Preface

• Jurisdiction: New York

PREFACE

The New York State Bar Association has long had a profound interest in products liability law. Recognizing its importance to litigators across the state, NYSBA has sponsored numerous seminars addressing this issue. In recent years, the law of products liability has become even more sophisticated. Those who labor in this field are aware of the diverse theories a plaintiff can assert and the ever-increasing number of defenses that can be developed. All who specialize in this area must know the law and procedure in order to be successful. This book has been developed to assist members of the bar to practice in this area in a knowledgeable and responsible way

One of our goals for this book is to convey the broad spectrum of practice and procedure in the products liability field. Thus, the overlap among the various theories of products liability is reflected in discussions of similar topics in the context of different chapters. Likewise, insofar as the strategies employed in instituting or defending a products liability case vary among practitioners, a few chapters cover similar topics, presented from differing viewpoints. Offered such options, the practitioner ideally can better choose the tactics that will work best given his or her unique circumstances

The authors have tried to ensure that their chapters are as current as possible. However, the ever-changing nature of the law undoubtedly means that many portions of the book will, over time, become outdated. The New York State Bar Association and its Products Liability Committee expect to update the book periodically and welcome comments and suggestions from readers

We are proud to have participated in the development of this book. It has been a privilege to work with the authors, who are all leading practitioners in the area of products liability law, and with the publications staff of NYSBA’s Continuing Legal Education Department. We are especially indebted to Daniel McMahon, Esq., Terri Porter, Joan Fucillo and Christina Couto for their efforts in transforming the book from a raw manuscript to a finished product

About the Editors Neil A. Goldberg, Esq.

Neil A. Goldberg is a Partner at Goldberg Segalla, LLP. He has defended products liability, pharmaceutical, medical device, trucking, toxic tort, and other complex catastrophic cases across the United States. He is past president of the Defense Research Institute (DRI), the largest organization of civil defense attorneys in the United States, is the past president and board chairman of the Lawyers for Civil Justice, and is the past chair of DRI’s Products Liability Committee and past chair of the New York State Bar Association’s Products Liability Committee. He is a member of the Board of Directors of the USLAW Network and is on the Advisory Board of the Bureau of National Affairs’ (BNA) Product Safety & Liability Reporter.

Mr. Goldberg is the editor of and contributing author of seven books on the defense of complex personal injury cases. He is the co-editor-in-chief of the two-volume Preparing For and Trying the Civil Lawsuit , second edition, published by the New York State Bar Association, 2004. He was also editor-in-chief and contributing author to the first edition of Products Liability in New York, Strategy and Practice (1997) and is the editor-in-chief of DRI’s Daubert Compendium, and a frequent lecturer on the defense of product liability and personal injury actions. He has lectured for Lloyds of London, DRI, Practicing Law Institute, the American Bar Association, New York State Bar Association, Southern Methodist University and other prestigious organizations throughout the United States and Europe. He possesses an AV rating from Martindale-Hubbell and has been included in the International Who’s Who of Product Liability Defence Lawyers; Super Lawyers, Corporate Counsel Edition; New York Super Lawyers ; named one of the “Top 50 New York Super Lawyers ;” and selected for inclusion in Business First ’s “Who’s Who in Law.” He is the recipient of the Defense Research Institute’s Distinguished Service Award; the New York State Bar Association’s Committee Chair of the Year Award and Distinguished Service Award; and is included in Who’s Who in America, Who’s Who in American Law, and Who’s Who Legal. Mr. Goldberg is a member of the American Arbitration Association, International Association of Defense Counsel, Federation of Defense and Corporate Counsel, American Bar Association, Trial Lawyers of America, and the Erie County Bar Association.

John P. Freedenberg, Esq.

John Freedenberg is a Partner in the law firm of Goldberg Segalla LLP. He concentrates his practice in the areas of products liability, catastrophic personal injury, and intellectual property litigation. He has handled more than 150 trials, 100 of them to verdict, and has had many summary judgments granted, making trial unnecessary.

Mr. Freedenberg serves as national coordinating counsel for two major manufacturers, and he has handled the defense of numerous products liability actions around the United States. These have included catastrophic personal injury cases and major fire damage cases, involving appliances, household products, controls, power generating and other heavy equipment, high-end products, lift trucks, electrical systems, and aircraft engines. As a Certified Fire and Explosion Investigator (CFEI), Mr. Freedenberg provides clients with a strong competitive advantage in litigation involving damage and injury from fires. He is actively involved in the investigation phase of each fire case, and in the courtroom he brings the weight of fire investigation credentials that often match or exceed those of opposing expert witnesses. He has participated in dozens of fire scene inspections and more than 100 laboratory inspections of fire scene artifacts, and he has conducted hundreds of depositions and dozens of trials in fire-related cases. Administered by the National Association of Fire Investigators through its National Certification Board, CFEI is the largest fire investigator certification program in the world. Mr. Freedenberg has also had the unique opportunity to depose plaintiffs’ experts in a wide range of specialties, and he has developed proven techniques for disqualifying “junk science” purveyors under applicable rules of evidence. He utilizes cutting-edge technology and unique strategies in order to, for example, enter into high/low agreements and achieve the best possible outcome for clients.

About the Authors Richard E. Alexander, Esq.

Richard Alexander is a Partner in the firm of Harter, Secrest & Emery, LLP, where he concentrates his practice in products liability. He graduated, cum laude, from the State University of New York at Buffalo School of Law, where he served as Publications Editor of the law review. From 1983–1985, Mr. Alexander was a law clerk to the Appellate Division, Fourth Department. He is past chairman of the Seventh Judicial District Grievance Committee, a member of the New York State and Monroe County Bar Associations and the Defense Research Institute. He is also a member of the Governor’s Judicial Screening Committee and was named a “Best Lawyer” in 2012. Mr. Alexander is the co-author of Use of Experts in Products Liability Litigation (New York State Bar Association) and Use of Outside Counsel and Product Safety Investigations (Defense Research Institute). He has lectured at numerous state and local bar continuing legal education programs.

Kathryn S. Bevilacqua, Esq.

Kathryn S. Bevilacqua is an Associate in the New York office of Kasowitz Benson Torres & Friedman LLP. Her practice focuses on complex civil litigation in state and federal courts, and she has represented many clients involved in commercial disputes arising out of the housing market crisis. She is a 2000 graduate, cum laude, of the University of Notre Dame, and Rutgers University School of Law, 2004.

Sheila L. Birnbaum, Esq.

Sheila L. Birnbaum is co-head of Skadden Arps’ Complex Mass Tort and Insurance Group nationwide. Prior to becoming a Skadden Arps Partner, she served as counsel to the firm while a Professor of Law and Associate Dean at New York University School of Law. She has been national counsel or lead defense counsel for numerous Fortune 500 companies in complicated tort cases and successfully argued two cases in the U.S. Supreme Court. Ms. Birnbaum was chosen as the leading products liability lawyer in the world by The International Who’s Who of Product Liability, one of the 10 most admired product liability attorneys in 2010 by Law360 and one of the 25 most influential women in New York by Crain’s New York Business. She also has been repeatedly selected for inclusion in The Best Lawyers in America for personal injury and mass tort litigation.

Loren Brown, Esq.

Loren Brown is a

...