternatively that the Brand
Manufacturers did not owe Plaintiffs a duty that could give rise to
liability.
In re Darvocet, Darvon, & Propoxyphene Products Liability Litigation, 756 F.3d
917, 949 (6th Cir. 2014) (applying New York law, and the law of 22 other states).
Accord Goldych v. Eli Lilly & Co., 2006 WL 2038436, at *3-8 (N.D.N.Y. July 19,
2006); Weese v. Pfizer, Inc., 2013 WL 5691993, at *2 (Sup. N.Y. Co. Oct. 8, 2013).
These prescription drug cases underscore the wisdom of deferring to legislative
action something so fundamental as expanding product-related duties beyond
manufacturers and sellers of the actual product. The scope of the “duty” Plaintiff is
asking this Court to create is plainly “expansive and unpredictable.”
Amicus NYTLA demands (Br. at 22-26) that this Court abrogate decades of
precedent and recognize a novel and expanisve legal duty to warn of dangers
33
inherent in the products of others in order to prevent “inequity.” None of
NYTLA’s hypotheticals require disregard of fundamental principles that—from
the dawn of product liability—have kept liability with the responsibility that arises
when one profits from the manufacture or sale of products. The manufacturer of a
defective toy crossbow, for example, is liable because it made and profited from
the crossbow, whether or not the arrows are “replaceable.” The same is true of
NYTLA’s cellphone and punch press hypotheticals. In each instance, a
manufacturer sold, and profited from, a product that created an injury-causing risk
to a would-be plaintiff. The opposite is true here. Plaintiff in this case does not
claim exposure to any asbestos-containing product that Crane ever sold.11
D. Numerous Courts Outside Of New York Have Held That A
Defendant Does Not Have An Expansive Duty To Warn
About Hazards Posed By Others’ Products.
The recent New York decisions cited above are not alone. For years, courts
outside of New York have held that defendants have no expansive duties to act as
watchdogs and warn about hazards posed by products they did not make. These
11 3D printing (NYTLA Br. at 22-24), on the other hand, presents many novel
issues not relevant to this case, since in purchasing a 3D printer an end user is also
voluntarily assuming the role of manufacturer. These novel issues—including 3D
printer warranties/disclaimers, negligent product design (including open-source
designs freely downloadable from the Internet) divorced from manufacture, and
bulk supplier/raw material liability—need not be addressed here, but may well be
resolvable by adhering to the bedrock tort principle that Plaintiff would abandon:
that liability is properly borne by those who profit from the creation of the
defective product.
34
decisions are consistent with Rastelli and other precedents of this Court and
therefore are persuasive.
Maritime Law. In a number of cases virtually identical to this one, courts
applying federal maritime law have held that manufacturers of boilers, pumps,
valves, and other shipboard components not containing any asbestos have no duty
to warn about the hazards posed by asbestos-containing products (typically
insulation or gaskets) manufactured and distributed by third parties, simply
because such other products are compatible with the defendants’ products and so
used by ship-owners.12 In Stark v. Armstrong World Indus., Inc., 21 F. Appx. 371,
381 (6th Cir. 2001), the Sixth Circuit held that boiler makers had no duty to warn
of the dangers of various types of asbestos-containing products manufactured they
never made, but were later attached to boilers post-sale by ship owners. Stark, an
unpublished decision, was reaffirmed in Lindstrom v. A-C Prod. Liability Trust,
424 F.3d 488, 495-97 (6th Cir. 2005), applying Stark to claims asserted against
manufacturers of metal boilers, pumps, and valves. Similarly, the federal court
managing more than 30,000 multi-district asbestos cases (MDL No. 875)
repeatedly has held that, under maritime law, manufacturers of shipboard
12 Maritime law governs tort claims arising from traditional maritime activities
(including ship operations and maintenance) while a ship is sailing in navigable
waters. See Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S.
527, 534 (1995).
35
components generally do not have a duty to warn about the hazards posed by
asbestos-containing products they did not make or distribute,13 where use and
replacement of such components was controlled by ship owners after sale. Other
federal and state courts applying maritime law in asbestos litigation have followed
these well-reasoned decisions.14
13 See Various Plaintiffs v. Various Defendants, 856 F. Supp.2d 703, 712 (E.D. Pa.
2012); Conner v. Alfa Laval, Inc., 842 F. Supp. 2d 791, 797 (E.D. Pa. 2012);
Campbell v. A.W. Chesterton Co., 2012 WL 5392873, at *1 (E.D. Pa. Oct. 16,
2012); Devries v. Gen. Elec. Co., 2014 WL 6746960, at *1 (E.D. Pa. Oct. 3, 2014);
Miller v. A.W. Chesterton Co., 2012 WL 2914180, at *1 (E.D. Pa. May 14, 2012);
Serini v. A.W. Chesterton Co., 2012 WL 2914188, at *1 (E.D. Pa. May 14, 2012);
Lyautey v. Alfa Laval, Inc., 2012 WL 2877377, at *1 (E.D. Pa. March 20, 2012);
Abbay v. Armstrong Int’l, Inc., 2012 WL 975837, at *1 (E.D. Pa. Feb. 29, 2012);
Floyd v. Air & Liquid Sys. Corp., 2012 WL 975615, at *1 (E.D. Pa. Feb. 8, 2012);
In re Asbestos Products Liab. Litig. (No. VI), 2011 WL 346822, at *6 (E.D. Pa.
Jan. 13, 2011), adopted, 2011 WL 359696 (E.D. Pa. Feb. 3, 2011) (all following
Stark, Lindstrom, and/or numerous state-law decisions). Since 2012, literally
dozens of MDL-875 decisions in maritime cases have followed the rulings in
Various Plaintiffs and Conner. E.g., Festa v. Worthington Pumps, Inc., 2014 WL
6746820, at *1 (E.D. Pa. Oct. 10, 2014); Ferguson, 2014 WL 7652953, at *5, 13.
NYTLA cites one outlier maritime law decision. Quirin v. Lorillard Tobacco Co.,
17 F. Supp.3d 760 (N.D. Ill. 2014). Unlike this case, Quirin involved facts
sufficient to establish exposure to the defendant’s products circumstantially, id. at
771-72, but even if it did not, this minority of one admittedly “differs from” the
vast preponderance of maritime law, id. at 771, and is thus unpersuasive.
14 See Nelson v. Air & Liquid Sys. Corp., 2014 WL 6982476, at *12 (W.D. Wash.
Dec. 9, 2014); Vedros v. Northrop Grumman Shipbuilding, Inc., 2014 WL
1093678, at *2-3 (E.D. La. March 14, 2014); Crews v. Air & Liquid Sys. Corp.,
2014 WL 639685, at *5 (N.D.N.Y. Feb. 18, 2014); Cabasug v. Crane Co., 989 F.
Supp.2d 1027, 1034 (D. Haw. 2013); In re Asbestos Litig., 2011 WL 2462569, at
*2-3 (Del. Super. June 7, 2011); In re Asbestos Litig., 2012 WL 1409011, at *6
(Del. Super. April 2, 2012), appeal refused, 44 A.3d 921 (Del. 2012).
36
Washington. In Simonetta v. Viad Corp., 197 P.3d 127, 131-38 (Wash.
2008), and Braaten v. Saberhagen Holdings, 198 P.3d 493, 497-504 (Wash. 2008),
the Supreme Court of Washington held that manufacturers of valves and pumps do
not have a duty to warn about the hazards posed by asbestos-containing products
that are manufactured and distributed by third parties, merely because those
products were compatible with and used by ship owners in conjunction with the
valves and pumps. In each case, the court concluded, under both negligence and
strict liability, that the duty to warn should be “limited to those in the chain of
distribution of the hazardous product.” Simonetta, 197 P.3d at 134; see also
Braaten, 198 P.3d at 504. The court stressed that tort law imposes legal duties and
liability only on those whose conduct or special relationship gives them practical
control over the manufacture and distribution of a hazardous product:
We justify imposing liability on the defendant who, by manufacturing,
selling, or marketing a product, is in the best position to know of the
dangerous aspects of the product and to translate that knowledge into
a cost of production against which liability insurance can be obtained.
Here, [defendant] did not manufacture or market the asbestos
insulation. Nor did [defendant] have control over the type of
insulation the [N]avy selected. Thus, as the following analysis of
these factors establishes, [defendant] is not strictly liable for failure to
warn.
Simonetta, 197 P.3d at 134; Braaten, 198 P.3d at 504. Following Simonetta and
Braaten, in Yankee v. APV N. Am., Inc., 262 P.3d 515, 520-21 (Wash. App. 2011),
a Washington appellate court held that a duty to warn could be triggered by
37
schematics and other documents that referenced third-party asbestos-containing
products. That court held that it could not. Such documents did not mandate
asbestos use, but, even if they did, a manufacturer should not be held liable based
on its specification of certain parts designed, made, and distributed by a third-
party.
California. In O’Neil v. Crane Co., 266 P.3d 987, 991 (Cal. 2012), the
California Supreme Court followed the great weight of precedent and held that “a
product manufacturer may not be held liable in strict liability or negligence for
harm caused by another manufacturer’s product unless the defendant’s own
product contributed substantially to the harm, or the defendant participated
substantially in creating a harmful combined use of the products.” The case
concerned a sailor exposed to asbestos under circumstances virtually identical to
Plaintiff. No warning liability existed outside the chain of distribution of the
asbestos-containing product because “imposition of liability requires a showing
that the plaintiff’s injuries were caused by an act of the defendant or an
instrumentality under the defendant’s control.” O’Neil, 266 P.3d at 996
(emphasis added).15
15 Before and after O’Neil, other courts applying California law in asbestos-
exposure cases have reached the same conclusion. See Paulus v. Crane Co., 69
Cal. Rptr.3d 373, 379 (Cal. App. 2014); Taylor v. Elliott Turbomachinery Co., 90
Cal. Rptr.3d 414, 425 (Cal. App. 2009). See also Garman v. Magic Chef, Inc., 173
Cal. Rptr. 20, 22-23 (Cal. App. 1981) (same principle in non-asbestos case);
38
Illinois. In Gillenwater v. Honeywell Int’l, Inc., 996 N.E.2d 1179 (Ill. App.
