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Judi Curry
D: (212) 313-5404  
jcurry@harrisbeach.com
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Judi Abbott Curry

  Member

(212) 313-5404  |
  jcurry@harrisbeach.com
Twitter
“It is important to learn about our client’s business and their products to craft an excellent defense and defend the product liability allegations. Clients appreciate my ability to take complex, legal, technical, medical and/or scientific concepts and make them understandable to the court, the adversary and/or the jury.”
  • California Supreme Court Decision Gives Relief to Defendants Seeking to Prevent their Prior Discovery Depositions from Being used at Trial
  • Amendments to Comprehensive Insurance Disclosure Act, CPLR 3101(f), Mitigate Burden to Civil Defendants
  • New York Medical and Life Sciences: Year in Review 2021
Profile
Representative Matters
Professional and Civic
Areas of Experience
Admissions
Education
Location

Judi concentrates in areas of mass tort and complex product liability litigation involving pharmaceuticals, medical devices, implants, infusion pumps, compounded medicines, biologics, over-the-counter drugs, solvents, acids, benzene and other mixed chemical exposures, mold, Legionella, pesticides, cosmetics, food, commercial and consumer household goods. She represents hospitals, physicians, medical practices, nurses, physical therapists, pharmacists and other health care providers in claims of negligence, medical malpractice, hospital-based toxic exposures and medical device malfunctions. Judi represents manufacturers, distributors, contract manufacturing organizations (CMO), retailers, chemical and raw ingredient suppliers and company or independent sales representatives in the life science industry. Judi’s environmental practice includes defense of claims of personal injury, property damage, remediation costs and stigmatization, due to spills and leaks of residential oil on land and tidal wetlands. Judi represents contractors, construction companies, building product manufacturers and property owners against claims of negligence, breach of contract and warranty, contribution and indemnity in construction defect and property damage matters alleging pecuniary losses and remediation costs.  She is also a member of the firm’s management committee.

Judi has a broad range of experience in representing the life science industry throughout a product’s life cycle, from clinical trials, pre market and launch risk assessment and batch manufacturing, through product liability matters involving labeling, packaging and distribution, including black box warnings, off-label use and state of the art label changes, post-recall events and commercial disputes where manufacturing, packaging or servicing results in financial loss, including expenses associated with a recall.

Judi served as national coordinating counsel for New England Compounding Pharmacy in the compounding pharmacy fungal contamination mass tort as well as national counsel for several medical device companies involved in mass tort litigation arising out of the use of a pain pump to deliver medication to the shoulder following arthroscopic surgery. She was national coordinating counsel to four chemical suppliers in semi-conductor manufacturing chemical exposure litigation and served as regional counsel for Dow Corning in the silicone breast implant litigation responsible for managing the personal injury claims of over 1,000 plaintiffs and coordinating counsel for injectable silicone litigation pending nationwide.  In her representation of leading hair dye and cosmetics manufacturers, Judi has successfully defended flagship products against claims of multiple chemical sensitivities (MCS), cancer, respiratory and musculoskeletal diseases.

In addition to her extensive experience defending over-the-counter and prescription drug, medical device, biologic and implant products, Judi provides counseling advice to pharmaceutical, device and cosmetic companies concerning pre-litigation risk assessments; recalls and market withdrawals of FDA regulated products; company submissions to FDA including package inserts, patient package inserts, and other labeling, warnings and NDA filings; product brochures; direct-to-consumer advertising; website content; press materials and media kits; sales and training materials and programs; pharmacovigilance and the development and use of risk minimization action plans and RiskMAP.

Drawing upon her experience in representing life sciences companies through the firm’s product liability practice, Judi represents contract manufacturing organizations and other life science companies in commercial disputes that may arise at each phase of the life-cycle of prescription, over-the-counter, personal care/cosmetic, biologic, medical device, nutritional supplement and food products.  Representative matters have included disputes involving contracts and agreements governing product development; quality, equipment and cGMP issues arising during the development and manufacture of clinical trial batches; manufacturing and labeling issues for either excipients or finished products; disputes in joint ventures; as well as litigation involving the supply, manufacture and distribution for FDA regulated products.  Judi also manages the complex commercial disputes that these companies often face in pre-litigation risk assessments and investigations, state and federal court actions, arbitrations, mediations and other ADR proceedings.

