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personally designed that product and had no basis for his opinion that such a design was possible). Other cases have also found that experts with no experience or personal knowledge in the design, manufacture, or use of the product to be unqualified to demonstrate a RAD. Kiersznowski v. Shankman, 67 A.D.3d 1366, 889 N.Y.S.2d 781 (4th Dept. 2009); D’Auguste v. Shanty Hollow Corp., 26 A.D.3d 403, 809 N.Y.S.2d 555 (2d Dept. 2006).


22 McAllister v. Raymond Corp., 36 A.D.3d 768, 827 N.Y.S.2d 705 (2d Dept. 2007).


23 Lamb v. Kysor Indus. Corp., 305 A.D.2d 1083, 759 N.Y.S.2d 266 (4th Dept. 2003).


24 Perez v. Radar Realty, 34 A.D.3d 305, 824 N.Y.S.2d 87 (1st Dept. 2006)(plaintiff’s expert failed to show that a water based sealer instead of the complained of lacquer based product would be similarly efficacious).


25 Maxwell v. Howmedica Osteonics Corp., 713 F.Supp.2d 84 (N.D.N.Y. 2010).


26 There are several cases involving cigarettes, which have proven to be an unusual risk/benefit situation. See Adamo v. Brown & Williamson Tobacco Corp., 11 N.Y.3d 545, 872 N.Y.S.2d 415 (2008)(the Court held that it was not necessary in every product liability case to show the safer product is as acceptable to consumers as the one sold, but such a showing was necessary here where satisfying the consumer is the only function of the product); Rose v. Brown & Williamson Tobacco Corp., 53 A.D.3d 80, 855 N.Y.S.2d 119 (1st Dept. 2008)(plaintiff failed to present evidence that light cigarettes would be accepted by smokers of regular cigarettes); Tomasino v. American Tobacco Co., 23 A.D.3d 546, 807 N.Y.S.2d 603 (2d Dept. 2005).


27 Giunta v. Delta Int’l Mach., 300 A.D.2d 350, 751 N.Y.S.2d 512 (2d Dept. 2002); Wengenroth v. Formula Equip. Leasing, Inc., 11 A.D.3d 677, 784 N.Y.S.2d 123 (2d Dept. 2004); Milazzo v. Premium Tech. Servs. Corp., 7 A.D.3d 586, 777 N.Y.S.2d 167 2d Dept. 2004).


28 Bolm v. Triumph Corp., 71 A.D.2d 429, 422 N.Y.S.2d 969 4th Dept. 1979)(the general rule is that evidence of subsequent repairs or other remedial measures is not admissible as proof of negligence or culpability, because the fact that repairs were subsequently made is irrelevant on the issue of defendant’s lack of care at the time of the accident. The rule is also supported by policy reasons intended to encourage post-accident repairs); Barry v. Manglass, 55 A.D.2d 1, 389 N.Y.S.2d 870 (2d Dept. 1976).


29 Oleg Cassini, Inc. v. Electrolux Home Prods., Inc., No. 11 Civ 1237 AJN/JCF, 2013 WL 466198 (S.D.N.Y. Feb. 7, 2013);(Cohalan v. Genie Indus., Inc., 276 F.R.D. 161 (S.D.N.Y. 2011); Adams v. Genie Indus. Inc., 53 A.D.3d 415, 861 N.Y.S.2d 42 (1st Dept. 2008).


30 Pinello v. Andreas Stihl AG & Co., No. 8:08–CV–00452 (LEK/RFT), 2011 WL 1302223 (N.D.N.Y. Mar. 31, 2011).


31 See Lamb v. Kysor Indus. Corp., 305 A.D.2d 1083, 759 N.Y.S.2d 266 (4th Dept. 2003)(defendant’s expert’s affidavit was sufficient to establish that the original saw guard met industry standards and that the larger plaintiff proposed guard would have defeated the functional utility of the saw).


32 Beemer v. Deere & Co., 17 A.D.3d 1097, 794 N.Y.S.2d 254 (4th Dept. 2005)(a plaintiff’s contention that the product was defectively designed because a safety feature was an option rather than standard must show that (1) the buyer was thoroughly knowledgeable regarding the product and its use and actually aware that the safety feature was available; (2) there exists normal circumstances of use in which the product is not unreasonably dangerous without the option; and (3) the buyer was in a position, given the range of uses of the product, to balance the benefits and risks of not having the safety device in the specifically contemplated circumstances of the buyer’s use of the product).


33 Cacciola v. Selco Balers, Inc., 127 F. Supp. 2d 175 (E.D.N.Y. 2001) (the record evidence reflected that the safety guard on the forklift had been purposefully designed to permit easy removal of the overhead guard and that the forklift had added versatility when operated without the guard. This left a triable issue of fact as to a design flaw when a product’s safety device is designed to be easily removed or bypassed for a specific purpose).