2013), an asbestos plaintiff asserted liability against a corporate predecessor,
although he was exposed only to a successor’s product. Liability was rejected for
the same fundamental reason that precludes liability here:
Using this reasoning . . . would violate a fundamental tenet of
products-liability law: a manufacturer is responsible only for the
defects in the products it manufactured. . . . Regardless of the theory
which liability is predicated upon, whether negligence, breach of
warranty, strict liability in tort, or other grounds, it is obvious that to
hold a producer, manufacturer, or seller liable . . . there must first be
proof that the defendant produced, manufactured, sold, or was in some
way responsible for the product. A manufacturer owes a duty to
plaintiffs who will use its product or be injured by it, but the
manufacturer does not owe a duty to anyone who uses a product
similar to, but not manufactured by, the manufacturer.
Id. at 1200 (citations and quotation marks omitted). Accord Niemann v. McDonnell
Douglas Corp., 721 F. Supp. 1019, 1030 (S.D. Ill. 1989) (summary judgment
granted because “the asbestos which allegedly caused [decedent’s] death was not
the asbestos which was placed in the aircraft by [defendant]”).16
McGoldrick v. Porter-Cable Tools, 110 Cal. Rptr. 481, 482 (Cal. App. 1973)
(same); In re Deep Vein Thrombosis, 356 F. Supp. 2d 1055, 1062-63 (N.D. Cal.
2005) (same).
16 NYTLA’s unpublished trial orders from Madison County, Illinois, a notoriously
plaintiff-oriented jurisdiction, are unpersuasive in light of Gillenwater, as is Sether
v. Agco Corp., 2008 WL 1701172 (S.D. Ill. March 28, 2008), a fraudulent joinder
decision in which the court was obliged “to resolve all doubts in favor of remand,
and to construe the factual record in this case most strongly against removal. Id. at
*4.
39
Numerous other decisions agree with these courts that a defendant may not
be held liable for failing to warn about the hazards posed by products that are
manufactured and distributed by others simply because the defendant’s products
were compatible with and used near or in conjunction with the hazardous third-
party product.
Alabama: Sanders v. Ingram Equip., Inc., 531 So. 2d 879, 880 (Ala.
1988) (non-asbestos case); Presley v. Bill Vann Co., Inc., 2015 WL
4641538, at *2-3 (S.D. Ala. Aug. 4, 2015); Morgan v. Bill Vann Co.,
969 F. Supp.2d 1358, 1364-67 (S.D. Ala. 2013) (asbestos claims
against valve and pump manufacturer).
Connecticut: Abate v. AAF-McQuay, Inc., 2013 WL 812066, at *3
(Conn. Super. Jan. 29, 2013); In re Asbestos Litig., 2012 WL
1415709, at *1 (Del. Super. March 2, 2012) (applying Connecticut
law) (asbestos claims against valve manufacturer); In re Asbestos
Litig., 2011 WL 379327, at *1 (Del. Super. Jan. 19, 2011) (applying
Connecticut law).17
Delaware: In re Asbestos Litig., 2013 WL 4493568, at *2 (Del.
Super. Aug. 19, 2013); In re Asbestos Litig., 2011 WL 5340597, at *1
(Del. Super. Oct. 5, 2011) (asbestos claims against valve
manufacturer); Bernhardt v. Ford Motor Co., 2010 WL 3005580, at
*1 (Del. Super. July 30, 2010); Wilkerson v. Am. Honda Motor Co.,
2008 WL 162522, at *2 (Del. Super. Jan. 17, 2008).
Florida: Faddish v. Buffalo Pumps, 881 F. Supp.2d 1361, 1372-73
(S.D. Fla. 2012) (asbestos claims against, inter alia, valve
manufacturer).
17 NYTLA cites one older Connecticut trial court opinion, Fortier v. A.O. Smith
Corp., 2009 WL 455424, at *3 (Conn. Super. Jan. 13, 2009). Fortier offers no
rationale for its result beyond extreme reluctance to grant summary judgment
under any circumstances, and is contrary to all more recent decisions applying
Connecticut law.
40
Georgia: Toole v. Georgia-Pac., LLC, 2011 WL 7938847, at *7 (Ga.
App. Jan. 19, 2011); Reed v. American Steel & Wire Corp., 2014 WL
3674678, at *2 (Ga. Super. July 21, 2014) (asbestos claims against
valve manufacturer); Thurmon v. A.W. Chesterton, Inc., 61 F.Supp.3d
1280, 1284-86 (N.D. Ga. 2014) (asbestos claims against valve
manufacturer).
Hawaii: Acoba v. General Tire, Inc., 986 P.2d 288, 304-05 (Haw.
1999) (tire rim case like Rastelli); Exxon Shipping Co. v. Pacific
Resources, Inc., 789 F. Supp. 1521, 1527 (D. Haw. 1991) (non-
asbestos case).18
Idaho: In re Asbestos Litig., 2011 WL 322674, at *1-2 (Del. Super.
Jan. 18, 2011) (applying Idaho law) (asbestos claims against, inter
alia, valve manufacturer).
Kentucky: Martin v. Cincinnati Gas & Elec. Co., 561 F.3d 439, 443
(6th Cir. 2009) (applying Kentucky law).19
Maryland: May v. Air & Liquid Sys. Corp., 100 A.3d 1284, 1293
(Md. App. 2014); Ford Motor Co. v. Wood, 703 A.2d 1315, 1332
(Md. App. 1998);20 In re Asbestos Litig., 2012 WL 1996533, at *2
(Del. Super. June 1, 2012) (applying Maryland law) (asbestos claims
against valve manufacturer).
Massachusetts: Whiting v. CBS Corp., 982 N.E.2d 1224 (Mass. App.
2013) (asbestos claims against, inter alia, valve manufacturer);
Dombrowski v. ALFA Laval, Inc., 2010 WL 4168848 (Mass. Super.
July 1, 2010) (asbestos claims against valve manufacturer); In re
Asbestos Litig., 2012 WL 1694442, at *1 (Del. Super. May 14, 2012)
(applying Massachusetts law).
18 The unpublished Hawaii trial court minute order NYTLA cites is not consistent
with Acoba, and thus does not represent the law of Hawaii.
19 NYTLA cites only a two-line footnote in a non-precedential decision. Branon v.
General Electric Co., 2005 WL 1792122, at *2, n.6 (Ky. App. 2005).
20 Abrogated on other grounds, John Crane, Inc. v. Scribner, 800 A.2d 727 (Md.
2002).
41
Michigan: Brown v. Drake-Willock Int’l, Ltd., 530 N.W.2d 510, 514-
15 (Mich. App. 1995) (non-asbestos case).
Minnesota: Nelson v. 3M Co., 2011 WL 3983257 (Minn. Dist. Aug.
16, 2011) (asbestos claims against valve manufacturer).
Maine: Richards v. Armstrong Int’l, Inc., 2013 WL 1845826, at *4
(Me. B.C.D. Jan. 25, 2013) (asbestos claims against valve
manufacturer); Rumery v. Garlock Sealing Technologies, Inc., 2009
WL 1747857 (Me. Super. April 24, 2009).
Mississippi: Dalton v. 3M Co., 2013 WL 4886658, at *10 (D. Del.
Sept. 12, 2013) (applying Mississippi law) (asbestos claims against,
inter alia, valve manufacturer), adopted, 2013 WL 5486813 (D. Del.
Oct. 1, 2013).
New Jersey: Hughes v. A.W. Chesterton Co., 89 A.3d 179, 190 (N.J.
Super. App. Div. 2014); Robinson v. Air & Liquid Sys. Corp., 2014
WL 3673030, at *1 (D.N.J. July 23, 2014).21
North Carolina: Harris v. Ajax Boiler, Inc., 2014 WL 3101941, at
*5-6 (W.D.N.C. July 7, 2014).
Ohio: Alexander v. A.W. Chesterton Co., 2014 WL 7190244, at *3
(C.C.P. Ohio July 23, 2014) (asbestos claims against valve
manufacturer); Roberts. v. Adience, Inc., 2014 WL 7190246, at *2
(Ohio C.P. March 4, 2014) (same).
21 NYTLA’s assertion (Br. at 19) that Hughes adopted the same duty at issue here
is simply wrong. Hughes held:
We do not agree that plaintiffs may prove causation by showing
exposure to a product without also showing exposure to an injury-
producing element in the product that was manufactured or sold by
defendant. If that were the case, a manufacturer or seller who failed
to give a warning could be strictly liable for alleged injuries long after
the product entered the marketplace even if the injury-producing
element of the product no longer existed.
89 A.3d at 190.
42
Oklahoma: Donnelly v. Kerr-McGee Ref. Corp., 1992 WL 208016,
at *5 (W.D. Okla. April 13, 1992) (non-asbestos case), aff’d, 993 F.2d
1551 (10th Cir. 1993) (table).
Oregon: In re Asbestos Litig., 2012 WL 1415706, at *3-4 (Del.
Super. Feb. 28, 2012) (applying Oregon law) (asbestos claims against
valve manufacturer).
Rhode Island: Henry v. American Honda Motor Co., 2014 WL
6910490, at *7 (D.R.I. Dec. 3, 2014).22
Pennsylvania: Schaffner v. Aesys Techs., LLC, 2010 WL 605275, at
*5-6 (Pa. Super. Jan. 21, 2010) (applying Toth to asbestos claims);
Toth v. Econ. Forms Corp., 571 A.2d 420, 422-23 (Pa. Super. 1990)
(non-asbestos case); Fleck v. KDI Sylvan Pools, Inc., 981 F.2d 107,
118 (3d Cir. 1992) (same) (applying Pennsylvania law); Montoney v.