Judi defends claims of birth defects, autoimmune disease, fibromyalgia, orthopedic and neurologic injuries, learning disabilities, cancer, severe burns and disfigurement, and multiple chemical sensitivities using epidemiology and expert disciplines of dysmorphology, teratology, toxicology, industrial hygiene, oncology, rheumatology, neurology and others.  She utilizes cutting-edge litigation management technologies such as proprietary databases, document processing, imaging and predictive coding software to manage complex litigation in an electronic environment.

In the construction defects area, Judi represents owners, management companies, developers, contractors and material suppliers against claims of negligence, breach of contract and warranty, contribution and indemnity in multi-million dollar toxic mold and water intrusion personal injury and property damage matters alleging pecuniary losses, lost revenue and payments to tenants, repair and remediation and re-design and renovation costs. Specific matters have alleged physical damage, cracked ceilings and walls, water infiltration and mold, design flaws, structural defects, and defective building materials causing property damage.  She has also represented clients in matters where mold allegedly caused respiratory illnesses, autoimmune disease, allergic reactions and dermatological injuries, as well as other bodily injuries and illnesses.  Judi has handled construction defect matters involving diverse issues impacting liability, damages, apportionment and coverage involving architectural design, engineering, framing, waterproofing, masonry, excavation, HVAC, foundations, sheet-rocking, plumbing, electrical work and materials manufacture.  Additionally, Judi has experience defending construction accident matters on behalf of contractors and owners in which it is alleged that construction workers have been injured due to violations of Sections 200, 240 and 241 of the Labor Law of New York.

RECENT PUBLICATIONS + SPEAKING ENGAGEMENTS

Frequently lectures, chairs professional seminars and publishes articles on topics including pre-litigation risk assessment, federal preemption of pharmaceutical labeling claims, defense of 501(k) medical devices, Daubert issues, strategy in document-intensive mass tort litigation, and other issues where law and science intersect.

Authored or co-authored Harris Beach Legal Alerts, including:

  • "New York’s Appellate Division Affirms Summary Judgment Based on Lack of Specific Causation of Toxic Exposure to Gas" (April 2022).
  • "Amendments to Comprehensive Insurance Disclosure Act, CPLR 3101(f), Mitigate Burden to Civil Defendants" (March 2022).
  • "California Supreme Court Decision Gives Relief to Defendants Seeking to Prevent their Prior Discovery Depositions from Being used at Trial" (March 2022).
  • "New York State Comprehensive Insurance Disclosure Act and Amendments to CPLR 3101(f) Implicate Defendants’ Disclosure Obligations in Civil Litigation" (January 2022).
  • "New York Medical and Life Sciences 2021 Year in Review" (January 2022).
  • "Appellate Decision Permits COVID-19 "Take-Home" Suit to Proceed" (January 2022).
  • "PREP Act Preemption: 'There is no COVID-19 Exception to Federalism'" (December 2021).
  • "Update to Legal Alert: Summary Judgment Reversed In Toxic Tort Matter Involving Bladder Cancer and Exposure to O-Toluidine" (December 2021).
  • "In Lennon v. 56th & Park(NY) Owner LLC, the Second Department Expands Applicability of Collateral Estoppel in Workers’ Compensation Findings" (September 2021).
  • "Court Orders EPA to Take Final Action on Rules Regarding Dispersant Chemicals Used In Mitigating Ocean Oil Spills" (August 2021).
  • "HHS Further Amends Declaration Under the PREP Act to Address Influenza and COVID-19 Impact and Add Pharmacist Vaccinators" (August 2021).
  • “Toll or Suspension? New York Appellate Division Provides Clarity” (June 2021).
  • "SCOTUS Extends Specific Jurisdiction to Ford in Products Cases" (March 2021).
  • "Breast Implant Multidistrict Litigation Claims Pared Down by New Jersey Federal Court" (March 2021).
  • "HHS Further Amends Declaration Under the PREP Act to Expand COVID-19 Vaccinators" (February 2021).
  • "New York Medical and Life Sciences 2020 Year in Review" (January 2021).
  • "Sweeping Changes to Uniform Rules for the Supreme Court and County Court" (January 2021).
  • "New York’s First Department Limits the Ability for Defendants to Testify as to Custom and Practice in Medical Malpractice cases" (January 2021).
  • "Two New York Appellate Court Decisions Affirm Default Orders Dismissing Plaintiffs’ Complaint" (January 2021).
  • “New York High Court Recognizes "American Pipe" Cross-jurisdictional Class Action Tolling but Dismissal Restarts the Clock” (December 4, 2020).
  • “New York Second Department Limits the Ability for Defendants to Testify as to Custom and Practice in Medical Malpractice Cases” (November 24, 2020).
  • “Recent Cases from New York’s Second Department Clarify What is Necessary for a Pre-Note of Issue Dismissal” (November 24, 2020).
  • “FDA and FTC Take Action Regarding Pandemic-Related Products” (November 9, 2020).
  • “FDA Limits Respirator Manufacturers who can Apply for Authorization Under EUA” (October 30, 2020).
  • “New York Supreme Court Allows Plaintiff to Plead Statutory Fraud Claim with Medical Malpractice Negligence Cause of Action” (September 16, 2020).
  • “New Jersey Supreme Court Finds Products Liability Act Does Not Bar Consumer Fraud Act Claims Alleging Express Misrepresentations” (August 20, 2020).
  • “New York Federal Court Finds Italian Tomato Labels Not Misleading in Consumer Fraud Class Action” (August 13, 2020).
  • “The Case of the Exploding Can of PAM: Plaintiffs’ Product Liability Claims Don’t Stick” (June 16, 2020).
  • “New York Federal Court Dismisses Breast Implant Products Liability Claim on Preemption Grounds” (May 12, 2020).
  • “FDA’s Emergency Use Authorization Expands Class of Mask Manufacturers and Distributors Entitled to Immunity” (April 27, 2020).
  • “NIOSH-Approved Masks Defined as Covered Countermeasures for Liability Immunity Under Amended PREP Act Declaration” (April 16, 2020).
  • “Government Issues Immunity to Liability for COVID-19 Countermeasures” (Mar 26, 2020).
  • “New York Medical and Life Sciences: 2019 Year in Review” (Jan 31, 2020).
  • “FDA Proposes Strengthening Warning Labels on Breast Implants” (Oct. 24, 2019).
  • “FDA Requests Worldwide Recall of Certain Textured Breast Implants” (Aug. 7, 2019).
  • “Court Decision Highlights Key Role of Expert Witness in Food Manufacturer Suits” (June 21, 2019).
  • "FDA Determines Textured Breast Implants Do Not Require Safety Ban" (May 2019).