The Court of Appeals this year decided a major case involving a guard, which had been removed from a post hole digger. Hoover v. New Holland N. Am., Inc., 2014 WL 1280439 (2014). In that case, a girl assisting in the operation of the machine lost an arm when it was dragged into the machinery, which had been protected by a guard at the time of the sale. The guard had broken after long use and the owner did not replace it. The court held that it was not error for the trial court to refuse to grant summary judgment to defendants since plaintiff raised triable issues of fact whether the guard was made properly and that the removal of the guard was not a “substantial modification” under the law.


34 Felix v. Akzo Nobel Coatings, Inc., 262 A.D.2d 447, 692 N.Y.S.2d 413 (2d Dept. 1999).


35 Abar v. Freightliner Corp., 208 A.D.2d 999, 1001, 617 N.Y.S.2d 209 (3d Dept. 1994);(De Matteo v. Big V Supermarkets, 204 A.D.2d 932, 933, 611 N.Y.S.2d 970, 971 (3d Dept. 1994); See N.Y. PJI 2:120.


36 Zaremba v. General Motors Corp., 360 F.3d 355 (2d Cir. 2004).


37 Hollman v. TASER Intl., Inc., No. 06-cv-3588 JFB/ARL, 2013 WL 864538 (E.D.N.Y. March 8, 2013); Saladino v. Am. Airlines, Inc., 500 Fed.Appx.69 (2d Cir. 2012); Liriano v. Hobart Corp., 92 N.Y.2d 232, 700 N.E.2d 303, 677 N.Y.S.2d 764 (1998).


38 Adams v. Genie Indus. Inc., 53 A.D.3d 415, 861 N.Y.S.2d 42 (1st Dept. 2008); Vincenty v. Cincinnati Inc., 25 A.D.3d 463, 807 N.Y.S.2d 92 (1st Dept. 2006).


39 Restatement (Third) of Torts Prod. Liab. §2 (1998). 40 Martin v. Hacker, 83 N.Y.2d 1, 607 N.Y.S.2d 598 (1993).


41 Baker v. St. Agnes Hosp., 70 A.D.2d 400, 421 N.Y.S.2d 81 (2d Dept. 1979).


42 DiBartolo v. Abbott Laboratories, 914 F.Supp.2d 601 (S.D.N.Y. 2012)(while the label warned of the risks of cancer, the manufacturer’s label was not as complete as a similar product on the market).


43 Smallwood v. Clairol, Inc., No. 03-cv-8394 SWK, 2005 WL 425491 (S.D.N.Y. Feb. 18, 2005).


44 Cuntan v. Hitachi Koki USA, Ltd., No. 06–CV–3898 RRM/CLP, 2009 WL 3334364 (E.D.N.Y. Oct. 15, 2009).


45 Pierre-Louis v. DeLonghi Am. Inc., 66 A.D.3d 859, 887 N.Y.S.2d 628 (2d Dept. 2009); Caruso v. John St. Fitness Club, LLC, 34 A.D.3d 296, 824 N.Y.S.2d 255 (1st Dept. 2006); Wesp v. Zeiss, Inc., 783 11 A.D.3d 965, N.Y.S.2d 439 (4th Dept. 2004).


46 Estrada v. Berkel, Inc., 14 A.D.3d 529, 789 N.Y.S.2d 172 (2d Dept. 2005); Perez v. Radar Realty, 34 A.D.3d 305, 824 N.Y.S.2d 87 (1st Dept. 2006).


47 Mulhall v. Hannafin, 45 A.D.3d 55, 841 N.Y.S.2d 282 (1st Dept. 2007).


48 Lynch v. Trek Bicycle Corp., No. 01 Civ. 3651 (DAB/JCG), 2011 WL 1327032 (S.D.N.Y. Mar. 30, 2011); Pierre-Louis v. DeLonghi Am. Inc., 66 A.D.3d 859, 887 N.Y.S.2d 628 (2d Dept. 2009).


49 Alexander v. Dunlop Tire Co., 81 A.D.3d. 1134, 917 N.Y.S.2d 376 (3d Dept. 2011); (Speller v. Sears, Roebuck & Co., 100 N.Y.2d 38, 760 N.Y.S.2d 79 (2003); Ramos v. Howard Indus., Inc., 10 N.Y.2d 218, 855 N.Y.S.2d 412 (2008).


50 The authors’ firm has made available online an aggregate collection of all of the case squibs from the outlines that they have produced annually for NYSTLI’s DECISIONS from 2002 to 2014, and arranged them by topic. The outline includes both procedural and substantive law as it relates to a plethora of product liability topics. The outline amasses 225 pages of product liability case law spanning more than a decade.


42


Bill of Particulars


Rheingold


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