Cleaver-Brooks, Inc., 2012 WL 359523 (Pa. C.P. Jan. 5, 2012); Kolar
v. Buffalo Pumps Inc., 15 Pa. D. & C.5th 38, 45-49 (Pa. C.P. 2010).23
22 Sweredoski v. Alfa Laval, Inc., 2013 WL 5778533 (R.I. Super. Oct. 21, 201),
cited by NYTLA, is inapposite. Unlike here, the Sweredoski court specifically
found that the plaintiff “has, in fact, submitted such evidence” that he had
“encountered [defendant’s]—as opposed to another company’s—asbestos-
containing products.” Id. at *2.
23 Pennsylvania, unlike New York, distinguishes between strict liability and
negligent warning claims. Schwartz v. Abex Corp., ___ F. Supp.3d ___, 2015 WL
3387824 (E.D. Pa. May 27, 2015), refused to extend strict liability outside the
supply chain and rejected negligence liability on bare “foreseeability” as
“creat[ing] an undue burden” and “prohibitive.” Id. at *17-20. Uniquely, and
contrary to Shaffner and Toth, Schwartz allowed negligence liability if a defendant
actually “knew” of future asbestos use. Id. at *21-23 (“potential” liability in two
of seven “scenarios”). In re Asbestos Products Liab. Litig. (No. VI), 2011 WL
5881008, at *1 (E.D. Pa. July 29, 2011), and Chicano v. Gen. Elec. Co., 2004 WL
2250990, at *7 (E.D. Pa. Oct. 5, 2004), cited by NYTLA, are erroneous federal
predictions of Pennsylvania law contrary to multiple appellate decisions, as well as
Schwartz.
43
South Carolina: Baughman v. Gen. Motors Corp., 780 F.2d 1131,
1132-33 (4th Cir. 1986) (tire rim case like Rastelli) (applying South
Carolina law).24
Texas: Walton v. Harnischfeger, 796 S.W.2d 225 (Tex. App. 1990)
(non-asbestos case); Johnson v. Jones-Blair Paint Co., 607 S.W.2d
305, 306 (Tex. App. 1980) (same); Nolen v. A.W. Chesterton Co.,
2004 WL 5047437 (Tex. Dist. July 26, 2004) (asbestos claims against
valve manufacturer); Nolen v. A.W. Chesterton Co., 2004 WL
5047438 (Tex. Dist. Aug. 11, 2004).
Utah: In re Asbestos Litig., 2012 WL 1408982, at *3 (Del. Super.
April 2, 2012) (applying Utah law) (asbestos claims against valve
manufacturer).
Wisconsin: Sawicki v. Allegheny Technologies, Inc., 2013 WL
10982175 (Wis. Cir. Aug. 2, 2013) (asbestos claims against valve
manufacturer).25
In sum, Plaintiff’s approach to creating tort duties is unprincipled and her
advocacy for a duty to warn in this case is dangerously out of step with the
jurisprudence of this and most other courts. This Court’s precedents articulate a
24 Sparkman v. A.W. Chesterton Co., 2015 WL 727937, at *2-3 (D.S.C. Feb. 19,
2015), unlike here, involved formal product specifications.
25 Spychalla v. Boeing Aerospace Operations Inc., 2015 WL 3504927 (E.D. Wis.
June 3, 2015), reconsideration denied, 2015 WL 4130652 (E.D. Wis. July 8,
2015), distinguished Sawicki where an airworthiness certificate that the defendant
“owned or controlled,” specified asbestos replacement parts. Id. at *3-4.
Virginia-law trial court decisions cited by NYTLA ignore the Virginia Supreme
Court’s holding that the duty to warn “has no application” where the defendant
“was not the manufacturer of the [product] or any of its component parts.” Baker
v. Poolservice Co., 636 S.E.2d 360 (Va. 2006). NYTLA also cites Foreman v.
A.O. Smith Corp., 2014 WL 1321057 (Mo. Cir. Jan. 16, 2014), where the record,
unlike here, showed the defendant actually “recommend[ing] and specify[ing] use
of asbestos-containing component parts” in conjunction with its product. Id. at *3.
44
policy of judicial resistance to the expansion of duty in tort cases, recognizing that
the Court should strive for clear, reasonable, and circumscribed common law rules,
avoid dramatic change in long-standing legal principles, and exercise restraint
when faced with potential insurer-like liability and other unforeseeable
consequences. Following its usual approach to proposals to increase tort liability,
the Court should reject the duty Plaintiff seeks in this case. That duty would
contravene traditional tort principles, create insurer-like liability for a wide range
of defendants, impose enormous costs on consumers and society, and entangle
New York courts in intractable policy disputes. This Court should decline to
embark on such a path and should leave any change in liability principles to the
Legislature.
II. This Court Should Reject The Heeding Presumption Charged By
The Supreme Court Because It Reverses The Burden Of Proof On
Causation, Contrary To This Court’s Precedent.
During trial, Mr. Dummitt testified that, if Crane had sold its non-asbestos-
containing products with warnings about the possible presence of asbestos in other,
adjacent products, he would have read and heeded the warnings. Briefly, he stated
that his Navy responsibilities brought him into contact with manuals and other
information concerning maritime equipment, and in response to a warning he
would have taken steps to reduce his exposure to asbestos dust from such products
used in connection with Crane’s valves (R. 5512-14). While an argument could be
45
made that the admission of this testimony was improper, the legal issue before the
Court does not turn on factual details, and PLAC does not argue in this appeal that
the jury improperly heard this testimony.
However, instead of holding Plaintiff to her burden of proof concerning
what is inherently self-serving testimony, the trial court instructed the jury to
follow a “heeding presumption” that placed the burden of establishing lack of
causation on Crane:
Mr. Dummitt contends that he would have heeded warnings and not
have been injured. Mr. Dummitt is entitled to the presumption that
had proper and adequate warnings been given regarding the use of the
product, the warnings would have been heeded and injury avoided.
(R. 2033). The Appellate Division excused this instruction as “irrelevant” because
Plaintiff “did not rely on any such presumption” in light of his affirmative
testimony. In re New York City Asbestos Litigation, 121 A.D.3d 230, 253, 990
N.Y.S.2d 174, 191 (1st Dept. 2014) (“NYC Asbestos II”). However, Mr. Dummitt
was an “interested witness,” and as such a properly charged jury “could have
declined to credit this [warning causation] testimony.” Cohen v. St. Regis Paper
Co., 64 N.Y.2d 656, 658, 485 N.Y.S.2d 246, 247, 474 N.E.2d 606, 607 (1984).
Regardless of Plaintiff’s reliance or non-reliance on the challenged
instruction, the fact remains that the jury was instructed improperly on the burden
of proof in this warning case. The Court recognizes the centrality of the burden of
proof, and has repeatedly found erroneous instructions on this issue to be reversible
46
error. Failure to charge properly on the burden of proof is “plainly wrong, [and]
seriously prejudicial.” Noseworthy v. City of New York, 298 N.Y. 76, 81, 80
N.E.2d 744, 746 (1948). Such a failure “deprive[s]” the disadvantaged party “of
[its] right to have [the] cause go to the jury on an accurate statement of the simple
rules applicable thereto.” Id.
An erroneous presumption requires a new trial because “general instructions
cannot be deemed sufficient to keep the burden where it belongs when [a]
presumption has been charged.” People v. Getch, 50 N.Y.2d 456, 464, 429
N.Y.S.2d 579, 583, 407 N.E.2d 425, 429 (1980). Instructing the jury on a
“presumed fact” when it was “not a presumption which must be rebutted but rather
an inference” is “reversible error” because “the effect of the instruction was to shift
the burden of proof.” People v. Mertz, 68 N.Y.2d 136, 148, 506 N.Y.S.2d 290,
297, 497 N.E.2d 657, 664 (1986). Accord Neuwirth v. Blue Cross & Blue Shield of
Greater New York, 62 N.Y.2d 718, 719, 465 N.E.2d 353, 354, 476 N.Y.S.2d 814,
815 (1984) (“the trial court properly ordered a new trial after it recognized that it
had erroneously charged the jury that [defendant] had the burden of proof”).26 The
26 See also Noah v. Bowery Savings Bank, 225 N.Y. 284, 289, 122 N.E. 235, 236
(1919) (“[u]pon whom rests the burden of proving a fact cannot be said to be
immaterial”; “The error in this particular requires a new trial.”); Whitlatch v.
Fidelity & Casualty Co. of New York, 149 N.Y. 45, 49, 51, 43 N.E. 405, 406, 407
(1896) (“where the evidence on both sides is largely circumstantial, it is of vital
importance that the jury should be clearly instructed as to the burden of proof”;
failure “was obvious error, and calculated to still further mislead the jury as to the
47
error here, relieving Plaintiff of her burden of proof on causation and imposing it
instead on Crane, cannot be dismissed as harmless merely because Plaintiff put on
evidence. A properly instructed jury might not have credited such evidence, or
might have weighed it and found that it did not satisfy Plaintiff’s actual burden of
proof.
A. Under New York Law Plaintiff Bears The Burden Of
Proving Causation In Warning-Based Product Liability
Actions.
Because an erroneous jury instruction on something as fundamental as the
burden of proof cannot be waved aside as the Appellate Division here sought to do,
the Court should reverse. A “heeding presumption” based on an unknown,
burden of proof”); Cochran v. Dinsmore, 49 N.Y. 249, 252, 4 Sickels 249 (1872)
(“the court erred in holding that the burden rested with the defendant to exculpate
[itself] from blame”).
Errors affecting the burden of proof routinely require new trials in Appellate
Division cases. E.g., Nelson v. Shaner Cable, Inc., 56 A.D.3d 1283, 1284, 867
N.Y.S.2d 830, 831 (4th Dept. 2008); Pagnotta v. Diamond, 51 A.D.3d 1099, 1101,
857 N.Y.S.2d 773, 774 (3d Dept.. 2008) (reversible error even though
unpreserved); Imbierowicz v. A.O. Fox Memorial Hospital, 43 A.D.3d 503, 504,
841 N.Y.S.2d 168, 172 (3d Dept. 2007); Brignoli v. Balch, Hardy & Scheinman,
Inc., 178 A.D.2d 290, 291, 577 N.Y.S.2d 375, 375-76 (1st Dept. 1991); Wilson v.