  • "FDA Committee Addresses Safety of Breast Implants" (March 2019).
  • "FDA Issues Warning for Robotically Assisted Mastectomies and Other Cancer Surgeries" (March 2019).
  • "Medical and Life Sciences Year in Review: Last Year’s Lessons Shape This Year’s Outlook" (February 2019).
  • "Significant New York Drug and Device 2017 Product Liability Decisions" (February 2018).
  • "NY High Court Rules on Wrongful Birth Statute of Limitations" (January 2018).
  • "Successor Liability Claim Dismissed Against Medical Device Manufacturer" (December 2017).
  • "Treating Physician Testimony Wins Plavix Product Liability Case Under NY Law" (September 2017).
  • "Drug Product Liability Action in NY Declined to Apply the "Heeding Presumption" (September 2017).
  • "New York State Court Orders Production of Discovery in Native Format with Metadata; Costs Born by Producing Party" (March 2017).
  • "FDA Medwatch: - Breast Implants: Update - Breast Implant-Associated Anaplastic Large Cell Lymphoma (BIA-ALCL)" (March 2017).
  • "Federal Court Judge Grants Summary Judgment in Hip Repair Device Case: Hip case breaks the right way" (March 2017).
  • "FDA Medwatch: Chlorhexidine Gluconate Antiseptics-Rare But Serious Allergic Reactions" (February 2017).
  • "New York Medical and Life Science 2016: Year in Review" (January 2017).
  • "FDA Issues New Guidance for Cybersecurity in Medical Devices" (January, 2017).
  • "New York Medical and Life Science 2015: Year in Review" (January 2016).
  • "To Be or Not To Be: Recent New York Case Law on Prenatal Torts" (December 3, 2015).
  • "New York Court of Appeals: Medical Device Fragment Left in Patient in Surgery Qualifies as Foreign Object re: CPLR §214-a" (June 25, 2015).
  • "Summary Judgment Granted in Medical Device Product Liability Action" (May 11, 2015).
  • "New York State Enacts Rule Requiring Redaction or Omission of Personally Identifiable Information/Confidential Personal Information in Filed Court Papers" (February 26, 2015).
  • "FDA Taking Hands-Off Approach to Oversight of Low-Risk Medical Devices" (February 2015).
  • "New York Medical and Life Sciences 2014: Year in Review" (February 2015).
  • "Pharmaceutical Update: FDA Guidance on Drug Compounding and Outsourcing Facilities" (September 2014).
  • "Nanotechnology Update: FDA Guidance on Cosmetics and Products" (July 2014).
  • "New York Court of Appeals Reinforces Frye Standard in Dismissing Plaintiff’s Mold Claims for Lack of Causation" (April 2014).
  • "Legal Impact of the Recent FDA Acetaminophen Dosage Guideline on Prescribers and Pharmacists" (April 2014).
  • "Adverse Effects of the FDA-Proposed Rule on Mensing Preemption" Harris Beach Advisory (March 2014).
  • "New York Court of Appeals Decision Refuses to Create A New Equitable Cause of Action for Medical Monitoring" (January 2014).
  • "FDA News: MedWatch Consumer Voluntary Reporting Forms Revised to be More Consumer-Friendly / Final Rule Issued for Unique Device Identification System" (September 2013).
  • "Federal Preemption: Supreme Court Finds Claims for Injuries from Generic Pharmaceuticals Barred by FDA Rules" (August 2011).
  • "Supreme Court of the United States Applies Express Preemption to Medical Device Common Law Tort Claim" (March 2008).
  • "Does Supreme Court’s Ruling in Favor of Big Tobacco Mean an End to Large-Dollar Jury Awards?" (March 2007).
  • "Parker v. Mobil: New York High Court Articulates Standard for Causation in Low Dose Benzene Exposure Toxic Tort Action" (December 2006).
  • "New York County Supreme Court Finds Scientific Evidence Related to Mold and Human Illness Does Not Meet the Frye General Acceptance Standard" (October 2006).
  • "FDA Issues New Drug Labeling Rules Supporting Preemption of Warning Claims" (March 2006).
  • "New York Appellate Court Bars Indemnity Claims by a Condominium Owner Where the Owner May Have Some Negligence in Not Remediating a Mold Condition" (February 2006).
  • "New York Appellate Court Prevents Mass Tort Plaintiffs from Invoking Toxic Tort Statute of Limitations Tolling Provision Where Expert Affidavit Lacks Specificity" (November 2005).
  • "McFat is Back: Recognizing the “Catch-All” Nature of N.Y. G.B.L. §349 and Respecting the Liberality of Notice Pleading Under the Federal Rules" (February 2005).

