Fasolas v. Bobcat of New York Appellate Division (April 1, 2017)

A typical argument made by the plaintiffs and their experts in a design defect/ product liability case is that “Safety should never be an option.” Over the years, however, New York courts have recognized that optional safety features are perfectly appropriate under the right circumstances. If a safety feature is disadvantageous under certain conditions of use and the product can be safely used without it under those conditions, the courts have sometimes ruled that the purchaser is in a better position than the manufacturer to decide whether the safety feature is appropriate for the purchaser’s specific uses − even where the end user/injured party is not necessarily the purchaser. In cases where the purchaser is the end user’s employer, it has been held that the purchaser, as opposed to the manufacturer, was in a better position to decide whether the safety feature was appropriate for the employee’s uses. The leading example is Scarangella v. Thomas Built Buses, Inc., 717 N.E.2d 679 (NY 1999).
Continue Reading Equipment Manufacturers: Beware of the Rental Yard Customer When Safety Features Are Optional

The recent WannaCry ransomware cyberattack provided another chilling reminder of the potential disruptive power behind the Internet of Things. Even before the WannaCry attack in May 2017, a distributed-denial-of-service (DDoS) attack on a domain name server provider, Dyn, Inc., took place in October 2016, pushing many popular internet services offline for hours. The Dyn attack, which utilized the malware Mari as the supporting agent, was a sea-change event carried out by hundreds of thousands of internet-connected devices, such as routers, security cameras and DVRs, that rely on default factory user names and passwords coupled with weak or nonexistent security protections. It illustrated that hackers can now target vulnerable low-hanging fruit and turn it into a super botnet to carry out the DDoS attack. One takeaway from the Dyn attack is that the exponential growth of devices coming online, some 5.5 million per day according to Gartner, creates an unparalleled ecosystem for malevolent actors to find and weaponize the Internet of Things (IoT).
Continue Reading The Internet of Things: A Trifecta of Cyber and Physical Threat Risks

514771873About 80 percent of all food products are regulated by the Food and Drug Administration (FDA). The U.S. Department of Agriculture (USDA) regulates meat, poultry and egg products. Both agencies have regulations governing food production, labeling and recalls.
Continue Reading Mislabeled Food Products Risk Allergic Reaction

Mini segway or hover board scooterSince our last blog post on lithium-ion batteries, there has been a report that a self-balancing scooter, known as a hoverboard, is the suspected cause for a March 10, 2017, fatal fire that occurred in Harrisburg, Pennsylvania. The fire resulted in the death of a three-year-old girl. Fire origin and cause experts are still investigating, but statements from persons who escaped the home indicate that a charging hoverboard “exploded” and caused the fire.
Continue Reading Lithium-Ion Batteries: Hoverboard Suspected in Fatal Fire

Just over a year ago, I authored a Product Liability Advocate blog entry and a Law360 article explaining appropriate methods for asserting objections under Federal Rule of Civil Procedure 34, as amended on December 1, 2015. Last week, Judge Andrew J. Peck, U.S.M.J. of the Southern District of New York, issued an order that in his court any discovery objections that fail to comply with Rule 34 of the Federal Rules of Civil Procedure, as amended on December 1, 2015, will be deemed waived:
Continue Reading Don’t Risk Waiving All Objections to Discovery Responses