Nationwide Mutual Insurance Co., 168 A.D.2d 912, 912, 565 N.Y.S.2d 643, 643
(4th Dept. 1990); J. Baranello & Sons v. Chase Manhattan Bank, N.A., 119 A.D.2d
550, 500 N.Y.S.2d 727, 728 (2d Dept. 1986); Beece v. Guardian Life Insurance
Co., 110 A.D.2d 865, 867, 488 N.Y.S.2d 422, 424 (2d Dept. 1985).
Likewise, in federal court “it is accepted that an error in instructing a jury on the
burden of proof is ordinarily harmful.” Terra Firma Investments (GP) 2 Ltd. v.
Citigroup Inc., 716 F.3d 296, 298 (2d Cir. 2013) (collecting Second Circuit
precedent).
48
hypothetical warning is incompatible with established New York law. This Court
has repeatedly held that “[i]n order to prevail at trial in a negligence case, a
plaintiff must establish by a preponderance of the evidence that the defendant’s
negligence was a proximate cause of plaintiff’s injuries.” Burgos v. Aqueduct
Realty Corp., 92 N.Y.2d 544, 550, 684 N.Y.S.2d 139, 141, 706 N.E.2d 1163, 1165
(1998).27 “The burden of proof to establish causal negligence is upon the
plaintiff.” Hirsh v. State, 8 N.Y.2d 125, 127, 202 N.Y.S.2d 296, 298, 168 N.E.2d
372, 373 (1960). “It is well settled that a plaintiff must generally show that the
defendant’s negligence was a substantial factor in producing the injury to satisfy
the burden of proving a prima facie case.” Wild v. Catholic Health System, 21
N.Y.3d 951, 954-55, 969 N.Y.S.2d 846, 848, 991 N.E.2d 704, 706 (2013).28
27 In cases predicated on failure to warn, “New York views negligence and strict
liability claims as equivalent.” Martin v. Hacker, 83 N.Y.2d 1, 9 n.1, 607
N.Y.S.2d 598, 601 n.1, 628 N.E.2d 1308, 1311 n.1 (1993).
28 Blake v. Neighborhood Housing Services, 1 N.Y.3d 280, 771 N.Y.S.2d 484, 803
N.E.2d 757 (2003), cited by Plaintiff (Br. at 67), involved a statutory presumption
about scaffolding, and had nothing to do with product liability, warnings, or the
sort of common-law presumption asserted here. Green v. William Penn Life
Insurance Co., 12 N.Y.3d 342, 879 N.Y.S.2d 822, 907 N.E.2d 700 (2009) (see Pl.
Br. at 68), involved the well-established presumption against suicide, and likewise
did not involve warnings or product liability.
49
Tellingly, this Court has never recognized any presumption—such as the
“presumption of due care” permitted in some states29—with respect to causation in
tort cases. At most, before the demise of contributory negligence as an affirmative
defense, the Court allowed jurors to infer lack of such negligence on the part of
deceased or amnesiac plaintiffs, where the defendant, not the plaintiff, bore the
ultimate burden of proof. Even as part of an affirmative defense, New York law
never recognized any presumption of the sort advocated by Plaintiff. “The rule [in
contributory negligence cases] does not entitle the jury to presume plaintiff
exercised due care at the time of the accident nor does it shift the burden of proof:
plaintiff must still establish a prima facie case.” Sawyer v. Dreis & Krump
Manufacturing Co., 67 N.Y.2d 328, 333-34, 493 N.E.2d 920, 923, 502 N.Y.S.2d
696, 699 (1986).30
On numerous occasions the Appellate Division has adhered to the traditional
burden of proof in product liability litigation, specifically in cases involving
warnings. “[I]n any products liability case, the plaintiff in an action premised on
inadequate warnings must prove causation.” Estrada v. Berkel Inc., 14 A.D.3d
29 See, e.g., Marks v. Swayne, 701 A.2d 224, 226 (Pa. 1997) (abolishing
presumption of due care on the part of deceased plaintiffs).
30 To support such an inference, the Court further required proof of the underlying
facts by a stricter “clear and convincing” evidence standard. Schechter v. Klanfer,
28 N.Y.2d 228, 233, 321 N.Y.S.2d 99, 103, 269 N.E.2d 812, 815 (1971).
50
529, 530, 789 N.Y.S.2d 172, 174 (2d Dept. 2005). “[A] plaintiff whose claim is
based on inadequate warnings must prove . . . that if adequate warnings had been
provided, the product would not have been misused.” Banks v. Makita U.S.A., 226
A.D.2d 659, 660, 641 N.Y.S.2d 875, 877 (2d Dept. 1996). “Plaintiffs had the
burden to show that had a different warning been given, this patient would not
have used the product that caused her injury.” Mulhall v. Hannafin, 45 A.D.3d 55,
60, 841 N.Y.S.2d 282, 287 (1st Dept. 2007).
In Reis v. Volvo Cars, Inc., 73 A.D.3d 420, 901 N.Y.S.2d 10 (1st Dept.
2010), the court held that the plaintiff’s “failure to warn claims should have been
dismissed because . . . there is no proof in the record that [plaintiff] would have
read and heeded a warning had one been given.” Id. at 423, 901 N.Y.S.2d at 13.
Reis followed Sosna v. American Home Products, 298 A.D.2d 158, 748 N.Y.S.2d
548 (1st Dept. 2002), a prescription drug case holding that:
Contrary to plaintiff’s argument, in this state, it remains plaintiff’s
burden to prove that defendant’s failure to warn was a proximate
cause of his injury and this burden includes adducing proof that the
user of a product would have read and heeded a warning had one been
given.
Id. at 158, 748 N.Y.S.2d at 549. Accord Santos v. Ford Motor Co., 69 A.D.3d 502,
503, 893 N.Y.S.2d 537, 538 (1st Dept. 2010) (quoting and following Sosna).31
31 See also Menna v. Walmart, 40 Misc.3d 1221(A), 975 N.Y.S.2d 710 (table),
2013 WL 3958247, at *2 (Sup. Suffolk Co. 2013) (plaintiff “must adduce proof
that he or she would have read and heeded a warning had one been given”); Zapata
51
Federal courts applying New York law also have held that “[a] plaintiff
proceeding under a failure-to-warn theory in New York must demonstrate that the
failure to warn adequately of the dangers of a product was a proximate cause of his
or her injuries.” Bravman v. Baxter Healthcare Corp., 984 F.2d 71, 75 (2d Cir.
1993).
In a failure-to-warn action, a plaintiff bears the burden to prove that
defendant’s failure to warn was a proximate cause of his injury and
this burden includes adducing proof that the user of a product would
have read and heeded a warning had one been given. In the case of
prescription medications, where warnings are directed to prescribing
physicians, a plaintiff must demonstrate that had a different, more
accurate warnings been given, his physician would not have
prescribed the drug in the same manner.
Alston v. Caraco Pharmaceutical, Inc., 670 F. Supp.2d 279, 285 (S.D.N.Y. 2009)
(citation to Sosna omitted). Accord McDowell v. Eli Lilly & Co., 58 F. Supp.3d
391, 408 (S.D.N.Y. 2014) (“a plaintiff must demonstrate” that “a different, more
accurate warning” would have “changed” the decision to use the product); Hayes v.
New York, 2013 WL 5278879, at *15 (N.D.N.Y. Sept. 18, 2013) (“Plaintiff has
v. Ingersoll Rand Co., 36 Misc.3d 1230(A), 959 N.Y.S.2d 93 (table), 2012 WL
3553111, at *11 (Sup. Kings Co. 2012) (“under well settled law, to prove
proximate cause, a plaintiff has the obligation to adduce proof that had a warning
been provided, he or she would have read the warning and heeded it”); Granata v.
Sub-Zero Freezer Co., 12 Misc.3d 1155(A), 819 N.Y.S.2d 210 (table), 2006 WL
1358468, at *5 (Sup. Richmond Co. 2006) (quoting Sosna), aff’d, 43 A.D.3d 996,
841 N.Y.S.2d 469 (2d Dept. 2007); Power v. Crown Controls Corp., 149 Misc.2d
967, 969, 568 N.Y.S.2d 674, 675 (Sup. New York Co. 1990) (“the injured plaintiff
must, of course, prove that the inadequacy of the warning was a proximate cause of
his injuries”).
52
failed to offer any evidence that even if a different warning had been issued, the
user of the product . . . would have read and heeded that warning”); Cuntan v.
Hitachi KOKI USA, Ltd., 2009 WL 3334364, at *17 (E.D.N.Y. Oct. 15, 2009)
(plaintiff’s burden of proving causation in a warning case “is well settled” law); In
re Aredia & Zometa Products Liability Litigation, 2009 WL 2496873, at *2 (M.D.
Tenn. Aug. 13, 2009) (“[i]t remains Plaintiff’s burden to prove that defendant’s
failure to warn was a proximate cause of her injury, and this burden includes
adducing proof that the user of a product would have read and heeded a warning”)
(applying New York law).
Plaintiff relies on several decisions that—contrary to the authority just
discussed—did permit a heeding presumption under New York law. Pl. Br. at 72-
73. How, then, did New York law become so muddled? One reason is certain
courts’ failure to appreciate the differences between differing kinds of warning
defects. Some warning claims concern the conspicuousness of warnings, as
opposed to their substance. While such claims are recognized under the law,32 they
are uncommon compared to claims, like those here, that allege that the content of
32 “The court must examine not only the meaning and informational content of the
language but also its form and manner of expression.” Martin, 83 N.Y.2d at 10,
607 N.Y.S.2d at 602, 628 N.E.2d at 1312.
53
product warnings was absent or inadequate.33 In conspicuousness cases, the
prominence of a warning bears directly on whether a product user would see it,
which is not so in the usual case involving the substance of warnings (here,
asbestos risks and precautions). This distinction was discussed in Johnson v.