Authored and published numerous articles, including:

  • "New York Medical and Life Sciences: Year in Review 2021", as published in: New York Law Journal (March 9, 2022) and DRI’s In-House Defense Quarterly (Winter 2022).
  • "Medical and Life Sciences Industry Team Co-Leader Judi Abbott Curry Outlines Importance of Quality Assurance Departments" (November 2021).
  • "DRI For Life: Lessons from Disaster," DRI's For The Defense (September 2017).
  • "FDA Final Guidance for Content and Format of ‘Dear Doctor Letters’/Dear Health Care Provider (DHCP) Letters," DRI’s RX for the Defense (June 27, 2014).
  • "FDA Proposes Equal Rights to Brand and Generic Manufacturers to Change Product Labeling," American Bar Association, Section of Litigation, Products Liability, News & Developments (April 23, 2014).
  • "Risk Management; Pre Launch Product Liability Risk Assessment; The Best Defense is a Good Offense." Good Clinical Practices Medtech Workshop (March 2012).
  • "Medical Devices" chapter for the American Bar Association e-book publication FDA Regulation of Nanotechnology (February 2012).
  • "Weighing the Impact of Statistically Insignificant Information Against a Shareholder’s ‘Right to Know’ in Matrixx Initiatives, Inc., et. al. v. Siracusano, et. al.," DRI The Voice (November 2011).
  • "The Safe Cosmetics Act – Proposed 2010 Legislation" American Bar Association TTEL TIPS Practice News (Spring/Summer 2011).
  • "Purchasing Company Assets Without Taking On Liabilities" New York Law Journal (September 9, 2010).
  • "The Federal Preemption Debate in Pharmaceutical Labeling Products Liability Actions” 43 Tort Trial & Ins. Pract. L.J. 35 (2008).
  • "Deference to the FDA’s Preamble,” 26(3) LJN’s Product Liability Law & Strategy (2007).
  • "Navigating the FDA's Recent RiskMAP Guidance," 24(7) LJN’s Product Liability Law & Strategy (2006).
  • "Indoor Air Quality and Sick Building Syndrome—Are You Allergic to Your Building, or Your Boss?" DRI’s Toxic Torts and Environmental Law Committee Newsletter (2006).
  • "2004 Report on the Health Consequences of Smoking: Breathing Life into an Old Defense," DRI's For The Defense (October 2005).
  • "Case Management Orders in Mass Tort Litigation," Martindale Hubbell (September 2005).
  • "Mass Tort Litigation: Using Case Management Orders,” DRI’s For The Defense (August 1999).

