I used to have a professor who would say something like, “The best way to win a lawsuit is on a technicality.” I think what he was getting at (as all law professors force you to guess what they are getting at, rather than actually coming out and saying what they are getting at) is that it is much easier to win and defend on appeal a clear procedural decision. The converse of that is, the worst way to lose a lawsuit is on a technicality. Even worse, it is absolutely no fun at all to explain to a client that you lost a lawsuit because of a technicality. Today, through Chow v. Reckitt & Colman, Inc., No. 81, 2011 WL 1752234 (N.Y. May 10, 2011) [PDF], we are reminded that procedure matters.
I think we can all agree that drain cleaner is dangerous and can cause physical harm if not used correctly. After all, anything that will eat through grease, hair, and other sludge would probably taint the delicate skin of a lawyer. In Chow, a restaurant employee used Red Devil Lye to clear a drain in a Manhattan restaurant and was injured during that task. There was no problem dispensing with the failure to warn claim, but the design defect claim was a different issue. In its motion for summary judgment, the defendant said something like, “C’mon, this is lye. We buy it specifically because it devours sludge. It’s dangerous because it has to be dangerous to do its job. ” But the Court of Appeals denied summary judgment. New York rules require the movant to produce evidence at the summary judgment stage in order to perform the risk-utility test. There was no such evidence in the record. On this point, the Court of Appeals noted as follows:
[D]efendants, in support of their summary judgment motion, produced no evidence of the absence of a safer but functionally equivalent alternative to lye. Defendants relied simply on a statement in an attorney’s affirmation that “the product at issue … cannot be designed differently without making it into an entirely different product” (emphasis omitted). The burden of making the necessary evidentiary showing might not have been hard to meet: an affidavit from someone knowledgeable in the industry—either a retained expert or an employee of one of the defendants—could have done it. But the burden was not met.
In other words, the defendant couldn’t just point to the absence of evidence for the plaintiff’s case. Indeed, the court was clear that the plaintiff could not win at trial on the evidence before the court, and at trial, a directed verdict would be proper. Nevertheless, New York procedure requires the submission of evidence in cases at the summary judgment stage in cases such as these. It was not enough to say that the product was dangerous by nature, but proof that there was no functionally equivalent safer alternative was necessary.
So, the lesson for today is, we must look at all of our cases and think about how we could lose them. There are entire blogs about frivolous lawsuits, and defense lawyers are notorious for thinking that at least half of all lawsuits are trumped up lottery tickets. Nevertheless, not looking at the motion critically had some real consequences in Chow. But the plaintiff’s lawyer did what he intended to do, which is survive summary judgment. Don’t take your cases for granted, defense lawyers. An overlooked procedural detail may bite you.