Johnson Chemical Co., 183 A.D.2d 64, 588 N.Y.S.2d 607, 588 N.Y.S.2d 607 (2d
Dept. 1992). The general rule “in any products liability case, [is that] the plaintiff
in an action premised on inadequate warnings must prove causation,” and a
plaintiff in a product misuse case can recover only if “he proves that, [with]
adequate warnings . . . the product in question would not have been misused.” Id.
at 70, 588 N.Y.S.2d at 611. In a warning “prominence” case, however, that
“argument loses its persuasive force”:
A second factor to be considered is the prominence with which such
language is displayed. . . . A consumer such as [plaintiff] who, by her
own admission, tends to ignore one sort of label, might pay heed to a
different, more prominent or more dramatic label.
Id. (factual examples omitted). Plaintiff here, by contrast, asserts no prominence
defect, and could not, since no warning was present.
Cited in Johnson Chemical, id. at 71, 588 N.Y.S.2d at 611-12, was Baker v.
St. Agnes Hospital, 70 A.D.2d 400, 421 N.Y.S.2d 81 (2d Dept. 1979), another
33 Martin, for example, devoted one sentence to non-informational warning claims
and several paragraphs to informational ones. Id. at 10-12, 607 N.Y.S.2d at 601-
03, 628 N.E.2d at 1311-13.
54
prominence case. In Baker, the plaintiff did not criticize a drug warning’s
substance, only that the warning was typically removed by pharmacists before
prescribing physicians received it. Other methods (such as “Dear Doctor” letters)
would have been a “more effective means of communicating its warning.” Id. at
407, 421 N.Y.S.2d at 86. Most of the New York cases Plaintiff cites (Br. at 73-74)
in support of a heeding presumption are warning conspicuousness cases.34 Those
cases, cabined by the language of actually-given warnings, involve none of the
rank speculation created by assuming that any allegedly “adequate” language,
conveyed at unknown times in unknown ways, would have been heeded. Indeed,
many of the conspicuousness cases, like Johnson and Baker, do not purport to shift
the burden of proof, and thus do not support the blanket “heeding presumption”
Plaintiff seeks here.
34 Other New York cases involving causation in the context of allegedly
inconspicuous warnings include: LaPaglia v. Sears Roebuck & Co., 143 A.D.2d
173, 178, 531 N.Y.S.2d 623, 628 (2d Dept. 1988) (ignored warning should have
been more “prominent”); Hoffman-Rattet v. Ortho Pharmaceutical Corp., 135
Misc.2d 750, 756-57, 516 N.Y.S.2d 856, 861 (N.Y. Sup. New York Co. 1987)
(product had “allegedly inadequately conveyed updated warnings”); Monell v.
Scooter Store, Ltd., 895 F. Supp. 2d 398, 414 (N.D.N.Y. 2012) (“location of the
warning was insufficient”); Derienzo v. Trek Bicycle Corp., 376 F. Supp. 2d 537,
568-69 (S.D.N.Y. 2005) (warning allegedly “inconspicuous”); Santoro v.
Donnelly, 340 F. Supp. 2d 464, 490 (S.D.N.Y. 2004) (product should have had an
“exterior warning”); Anderson v. Hedstrom Corp., 76 F. Supp. 2d 422, 441-43
(S.D.N.Y. 1999) (warning should have been “in bold letters on the [product]
itself”).
55
In the federal system, cases attempting to apply New York law are further
confused by language in the Second Circuit’s decision in Liriano v. Hobart Corp.,
170 F.3d 264 (2d Cir. 1999) (“Liriano II”) (applying New York law). The warning
claim in Liriano II was unsupported by any evidence that a warning would have
altered the plaintiff’s conduct, but the jury returned a plaintiff’s verdict anyway.
The Second Circuit shrugged off the lack of any warning causation evidence in
Liriano II, with the comment that the traditional burden of proof, recognized
repeatedly by this Court and lower New York courts, “rested on a false premise.”
Id. at 271. Instead, Liriano II discovered a factual “inference” that “shift[ed]” the
burden of proof:
[Plaintiff] does not bear that burden. When a defendant’s negligent
act is deemed wrongful precisely because it has a strong propensity to
cause the type of injury that ensued, that very causal tendency is
evidence enough to establish a prima facie case of cause-in-fact. The
burden then shifts to the defendant to come forward with evidence
that its negligence was not such a but-for cause. [Where] . . . the
kind of negligence that the jury attributed to the defendant tends to
cause exactly the kind of injury that the plaintiff suffered . . ., rather
than requiring the plaintiff to bring in more evidence to demonstrate
that his case is of the ordinary kind, the law presumes normality and
requires the defendant to adduce evidence that the case is an
exception. Accordingly, in a case like this, it is up to the defendant to
bring in evidence tending to rebut the strong inference, arising from
the accident, that the defendant’s negligence was in fact a but-for
cause of the plaintiff’s injury.
Id. at 271 (emphasis added).
56
Liriano II did not mention, let alone discuss, this Court’s decisions in
Burgos, Hirsh, or Sawyer, supra. Instead, it cited, as supposed precedent for
“shifting” the burden of proof on causation in product liability warning cases,
Martin v. Herzog, 228 N.Y. 164, 126 N.E. 814 (1920), a negligence per se case
involving an accident allegedly caused by nonuse of headlights on a horse-drawn
buggy being driven at night, contravening a statutory requirement. Liriano II did
not recognize, however, that Martin was a contributory negligence case. The
occupants of the buggy—proceeding without lights after dark—were the plaintiffs,
so the burden of proving their negligence rested on the defendant. 228 N.Y. at
166, 126 N.E. at 814. Martin is thus inapposite to a plaintiff’s burden of proof in
cases, such as this, that do not involve an affirmative defense. Moreover, the
“inference” mentioned in Martin, 228 N.Y. at 170, 126 N.E. at 816, satisfied the
defendant’s burden of establishing contributory negligence. It did not “shift” that
burden in any way.
In suggesting that an “inference” could reverse the ordinary burden of proof,
the Second Circuit in Liriano II seriously misread New York law. As this Court
has recognized, “the indiscriminate use of the terms ‘presumption’ and ‘inference’
[has] caused procedural problems.” Morejon v. Rais Const. Co., 7 N.Y.3d 203,
209, 818 N.Y.S.2d 792, 795, 851 N.E.2d 1143, 1146 (2006). “[A]n ‘inference’ and
57
a ‘presumption’ are not identical in scope or effect.” George Foltis, Inc. v. City of
New York, 287 N.Y. 108, 121, 38 N.E.2d 455, 462 (1941).
[A] “presumption” is a rule of law attaching definite probative value
to a specific fact, as distinguished from an “inference,” which is a
permissive conclusion by a trier of the fact, unaided by any rule or
theory of law directly applicable.
People v. Hildebrandt, 308 N.Y. 397, 400, 126 N.E.2d 377, 378 (1955). Inferences
do not shift the burden of proof. “Permissible inferences, based on specified
underlying facts . . . must first be proved before the inference may be drawn.”
People v. Leyva, 38 N.Y.2d 160, 169 n.3, 379 N.Y.S.2d 30, 37 n.3, 341 N.E.2d 546,
552 n.3 (1975). In Zamora v. New York Neurologic Assocs., 19 N.Y.3d 186, 947
N.Y.S.2d 788, 970 N.E.2d 823 (2012), the Court rejected a supposed causation
“presumption” in a workers’ compensation case, holding that the lower court
improperly “created a presumption out of an inference” that “would shift the
burden of proof,” something for which “[t]here is no precedent in our decisions.”
Id. at 192, 947 N.Y.S.2d at 791, 970 N.E.2d at 826.
Indeed, prior to Liriano II, the Second Circuit likewise recognized just that −
what a plaintiff called a “heeding presumption” was really nothing more than a
permissible jury inference:
[Plaintiff] somewhat misstates the matter by asserting that New York
recognizes a “heeding presumption,” but she is correct in contending
that in some circumstances, New York permits the trier to infer that a
warning would have been heeded and thereby to conclude that the
absence of a warning that was reasonably required to be given was a
58
proximate cause of an injury. Appellee cites no New York decision
that refers to a “presumption” of heeding.
Raney v. Owens-Illinois, Inc., 897 F.2d 94, 95 (2d Cir. 1990) (applying New York
law); see Topliff v. Wal-Mart Stores E. LP, 2007 WL 911891, at *43 (N.D.N.Y.
March 22, 2007) (given Raney, court was “skeptical” of Plaintiff’s characterization
of the failure-to-warn law in New York as providing a “presum[ption] that a user
would have heeded the warnings if they had been given”).
Thus the New York federal cases cited by Plaintiff (Br. at 73-75), purporting
to recognize a general heeding presumption, are all ultimately dependent upon the
erroneous decision in Liriano II. Almost all of them either follow Liriano II
directly, or cases such as Anderson v. Hedstrom Corp., 76 F. Supp.2d 422, 441-43
(S.D.N.Y. 1999), that, in turn, relied extensively on Liriano II. See Adesina v.
Aladan Corp., 438 F. Supp.2d 329, 338 (S.D.N.Y. 2006) (citing Liriano II);
Santoro v. Donnelly, 340 F. Supp.2d 464, 490 nn. 153-54 (S.D.N.Y. 2004) (citing
Anderson); G.E. Capital Corp. v. A.O. Smith Corp., 2003 WL 21498901, at *5
(S.D.N.Y. July 1, 2003) (same); cf. Henry v. Rehab Plus Inc., 404 F. Supp.2d 435,
442 (E.D.N.Y. 2005) (citing no New York precedent).35
35 Similar, but more recent, federal cases perpetuating the same error include: Bee
v. Novartis Pharmaceuticals Corp., 18 F. Supp.3d 268, 284 (E.D.N.Y. 2014)
(following Adesina); Roman v. Sprint Nextel Corp., 2014 WL 5026093, at *15
(S.D.N.Y. Sept. 29, 2014) (following Anderson and Fosamax); In re Fosamax
Products Liability Litigation, 924 F. Supp.2d 477, 486 (S.D.N.Y. 2013) (following
Anderson); Monell v. Scooter Store, Ltd., 895 F. Supp. 2d 398, 413 (N.D.N.Y.