Presentations include:

  • The Evolving World of Covid Vaccine Liability Immunity – “In-House Warrior" Podcast - Corporate Counsel Business Journal (February 2022).
  • Litigation Trends in Telemedicine, Medical Malpractice and Healthcare, presented to insurance executives (February 2021).
  • "Recent Developments in Litigation in the Life Science Industry- 2017 Developments and 2018 Outlook" presented to underwriters and insurance executives (May 15, 2018).
  • "Cybersecurity Litigation: What the Hack Do We Do" CLE/CE (2016).
  • "Obesity: The Growing Body of Law" CLE/CE (2014).
  • "Social Media - Risk & Strategy for Life Sciences Companies," Medmarc Webinar (2014).
  • "Off-Label Promotion of Drugs and Devices: Quandaries, Problems and Issues in the World of Social Media," Medmarc Annual Counsel Meeting (2013).
  • "FDA Warning Letters Issued to Clinical Trial Stakeholders in 2012," MedTech Association (2013).
  • "Clinical Trials as a Source of Product Liability Claims, Managing the Risk Clinically and Financially," MedTech Association (2013).
  • "Pre-Launch Product Liability Risk Assessment," MedTech Association (2012).
  • "Good Clinical Practices," MedTech Association (2012).
  • "Supreme Court Round-Up: Decisions of Interest," Federal Preemption CLE/CE (2011).
  • "Size Does Matter: The Impact of Nanotechnology on Human Health and the Environment," ABA TTEL Annual Meeting (2009).
  • "The Future of Nanotechnology for Drugs and Devices," Medmarc Annual Counsel Meeting (2008).
  • "Toxic Torts 101” Introduction to Liability Theories and Defenses in Toxic Tort Litigation," The Hartford Insurance Company (2007).
  • "Risky Business? Charting the Course Through FDA’s RiskMAP Guidance and Its Implications in Pharmaceutical Litigation," Mealeys Defense Strategies in Pharmaceutical Litigation Conference (2006).
  • "Defending Tort Claims Against Drug Products and Medical Devices," Zurich NA Insurance Company (2005).
  • Menza v. Slomin’s, No. 609206/16 (Sup. Ct. Nassau Cty, April 11, 2019) partial summary judgment awarded in toxic tort claim that alleged exposure to residential oil spill caused homeowner to develop lupus and/or the exposure exacerbated her lupus condition. Court dismissed the lupus claim, holding that evidence of a mere association between a toxin and an injury is not sufficient to establish causation, and further, even when general causation is satisfied, the Plaintiff must still establish sufficient exposure to have caused the claimed adverse health effect.
  • Fleming v. Laakso, No. 1:18-cv-01527-RA-BCM (S.D.N.Y. February 27, 2019) dismissal of claims against psychiatrist in federal court action which alleged defamation by performing a mental assessment and deeming Plaintiff unfit for duty at a hospital related clinic, medical malpractice and tortious interference with prospective business relations. Court held complaint failed to state a cause of action under FRCP 12(b)(6), did not plead the necessary elements of defamation, tortious interference with prospective business relations or medical malpractice, and dismissal was appropriate based upon the common interest qualified privilege.
  • Ford v. Riina, 2017 WL 1709471 (Sup. Ct. N.Y. Cty, May 2, 2017) summary judgment granted and affirmed on appeal to the Appellate Division First Department 160 A.D.3d 588, 75 N.Y.S.3d 13 (1st Dept. April 26, 2018) on behalf of endovascular device manufacturer Concentric Medical, Inc. (now Stryker Neurovascular) in medical device product liability case brought on behalf of a severely brain-damaged plaintiff, dismissing all claims under CPLR R. 3212, including design defect, failure to warn and breach of warranty; holding that device manufacturer established prima facie evidence that the product labeling conveyed adequate warnings; prima facie entitlement to summary dismissal of plaintiff’s design defect claim by establishing that the endovascular retrieval device was state of the art; and holding expert witness affidavits in opposition were speculative and conclusory, unsupported by any scientific basis, statistics, analysis or empirical data, as experts failed to disclose the experimental data and test conditions used to generate their opinions.
  • Tomaselli v. Zimmer, 2017 WL 1011492 (S.D.N.Y. Mar. 15, 2017) adopting Magistrate Report and Recommendation (Jan. 20, 2017) summary judgment granted and affirmed on appeal to the United States Court of Appeals for the Second Circuit 2018 WL 1612230 (2d Cir. Apr. 4, 2018) on behalf of GTR fixation medical device manufacturer Pioneer Surgical and distributor Zimmer under FRCP 56, holding that decision of a physician, as a learned intermediary, not to inform the patient of the risk of medical device fracture does not support the physician’s lack of awareness of the risk; the surgeon’s independent awareness of the risk severed the required causal connection between an alleged failure to warn and plaintiff’s injury; the instructions for use referred specifically to cable breakage and as such were adequate as a matter of law; failure to identify product defect and offer expert evidence of alternative feasible design or deviation from defendants’ design and engineering specifications were fatal to design and manufacturing defect claims, required summary judgment on negligence and strict product liability claims and breach of implied and express warranty.
  • Hudson v. Sunnyside Corp., 155 A.D.3d 1532 (4th Dep’t 2017) dismissal affirmed on appeal in toxic tort product liability action involving exposure to muriatic acid used to clean an indoor swimming pool. Plaintiff asserted several causes of action including negligence in failure to warn, specifically, that defendant’s product failed to provide an affirmative statement of the principal hazard associated with the use of the product, and adequate precautionary measures regarding actions to be followed or avoided when using the product, making the product a “misbranded hazardous substance” in violation of the Federal Hazardous Substances Act (“FHSA”), 15 U.S.C. § 1261(p). In a unanimous decision, the Appellate Division, Fourth Department affirmed finding that the label was in compliance with the FHSA in providing sufficient statements of the principal hazard and of the precautionary measures to be followed or avoided.
  • Greenwood v. Tehrani, 2017 WL 4083099, 2017 NY Slip Op 31963(U) (Sup. Ct. N.Y. Cty, September 15, 2017) dismissal of plaintiff’s medical malpractice, lack of informed consent, and negligence claims against a medical device manufacturer. Court rejected claims that sales representative’s presence invoked duty to warn patient, as the manufacturer’s duty is to warn the medical community, not the patient, of the product’s risks, as it is the physician whose duty it is to balance the risks against the benefits of various medical products and treatments and to prescribe them and supervise their effects. Medical device manufacturer did not have duty to ensure the device was used by the physician in accordance with FDA guidelines and plaintiff could not assert medical malpractice and lack of informed consent claims against medical device manufacturer, since a manufacturer neither practices medicine nor has a duty to inform a patient of the risks and benefits of a particular treatment.
  • Vidal v. Dentsply, Index 18110/2010 (Supreme Court of the State of New York, Washington County, April 23, 2015): summary judgment on all causes of action in a medical device product liability action involving dental equipment alleged to give patient an electric shock. In the face of learned intermediary testimony and plaintiff’s reliance upon a mere temporal relationships between exposure to the product and the subsequent development of later injury, the Supreme Court found plaintiff failed to make a showing of general causation by submission of expert reports or past events establishing that the device had propensity to cause electric shock.
  • Coratti v. Wella Corporation, 56 A.D.3d 343, 867 N.Y.S.2d 421 (New York Appellate Division, First Department 2008): summary judgment on behalf of L’Oreal, affirmed on appeal, establishing that the scientific community has not generally accepted the theory that MCS can be caused by daily, occupational exposure to the chemicals contained in hair dyes.
  • Hanlon v. Gliatech, (United States District Court, Eastern District of New York 2008): FRCP 12(b)(6) dismissal of negligence, strict liability and fraud claims on behalf of manufacturer of 510K medical device, a surgical adhesive used in orthopedics.
  • Burger v. Union Carbide Corp., 304 A.D.2d 700 (New York Appellate Division, Second Department 2003): dismissal premised upon New York’s “toxic tort” statute of limitations.
  • Krasnopolsky v. Warner-Lambert, Co., 799 F. Supp. 1342 (United States District Court, Eastern District of New York 1992): pharmaceutical manufacturer discharged its duty to warn through Learned Intermediary;
  • Warner v. American Fluoride, 204 A.D.2d 1, 616 N.Y.S.2d 534 (New York Appellate Division, Second Department 1994): FIFRA preemption of pesticide labeling claims.

