Toxic Tort Litigation Blog : Toxic Tort Lawyer & Attorney : Epstein Becker Green Law Firm : Product Liability, Contamination, Pollution

Michael Hoenig’s Product Liability column in The New York Law Journal, “Complexities Abound In Product Design Claims” (January 11, 2010), provides an excellent primer  on the law of product liability in New York state and a good discussion of the leading cases. (NYLJ.com requires a subscription to access. If you cannot download the article, Mr. Hoenig  will post the article within a couple of weeks on his law firm's web site).   Mr. Hoenig devotes the body of his article to a recent Appellate Division, First Department decision, Chow v. Reckitt & Colman Inc., 2010 NY Slip Op 00013 (App. Div., 1st Dept., Jan. 5, 2010).  There, a split First Department upheld the trial court's grant of summary judgment to the defendant manufacturer of of a drain cleaner called "Lewis Red Devil Lye", which blinded the plaintiff during an attempt to unclog a floor drain in the kitchen of the restaurant where he worked.  Applying the Court of Appeals standard in Voss v. Black & Decker Manufacturing Co, the court examined the 'risk-utility balancing' calculus, which often lies at the heart of a defective design product liability inquiry. In addition to Mr. Hoenig’s “refresher” survey of the law of product design liability, he directs his readers to the commentary issued by the Committee on Pattern Jury Instructions of the Association of Justices of the Supreme Court of the State of New York, particularly PJI 2:120. For further reading, a thoughtful discussion of PJI 2:120 appears in a 2008 article "New  Design-Defect Jury Instructions: Catching 'Denny' " by Stephen R. Blacklocks, a partner in Hunton & Wiliams'  New York office.  As Mr. Hoenig states in the conclusion of NYLJ article, “Mastery of the legal principles – our survey merely scratches the surface – is indispensable in perfecting one’s advocacy.”  When your client next assigns you a new case for  you to defend, take a few minutes to review Mr. Hoenig's primer to remind yourself just how many hurdles plaintiff's counsel needs to overcome to make out a prima facie case of design defect. 

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Over the years, I have become an enormous fan of Michael Hoenig, a partner at Herzfeld & Rubin, who writes the Products Liability column in The New York Law Journal. More than any other product liability commentator, Mr. Hoenig has served as a muse and inspiration. His columns are thoughtful and well-written. 

Mr. Hoenig’s column titled, “When Attorneys Ghostwrite Experts’ Reports,” published December 14, 2009, is a case in point. Shortly after the column appeared, I prepared a motion for filing in the EDNY to disqualify an adversary’s expert after he confessed in deposition to not preparing his own expert report. In his article,  Mr. Hoenig poses the following questions: How much attorney involvement in the drafting of experts’ reports is permissible? Must the entire work product be that of the expert? Or, at the other extreme, would it be acceptable for an attorney to draft the entire expert’s report with the expert “adopting” it? And, if at least some lawyer input is tolerable, then what is the boundary line between permission and perdition? Federal Rule of Civil Procedure 26(a)(2)(B) calls for disclosure of experts retained or specially employed to provide expert testimony and which “must be accompanied by a written report prepared and signed by the witness.” Mr. Hoenig discusses the federal district court case law discussing the circumstances under which an expert’s failure to prepare his own report might lead to his being barred from testifying at trial. In evaluating the individual facts presented to determine Rule 26 compliance, courts will most likely base their decisions not on who actually penned the report but, rather, whose opinions and analysis the report contains. One federal district court has held that “substantial participation” by the expert in the preparation of the report is required. Even if your motion to disqualify the expert altogether does not succeed, if you can demonstrate to the trial court that much of the expert’s report was ghostwritten by your adversary, the court may be more kindly disposed to your Daubert arguments. After all, if the expert cannot be bothered to write his own report, how painstaking can his methodology be?

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