59
No support exists in this Court’s precedent for any generally applicable
“heeding presumption” that would shift the burden of proof to the defendant in a
warning-based product liability case, as the jury in this case was charged. Plaintiff
can cite no case in opposition to the general rule, reiterated by this Court on
numerous occasions, that the plaintiff bears the burden of proving causation, just as
plaintiffs bear the burden on every essential element of a product liability case.
Instead, Plaintiff plays the same shell game as in Liriano II, attempting to convert
what is, at most, a permissible jury inference into a mandatory presumption
contrary to both precedent and common sense.36
2012) (following Anderson); Davids v. Novartis Pharmaceuticals Corp., 857 F.
Supp. 2d 267, 286 (E.D.N.Y. 2012) (following Adesina); Williams v. Arctic Cat,
Inc., 2012 WL 6086912, at *1 (N.D.N.Y. Dec. 6, 2012) (following Anderson and
Adesina); Saladino v. Stewart & Stevenson Services, Inc., 704 F. Supp. 2d 237,
249, 2010 WL 1292264 (E.D.N.Y. 2010) (following Anderson and Santoro).
36 Facing a paucity of precedential support, Plaintiff relies (Pl. Br. at 70) on cases
of marginal, if any, relevance, such as an off-hand comment in Applebee v. State,
308 N.Y. 502, 507, 127 N.E.2d 289 (1955), “presum[ing]” that a plaintiff would
have obeyed the simple directive of a stop sign—something required by traffic
laws. O’Brien v. Erie Railroad Co., 210 N.Y. 96, 101, 103 N.E. 895, 897 (1913),
is a century-old railroad case involving scope of duty rather than a presumption.
People v. Morris, 21 N.Y.3d 588, 598, 976 N.Y.S.2d 682, 689, 999 N.E.2d 160,
167 (2013), involves a legal, rather than an evidentiary, presumption: that jurors
follow a court’s jury instruction.
60
B. A Heeding Presumption Makes No Sense As A “Corollary”
To The American Law Institute’s Now Repudiated
“Assumption” That Adequate Warnings Will Be Read And
Heeded.
Plaintiff also seeks to justify a heeding presumption as a “corollary” to the
following language found in one of the comments to Restatement (Second) of
Torts § 402A (1965):
Where warning is given, the seller may reasonably assume that it will
be read and heeded; and a product bearing such a warning, which is
safe for use if it is followed, is not in defective condition, nor is it
unreasonably dangerous.
Restatement (Second) of Torts, §402A, Comment j (1965).
Plaintiff’s brief (p. 70), however, truncates this language—removing the
second phrase. That phrase shows that this part of comment j referred not to
inadequate warnings of the sort alleged here, but to warnings that were adequate as
a matter of law and thus not defective to start with. See Comment j (“a product . . .
which is safe for use if [the warning] is followed”) (emphasis added). However, a
defendant whose warning is legally adequate wins for that reason alone, e.g.,
Martin v. Hacker, 83 N.Y.2d 1, 15-16, 607 N.Y.S.2d 598, 605, 628 N.E.2d 1308,
1315 (1993) (legally adequate warning entitled defendant to summary judgment),
and accordingly needs no “presumption,” “assumption,” or inference of causation
to prevail. “Once the conclusion is reached that the defendant has satisfied this
[warning] duty, the plaintiff’s claim fails at the threshold and the question of
61
individualized causation never arises.” James A. Henderson, Jr., “Doctrinal
Collapse in Products Liability: The Empty Shell of Failure to Warn,” 65 N.Y.U. L.
Rev. 265, 279 (1990). Thus, there is no legitimate “corollary” between comment j
and this case, because the original “read and heed” language was irrelevant to
warning defect cases.37
Another fundamental problem with Plaintiff’s comment j argument is that
this Court has never adopted this particular Restatement comment. Restatement
§402A, comment j has been cited in a grand total of one decision by this Court—
thirty years ago, in a dissent, on a different issue. See Schumacher v. Richards
Shear Co., 59 N.Y.2d 239, 252, 464 N.Y.S.2d 437, 444, 451 N.E.2d 195, 202
(1983) (comment j cited concerning a “duty to become and remain aware of . . .
technical developments”) (Jasen, J., dissenting). Thus, not only is the “read and
heed” language of comment j inapposite as a “corollary” to anything in a warning
defect case, but the comment itself has never been part of New York law.
“New York views negligence and strict liability claims as equivalent.”
Martin v. Hacker, 83 N.Y.2d at 9 n.1, 607 N.Y.S.2d 598, 601 n.1, 628 N.E.2d
1308, 1311 n.1 (1993). Thus, instead of § 402A strict liability or comment j, this
Court has relied upon the negligence standards of Restatement (Second) of Torts
37 Indeed, the whole purpose of the language was to address the standard for the
adequacy of a warning, not causation, i.e., if “follow[ing]” the warning would
render the product “safe,” then it is neither defective nor unreasonably dangerous.
62
§388 (1965). E.g., Cover v. Cohen, 61 N.Y.2d 261, 275-77, 461 N.E.2d 864, 871-
72, 473 N.Y.S.2d 378, 385-85 (1984); Robinson v. Reed-Prentice, 49 N.Y.2d 471,
484-85, 426 N.Y.S.2d 717, 724, 403 N.E.2d 440, 446-47 (1980). Notably, neither
Restatement §388, nor any of its comments, contains language suggesting a
presumption, assumption, inference, or anything else with respect to the reading
and heeding of warnings. To adopt Plaintiff’s heeding presumption, the Court
would have to apply it to negligence as well as strict liability. Plaintiff offers
neither precedent nor policy for taking that giant leap.
Nor should the Court adopt the “read and heed” language of comment j in
this case for the purpose Plaintiff suggests. The portion of comment j upon which
Plaintiff relies has been repudiated by the American Law Institute (“ALI”) itself.
Although intended to apply to assessing the adequacy of a warning, comment j’s
“read and heed” reference was inverted and given an illogical and undesirable
effect in design defect cases Thus, the ALI, in its more recent Third Restatement
of Torts, has explicitly rejected the position that products with open and obvious
design defects are not “defective” in design because users could be presumed to
read and heed adequate warnings of their risks:
The fact that a risk is obvious or generally known often serves the
same function as a warning. However, obviousness of risk does not
necessarily obviate a duty to provide a safer design. Just as warnings
may be ignored, so may obvious or generally known risks be ignored,
leaving a residuum of risk great enough to require adopting a safer
design.
63
Restatement (Third) of Torts, Products Liability §2, comment l (1998).
Comment l’s design-related recognition that “warnings may be ignored” by
consumers is antithetical to Plaintiff’s current use of Restatement §402A, comment
j and to the supposed “corollary” heeding presumption Plaintiff advocates, as
recognized and discussed by the drafters of the Third Restatement:
Much of the problem was created by unfortunate language in the
Restatement, Second, of Torts § 402A, Comment j . . . . The
Comment j presumption embodies the behavioral assumption that
“reasonable” users can be expected to receive, correctly interpret,
and obey every comprehensible warning accompanying every
product they use or encounter . . . . [A]lmost all products present
substantial risks if improperly manufactured, designed, or used . . . .
People would have to read, understand, remember, and follow
innumerable product warnings to protect themselves from all product-
related risks they may confront. Moreover, . . . people must devote
some of their limited time and attention to many other types of
choices. . . . [W]arnings should only be used as a supplement to a
design that already embodies reasonable safety and not as a substitute
for it. . . .
Comment j of the Restatement, Second, is inconsistent with the
judicial abandonment of the patent danger rule and with those cases
that take the position that a warning will not absolve the manufacturer
from the duty to design against dangers when a reasonable, safer
design could have been adopted.
Restatement (Third) of Torts, Products Liability §2, Reporters’ Note to comment l,
at p. 101 (1998) (emphasis added).
This Court’s precedent is not simply consistent with this aspect of the Third
Restatement; it forms the very foundation for it. New York law abolished the
“patent danger” rule—that open and obvious risks were not design defects—in
64
Micallef v. Miehle Co., 39 N.Y.2d 376, 387, 384 N.Y.S.2d 115, 122, 348 N.E.2d
571, 578 (1976) (“the patent-danger doctrine should not, in and of itself, prevent a
plaintiff from establishing his case”). The Third Restatement expressly cites
Micallef as the source of its “Illustration” of the principle that “the fact that the
danger is open and obvious does not bar [a] design defect claim.”38 While certain
product risks may well be sufficiently “open and obvious” so that no warnings are
necessary, no presumption that users “read and heed” warnings immunizes failure
to include safety devices to eliminate obviously dangerous designs. This Court has
“emphasize[d]”:
[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. Thus, where the injured party was
fully aware of the hazard through general knowledge, observation or
common sense, or participated in the removal of the safety device
whose purpose is obvious, lack of a warning about that danger may
well obviate the failure to warn as a legal cause of an injury.
Liriano v. Hobart Corp., 92 N.Y.2d 232, 241, 677 N.Y.S.2d 764, 769, 700 N.E.2d
303, 308 (1998). Plaintiff’s proposed “read and heed” presumption is thus contrary
38 Restatement (Third) of Torts, Products Liability §2, comment d, illustration 3
(1998); see id. Reporters’ Note, at p. 90 (identifying Micallef as the basis for this
illustration).
65
to New York law, not only as to causation in inadequate warning cases, but also
with respect to design defects and patent risks. It should not be adopted here.39
Plaintiff cites a number of decisions from other states that have adopted a
heeding presumption—decisions that reach this result by turning the comment j
“read and heed” language on its head to benefit plaintiffs in warning cases when
the actual language (“the seller may reasonably assume. . .”) was directed to
defendants. See Coffman v. Keene Corp., 628 A.2d 710, 717-19 (N.J. 1993);
Eagle-Picher Industries, Inc. v. Balbos, 604 A.2d 445, 468-69 (Md. 1992); Butz v.
Werner, 438 N.W.2d 509, 517 (N.D. 1989); Payne v. Soft Sheen Products, Inc.,
486 A.2d 712, 725 (D.C. 1985); Technical Chemical Co. v. Jacobs, 480 S.W.2d
602, 606 (Tex. 1972). There are other similar cases Plaintiff does not cite.40 They
share one thing in common—they predate the Third Restatement. Since the ALI
39 For all of these reasons, trial court decisions applying New York law that relied
on comment j to find a heeding presumption are wrongly decided. See Hoffman–
Rattet, 135 Misc.2d at 757, 516 N.Y.S.2d at 861-62; Anderson, 76 F. Supp. 2d at
441.