Professional and Civic

  • Claims and Litigation Management Alliance, member
  • Defense Research Institute, member
  • New York State Bar Association, member, past Officer and Secretary of the Food, Drug, and Cosmetic Section (2013-2015)

Recognition

  • Long Island Business News, Who’s Who in Women in Professional Services, August 21, 2015; August 19, 2016; and August 18, 2017 editions
  • Super Lawyers, Class Action/Mass Torts, since 2008
  • Berkley Life Sciences, Elite Defense Counsel Network, member

 

Legal Practices

E-Discovery (e-info℠)
Mass Torts and Industry-Wide Litigation
Product Liability and Comprehensive General Liability

Industry Teams

Construction and Surety
Medical and Life Sciences
Nanotechnology

New York

U.S. Court of Appeals, First Circuit

U.S. Court of Appeals, Second Circuit

U.S. District Court, New York - Eastern District

U.S. District Court, New York - Northern District

U.S. District Court, New York - Southern District

U.S. District Court, New York - Western District

Fordham University Law School

JD
1986

State University of New York at Stony Brook

BA
1983
Long Island, NY Office
New York, NY Office
All Insights, All Publications, Legal Alert |
 April 26, 2022
New York’s Appellate Division Affirms Summary Judgment Based on Lack of Specific Causation of Toxic Exposure to Gas
New York’s Appellate Division, First Department affirmed a decision of the Bronx County Supreme Court, which precluded plaintiff’s expert ev...read more
All Insights, All Publications, Legal Alert |
 March 15, 2022
California Supreme Court Decision Gives Relief to Defendants Seeking to Prevent their Prior Discovery Depositions from Being used at Trial
When defending litigation in one state, mass tort defendants must consider other jurisdictions’ rules.  For example, while some states gener...read more
All Publications, Legal Alert |
 March 1, 2022
Amendments to Comprehensive Insurance Disclosure Act, CPLR 3101(f), Mitigate Burden to Civil Defendants
At the beginning of 2022, New York state enacted the Comprehensive Insurance Disclosure Act (“CIDA”), imposing significant new burdens on de...read more
Advisory, All Insights, All Publications |
 January 27, 2022
New York Medical and Life Sciences: Year in Review 2021
From pharmaceuticals to dietary supplements, preemption to public health, New York state and federal courts issued decisions in 2021, which ...read more
All Publications, Legal Alert |
 January 18, 2022
Appellate Decision Permits COVID-19 “Take-Home” Suit to Proceed
A California appeals court permitted a Los Angeles County wrongful death lawsuit for COVID-19 “take-home” liability to proceed.  The plainti...read more
All Publications, Legal Alert |
 January 7, 2022
New York State Comprehensive Insurance Act and Amendments to CPLR 3101(f) Implicate Defendants’ Disclosure Obligations in Civil Litigation
The New York State Comprehensive Insurance Disclosure Act is now in effect....read more
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(866) 999-0659

Judi Abbott Curry

jcurry@harrisbeach.com
D: (212) 313-5404
Long Island, NY Office
New York, NY Office
Judi Curry
https://www.harrisbeach.com/people/curry-judi-abbott/

■ Areas of Expertise

E-Discovery (e-info℠) Legal Practice
Mass Torts and Industry-Wide Litigation Legal Practice
Product Liability and Comprehensive General Liability Legal Practice
Construction and Surety Industry Team
Medical and Life Sciences Industry Team
Nanotechnology Industry Team

