Photo of Richard H. Rubenstein

Richard H. Rubenstein principally practices in the area of product liability defense, with a focus on gray market products originating from Japan. He also has experience in the prosecution of trademark infringement actions.

In products liability litigation, the question of whether a product was defectively designed because the manufacturer decided to make certain safety equipment “optional” instead of “standard” is an issue that arises often in cases involving heavy equipment and machinery or commercial vehicles.

Continue Reading The NY Court of Appeals Addresses “Optional Safety Equipment” in Fasolas v. Bobcat of N.Y., Inc.

Previously on this blog, Wilson Elser attorneys have written several posts about 3D printing technology and the law. We have predicted that this new technology has the potential to change the landscape of product liability law. This is happening, and especially so with respect to implantable medical devices, which are revolutionizing the health care industry with their unlimited potential for customization.

While there are still no published opinions for product liability cases involving 3D printed medical implants (or any 3D printed medical devices for that matter), we recently had the opportunity to defend a manufacturer client on product liability and negligence causes of action asserted against its 3D printed, custom-made orthopedic prosthesis. We obtained summary judgment for the client.

Continue Reading 3D Printed Medical Implants: Should Laws and Regulations Be Revolutionized to Address This Revolutionary Customized Technology?

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

Alabama Supreme Court Rejects “Good Samaritan” Liability in Gray Market Case

lawnmowerLast month, I wrote about the “Good Samaritan” rule, codified in Restatement (Second) of Torts, section 324A, “Liability to Third Persons for Performance of Undertaking.” In that post, I discussed how plaintiffs have tried to impose liability on manufacturers and distributors of products based on a company’s post-sale efforts to recall, retrofit or warn about a hazard. In special situations, plaintiffs have even tried to invoke section 324A against parties who were not involved in the product’s chain of distribution. Recently in one such case, the Alabama Supreme Court, applying section 324A, rejected the plaintiff’s argument that our client, Yanmar America Corporation (YAC), was negligent in its post-sale efforts to warn the public about the safety hazards of gray market Yanmar® brand tractors. Yanmar America Corporation v. Randy Nichols, 1130214 (Ala. 2014) Supreme Court of Alabama, Sep.. 30, 2014.

Continue Reading A “Good” Deed Goes Unpunished

responsive-design469792741TSEvery first-year law student can recite the “Good Samaritan” rule: The ordinary bystander has no legal duty to rescue a drowning person, but if you voluntarily undertake the duty to rescue her, you must not be negligent in your efforts.

This rule also has applications in the products liability arena where a defendant implements post-sale corrective measures. In those situations – where the defendant implements a recall or a retrofit of its product and/or issues a post-sale warning – where the defendant was not under a legal duty to take any of those actions in the first place, those corrective measures are not immune from attack . In such cases where a defendant has performed some corrective measure in the interests of the safety of its customers, regardless of those good intentions, injured plaintiffs will often claim that the defendant “voluntarily undertook” a duty toward the plaintiffs. They will further allege that the defendant did not do enough to fulfill that assumed duty, and that those negligent acts caused or contributed to the plaintiffs’ injuries.

Continue Reading Is There Anything “Good” about the “Good Samaritan” Rule?