40 E.g., House v. Armour, Inc., 929 P.2d 340, 347 (Utah 1996); Bushong v. Garman
Co., 843 S.W.2d 807, 811 (Ark. 1992); Arnold v. Ingersoll-Rand Co., 834 S.W.2d
192, 194 (Mo. 1992); Harlow v. Chin, 545 N.E.2d 602, 606 (Mass. 1989); Bloxom
v. Bloxom, 512 So.2d 839, 850 (La. 1987); Wooderson v. Ortho Pharmaceutical
Corp., 681 P.2d 1038, 1057-58 (Kan. 1984); Seley v. G.D. Searle Co., 423 N.E.2d
831, 838 (Ohio 1981); Menard v. Newhall, 373 A.2d 505, 506 (Vt. 1977);
Cunningham v. Charles Pfizer & Co., 532 P.2d 1377, 1382 (Okla. 1974); Dole
Food Co. v. North Carolina Foam Industries, Inc., 935 P.2d 876, 883 (Ariz. App.
1996); Ortho Pharmaceutical Corp. v. Chapman, 388 N.E.2d 541, 555 (Ind. App.
1979).
66
adopted the Product Liability section of the Third Restatement of Torts in 1998,
repudiating its prior “read and heed” language, only one intermediate state court in
a state that had not previously adopted a heeding presumption has recognized
one.41 None has done so in this century. A generalized heeding presumption in
product liability cases is a bad idea whose time has passed. This Court should not
upend settled New York law and create a heeding presumption based on a Second
Restatement comment that: (1) never said what Plaintiffs suggest in the warning
defect context, and (2) which has been repudiated in the design defect context by
the current Restatement (Third) of Torts, Products Liability.
C. A Heeding Presumption Cannot Be Justified On “Public
Policy” Grounds.
Lastly, Plaintiff seeks to justify a heeding presumption on grounds of
“public policy.” Plaintiff certainly cannot justify such a presumption on the basis
of facts or logic. Even proponents of such presumptions concede that “the heeding
presumption is not firmly based on empirical evidence. It is not therefore a
‘natural’ or ‘logical’ presumption.” Coffman, 628 A.2d at 717. Plaintiff’s
argument, for example, that motorists should universally be presumed “to heed a
41 Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614, 620-21 (Pa. Super.
1999), recognized a heeding presumption a few months after the Third
Restatement’s adoption. The Pennsylvania Supreme Court accepted an appeal,
743 A.2d 920 (Pa. 1999), but Coward settled before a decision.
67
light directly over his lane of traffic,” Br. at 73,42 simply ignores reality.43 Most
automobile accidents are not caused by the absence of traffic signs or signals, but
rather by drivers ignoring them: speeding, running stop signs, ignoring brake
lights ahead, and the like.
Nor are the “policies” Plaintiff touts without countervailing drawbacks. The
most recent high court to consider the heeding presumption as a matter of first
impression came to quite a different “policy” conclusion. “[S]hifting the burden of
proving causation to the manufacturer in a strict product liability case, even if it is
a temporary shift, is contrary to this state’s law, as well as public policy.” Rivera
v. Philip Morris, Inc., 209 P.3d 271, 274 (Nev. 2009). The first such policy was
that of the Third Restatement, discussed above, that warnings should not be
substituted for safer designs:
[W]e conclude that public policy is best served by our rejecting a
heeding presumption. As noted in the Restatement (Third) of Torts,
comment j . . . implies that a manufacturer can satisfy its duty of
making products safe by providing adequate warnings. We find such
a result to be untenable. Instead, we strongly adhere to the principle
that a manufacturer must make products that are not unreasonably
dangerous, no matter what instructions are given in the warning.
42 Quoting Wood v. State, 112 A.D.2d 612, 615, 492 N.Y.S.2d 481, 484 (3d Dept.
1985).
43 Even professional truck drivers often ignore flashing lights and warning signs to
their peril, as demonstrated in CNN’s report on North Carolina’s “Can Opener
Bridge” < https://www.youtube.com/watch?v=tpZSg-HTuDI > (last visited Sept.
8, 2015).
68
Therefore, we conclude that it is better public policy not to encourage
a reliance on warnings because this will help ensure that
manufacturers continue to strive to make safe products.
Id. at 277.
The second policy furthered by rejecting a heeding presumption was simple
logic—that such a presumption bore no resemblance to reality:
Further, . . . it is not logical to presume that a plaintiff would have
heeded an adequate warning, if provided. Warnings are everywhere
in the modern world and often go unread or, where read, ignored. For
these reasons, we conclude that a heeding presumption has no place in
our law.
Id. The Montana Supreme Court came to a similar “policy” conclusion in Riley v.
American Honda Motor Co., 856 P.2d 196, 199-200 (Mont. 1993), and added some
of its own, rejecting the argument that “difficulties involved in requiring a plaintiff
to establish . . . causation” justified eliminating the traditional burden of proof:
[E]vidence required to establish this element is not qualitatively
different than other testimony given by a party in support of her or his
prima facie case. Concerns that the testimony may be speculative or
self-serving and that a plaintiff may die before the testimony is given
are not unique to this cause of action. In any event, these concerns are
a red herring in the case before us where [plaintiff] had a full and fair
opportunity to present his case.
Id. at 200.
Nor was it fair to shift the burden of proof where the issue involved a
plaintiff’s conduct, since defendants had no more (and probably less) access to
evidence about plaintiffs’ own conduct than the plaintiffs themselves:
69
In order to rebut a presumption of causation, the defendant would
need to prove that the warning would not have altered the plaintiff's
conduct or that the plaintiff’s own negligence caused the injury. A
defendant certainly is in no better position to rebut a presumption
which totally excuses a plaintiff from meeting the causation element
than a plaintiff is in establishing the causation element as part of the
prima facie case.
Id. (citation omitted).
For these and similar reasons, many jurisdictions do not follow any sort of
heeding presumption. Alabama: Deere & Co. v. Grose, 586 So. 2d 196, 198 (Ala.
1991); California: Huitt v. Southern California Gas Co., 116 Cal. Rptr.3d 453,
467-68 (Cal. App. 2010); Colorado: Potthoff v. Alms, 583 P.2d 309, 311 (Colo.
App. 1978); Connecticut: DeJesus v. Craftsman Machinery Co., 548 A.2d 736
(Conn. App. 1988); Florida: Christopher v. Cutter Laboratories, 53 F.3d 1184,
1192-93 (11th Cir. 1995) (applying Florida law); Iowa: Leaf v. Goodyear Tire &
Rubber Co., 590 N.W.2d 525, 528-29 (Iowa 1999) (rejecting comment j);
Michigan: Muilenberg v. Upjohn Co., 320 N.W.2d 358, 366 (Mich. App. 1982);
Minnesota: Tuttle v. Lorillard Tobacco Co., 377 F.3d 917, 925 (8th Cir. 2004)
(applying Minnesota law); Mississippi: Harris v. International Truck & Engine
Corp., 912 So. 2d 1101, 1109 (Miss. App. 2005); New Hampshire: Wilson v.
Bradlees of New England, Inc., 250 F.3d 10 (1st Cir. 2001) (applying New
Hampshire law); North Carolina: N.C.G.S.A. §99B-5(a); Oregon: McPike v.
Enciso’s Cocina Mejicana, Inc., 762 P.2d 315, 319 (Or. App. 1988); South
70
Carolina: Odom v. G.D. Searle & Co., 979 F.2d 1001, 1003 (4th Cir. 1992)
(applying South Carolina law); Tennessee: Payne v. Novartis Pharmaceuticals
Corp., 767 F.3d 526 (6th Cir. 2014) (applying Tennessee law); Virginia: Ford
Motor Co. v. Boomer, 736 S.E.2d 724, 733 (Va. 2013); Washington: Luttrell v.
Novartis Pharmaceuticals Corp., 894 F. Supp.2d 1324, 1345 n.16 (E.D. Wash.
2012); West Virginia: Muzichuck v. Forest Laboratories, Inc., 2015 WL 235226,
at *13 (N.D.W. Va.Jan. 16, 2015) (“the West Virginia Supreme Court of Appeals
has never adopted a heeding presumption”); Wisconsin: Wis. Stat. §895.047(1)(e);
Kurer v. Parke, Davis & Co., 679 N.W.2d 867, 876 (Wis. App. 2004). There is
certainly no nationwide trend towards use of heeding presumptions that overturn
the traditional burden of proof in warning cases.
Beyond precedent, reliance on some vague, pro-recovery “policy” in product
liability would be an invitation to absolute liability. If such “policy” could
eliminate causation, “so too would many other changes in a plaintiff’s burden of
establishing a prima facie case − including the elimination of any burden at all − be
consistent with that policy.” Riley, 856 P.2d at 200. Likewise, “[t]his Court has
drawn a policy line against” imposition of “absolute liability” in product liability
litigation. Liriano I, 92 N.Y.2d at 239, 677 N.Y.S.2d at 768, 700 N.E.2d at 307
(citing Robinson, 49 N.Y.2d at 481, 426 N.Y.S.2d at 721, 403 N.E.2d at 444).
71
More generally, Plaintiff’s invitation to decide this case on notions of
“public policy” should set the Court’s alarm bells ringing. “Public policy” is the
primary province of the Legislature. Plaintiff admits that a “dizzying array of
formulations,” Br. at 75, may arise in warning-related product liability cases. In
that, at least, Plaintiff is correct. To take but one example, some warnings address
“preventable risks” and are given to allow products to be used safely. Other
warnings concern “unavoidable risks,” and thereby offer only a choice between
using a product and accepting its inherent risks, or not using it at all and foregoing
its benefits. See generally Thomas v. Hoffmann-La-Roche, Inc., 949 F.2d 806,
813-14 (5th Cir. 1992) (rejecting heeding presumption when proposed for
unavoidable risks) (applying Mississippi law). The calculus that leads a consumer
to follow directions for assembling furniture is much different than what is
involved in deciding whether to prescribe a life-saving drug despite potentially
severe side effects. All prescription drugs have risks, and therefore carry warnings.
That such drugs are nonetheless prescribed does not mean that those warnings are
not “heeded,” as Plaintiff’s “presumption” would allow future plaintiffs to argue.
Plainly, the policy issues posed by Plaintiff’s demand for an across-the-board
heeding presumption are much more complex than merely “prevent[ing]
defendants from escaping liability.” Pl. Br. at 74-75.
72
Nor do many states that allow a heeding presumption apply it to benefit all
plaintiffs in all situations. Plaintiff’s purported presumption would thus embroil
New York courts in further issues about its proper scope. In New Jersey, for
example, the presumption only applies where, unlike here, a plaintiff cannot
testify. McDarby v. Merck & Co., 949 A.2d 223, 269 (N.J. Super. App. Div. 2008)
(presumption “unnecessary” where direct testimony exists). Texas—the first state
to adopt the presumption—for policy reasons no longer allows it in cases involving
prescription products governed by the learned intermediary rule. Ackermann v.
Wyeth Pharmaceuticals, 526 F.3d 203, 212-13 (5th Cir. 2008) (applying Texas
law). Pennsylvania prohibits use of a heeding presumption in cases involving the
voluntary use of consumer products, as opposed to where injury occurs in a
workplace setting. Moroney v. General Motors Corp., 850 A.2d 629, 634 & n.3
(Pa. Super. 2004); Viguers v. Philip Morris USA, Inc., 837 A.2d 534, 537-38 (Pa.
Super. 2003), aff’d mem., 881 A.2d 1262 (Pa. 2005).
Recognition of a heeding presumption would also raise the question of
whether such presumption would disappear in the face of rebuttal evidence, as is
the case with many New York presumptions. E.g., Board of Managers v. Town of
Amherst, 23 N.Y.3d 168, 175, 12 N.E.3d 1072, 1076, 989 N.Y.S.2d 642, 647
(2014) (presumption of tax assessment validity); People v. Rosario, 78 N.Y.2d
583, 588, 578 N.Y.S.2d 454, 456, 585 N.E.2d 766, 768 (1991) (presumption of
73
probable cause); but see Begley v. Prudential Ins. Co., 1 N.Y.2d 530, 533, 154
N.Y.S.2d 866, 868, 136 N.E.2d 839, 841 (1956) (presumption against suicide does
not disappear). “Such a presumption is not evidence but serves in place of
evidence until the opposing party comes forward with his proof, whereat it
disappears. It has no weight as evidence and is never to be considered in weighing
evidence.” People ex rel. Wallington Apartments v. Miller, 288 N.Y. 31, 33, 41
N.E.2d 445, 446 (1942). Most, but not all, states that have adopted a heeding
presumption have treated it as a “bursting bubble” presumption that “disappears”
the moment rebuttal evidence is offered.44 Recognition of a heeding presumption
could also render admissible derogatory “social character” information about a
plaintiff’s general disregard of product warnings that would otherwise be
inadmissible. Crowston v. Goodyear Tire & Rubber Co., 521 N.W.2d 401, 411
44 See Forbes v. Midwest Air Charter, Inc., 711 N.E.2d 997, 999 (Ohio 1999)
(rebutted presumption is a “bursting” “bubble”); Menard, 373 A.2d at 506-07
(rebutted presumption “disappears and goes for naught”); Golonka v. General
Motors Corp., 65 P.3d 956, 971-71 (Ariz. App. 2003) (rebutted presumption
“destroyed”); Coward, 729 A.2d at 621 (rebutted presumption “drops from the
case”); Calderon v. Machinenfabriek Bollegraaf Appingedam BV, 667 A.2d 1111,
1116 (N.J. Super. App. Div. 1995) (rebutted presumption “disappears”); Craven v.
Niagara Machine & Tool Works, Inc., 417 N.E.2d 1165, 1171 (Ind. App. 1981)
(rebutted presumption “drops from the case”); Travelers Indemnity Co. v.
HansLing / Anlagenbau Und Verfahrenstechnik GMBH & Co. KG, 189 F. Appx.
782, 787 (10th Cir. 2006) (rebutted presumption “disappears”) (applying
Oklahoma law); Miller v. Pfizer Inc., 196 F. Supp. 2d 1095, 1127, (D. Kan. 2002)
(rebutted presumption “disappears”), aff’d, 356 F.3d 1326 (10th Cir. 2004); contra
Samuel v. Ford Motor Co., 112 F. Supp. 2d 460, 463 (D. Md. 2000) (rebutted
presumption “continues to exist”), aff’d, 95 F. Appx. 520 (4th Cir. 2004).
74
(N.D. 1994); see Graves v. Church & Dwight Co., 631 A.2d 1248, 1257 (N.J. App.
Div. 1993) (evidence of plaintiff’s smoking admissible as “analog[ous]”).
Thus, for many of the same reasons already discussed in connection with
Plaintiff’s attempt to extend the duty to warn of product risks to manufacturers of
other, non-defective products, the current effort to reverse the traditional tort
burden of proof through a heeding presumption should be redirected to the
Legislature. Public policy issues “are best and more appropriately explored and
resolved by the legislative branch of our government . . . particularly where . . .
there are competing interests at stake.” Hall, 76 N.Y.2d at 34, 556 N.Y.S.2d at 25,
555 N.E.2d at 277.
The Legislature can examine the universe of possible warning scenarios.
This Court cannot. If the Legislature concludes that there should be a presumption
of causation, it knows how to enact one.45 If the Legislature concludes that, for
any or all of the purported public policy reasons enunciated by Plaintiff, asbestos
injuries—or even product-related injuries in general—should be subjected to more
relaxed standards of proof on causation than what the common law offers, it can
45 The Legislature has done so in response to specific situations. See N.Y. Veh. &
Traf. Law §1146(b)(2), (c)(2) (enacting presumption of causation for certain motor
vehicle accidents); N.Y. Gen. Mun. Law §207-kk (enacting presumption of
causation for certain injuries suffered by firefighters).
75
make that change. This Court should allow the Legislature to do so, or not, and
should not take such a momentous step on its own.
CONCLUSION
For the foregoing reasons, this Court should reverse the decision of the
Appellate Division and remand with instructions to enter judgment in favor of
Appellant Crane Co.
Respectfully submitted,
Daniel K. Winters,
N.Y. Bar # 2679785
REED SMITH LLP
599 Lexington Avenue
22nd Floor
New York, NY 10022
(212) 521-5400
James M. Beck,
p.h.v. app. pending
REED SMITH LLP
Three Logan Square
1717 Arch Street, Suite 3100
Philadelphia, PA 19103
(215) 851-8168
Of Counsel:
Hugh F. Young, Jr.
Product Liability Advisory Council, Inc.,
1850 Centennial Park Drive,
Suite 510
Reston VA 20191
(703) 264-5300
David J. Bird,
p.h.v. app. pending
REED SMITH LLP
225 Fifth Ave.
Pittsburgh, PA 15222
412-288-3131
Counsel for Amicus Curiae Product Liability Advisory Council, Inc.
Date Completed: October 23, 2015
76
Attachment A
77
Corporate Members of the Product Liability Advisory Council, Inc.
As Of September, 2015
3M
Altec, Inc.
Altria Client Services Inc.
Ansell Healthcare Products LLC
Astec Industries
Bayer Corporation
BIC Corporation
Biro Manufacturing Company, Inc.
BMW of North America, LLC
The Boeing Company
Bombardier Recreational Products,
Inc.
Boston Scientific Corporation
Bridgestone Americas, Inc.
Bristol-Myers Squibb Company
Brown-Forman Corporation
C.R. Bard, Inc
Caterpillar Inc.
CC Industries, Inc.
Celgene Corporation
Chevron Corporation
Chrysler Group LLC
Cirrus Design Corporation
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.I. duPont de Nemours and
Company
Eisai Inc.
Emerson Electric Co.
Endo Pharmaceuticals, Inc.
Exxon Mobil Corporation
Ford Motor Company
Fresenius Kabi USA, Inc.
General Electric Company
General Motors LLC
Georgia-Pacific Corporation
78
GlaxoSmithKline
The Goodyear Tire & Rubber
Company
Great Dane Limited Partnership
Harley-Davidson Motor Company
The Home Depot
Honda North America, Inc.
Hyundai Motor America
Illinois Tool Works Inc.
Isuzu North America Corporation
Jaguar Land Rover North America,
LLC
Jarden Corporation
Johnson & Johnson
Kawasaki Motors Corp., U.S.A.
KBR, Inc.
Kia Motors America, Inc.
Kolcraft Enterprises, Inc.
Lincoln Electric Company
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
Mitsubishi Motors North America,
Inc.
Mueller Water Products
Novartis Pharmaceuticals Corporation
Novo Nordisk, Inc.
NuVasive, Inc.
Pella Corporation
Pfizer Inc.
Pirelli Tire, LLC
Polaris Industries, Inc.
Porsche Cars North America, Inc.
RJ Reynolds Tobacco Company
Robert Bosch LLC
SABMiller Plc
The Sherwin-Williams Company
St. Jude Medical, Inc.
Stanley Black & Decker, Inc.
Subaru of America, Inc.
Takeda Pharmaceuticals U.S.A., Inc.
79
TAMKO Building Products, Inc.
TASER International, Inc.
Techtronic Industries North America,
Inc.
Teleflex Incorporated
Teva Pharmaceuticals USA, Inc.
TK Holdings Inc.
Toyota Motor Sales, USA, Inc.
TRW Automotive
Vermeer Manufacturing Company
The Viking Corporation
Volkswagen Group of America, Inc.
Volvo Cars of North America, Inc.
Wal-Mart Stores, Inc.
Western Digitial Corporation
Whirlpool Corporation
Yamaha Motor Corporation, U.S.A.
Yokohama Tire Corporation
Zimmer, Inc.