■ Profile

Judi concentrates in areas of mass tort and complex product liability litigation involving pharmaceuticals, medical devices, implants, infusion pumps, compounded medicines, biologics, over-the-counter drugs, solvents, acids, benzene and other mixed chemical exposures, mold, Legionella, pesticides, cosmetics, food, commercial and consumer household goods. She represents hospitals, physicians, medical practices, nurses, physical therapists, pharmacists and other health care providers in claims of negligence, medical malpractice, hospital-based toxic exposures and medical device malfunctions. Judi represents manufacturers, distributors, contract manufacturing organizations (CMO), retailers, chemical and raw ingredient suppliers and company or independent sales representatives in the life science industry. Judi’s environmental practice includes defense of claims of personal injury, property damage, remediation costs and stigmatization, due to spills and leaks of residential oil on land and tidal wetlands. Judi represents contractors, construction companies, building product manufacturers and property owners against claims of negligence, breach of contract and warranty, contribution and indemnity in construction defect and property damage matters alleging pecuniary losses and remediation costs.  She is also a member of the firm’s management committee.

Judi has a broad range of experience in representing the life science industry throughout a product’s life cycle, from clinical trials, pre market and launch risk assessment and batch manufacturing, through product liability matters involving labeling, packaging and distribution, including black box warnings, off-label use and state of the art label changes, post-recall events and commercial disputes where manufacturing, packaging or servicing results in financial loss, including expenses associated with a recall.

Judi served as national coordinating counsel for New England Compounding Pharmacy in the compounding pharmacy fungal contamination mass tort as well as national counsel for several medical device companies involved in mass tort litigation arising out of the use of a pain pump to deliver medication to the shoulder following arthroscopic surgery. She was national coordinating counsel to four chemical suppliers in semi-conductor manufacturing chemical exposure litigation and served as regional counsel for Dow Corning in the silicone breast implant litigation responsible for managing the personal injury claims of over 1,000 plaintiffs and coordinating counsel for injectable silicone litigation pending nationwide.  In her representation of leading hair dye and cosmetics manufacturers, Judi has successfully defended flagship products against claims of multiple chemical sensitivities (MCS), cancer, respiratory and musculoskeletal diseases.

In addition to her extensive experience defending over-the-counter and prescription drug, medical device, biologic and implant products, Judi provides counseling advice to pharmaceutical, device and cosmetic companies concerning pre-litigation risk assessments; recalls and market withdrawals of FDA regulated products; company submissions to FDA including package inserts, patient package inserts, and other labeling, warnings and NDA filings; product brochures; direct-to-consumer advertising; website content; press materials and media kits; sales and training materials and programs; pharmacovigilance and the development and use of risk minimization action plans and RiskMAP.

Drawing upon her experience in representing life sciences companies through the firm’s product liability practice, Judi represents contract manufacturing organizations and other life science companies in commercial disputes that may arise at each phase of the life-cycle of prescription, over-the-counter, personal care/cosmetic, biologic, medical device, nutritional supplement and food products.  Representative matters have included disputes involving contracts and agreements governing product development; quality, equipment and cGMP issues arising during the development and manufacture of clinical trial batches; manufacturing and labeling issues for either excipients or finished products; disputes in joint ventures; as well as litigation involving the supply, manufacture and distribution for FDA regulated products.  Judi also manages the complex commercial disputes that these companies often face in pre-litigation risk assessments and investigations, state and federal court actions, arbitrations, mediations and other ADR proceedings.

Judi defends claims of birth defects, autoimmune disease, fibromyalgia, orthopedic and neurologic injuries, learning disabilities, cancer, severe burns and disfigurement, and multiple chemical sensitivities using epidemiology and expert disciplines of dysmorphology, teratology, toxicology, industrial hygiene, oncology, rheumatology, neurology and others.  She utilizes cutting-edge litigation management technologies such as proprietary databases, document processing, imaging and predictive coding software to manage complex litigation in an electronic environment.

In the construction defects area, Judi represents owners, management companies, developers, contractors and material suppliers against claims of negligence, breach of contract and warranty, contribution and indemnity in multi-million dollar toxic mold and water intrusion personal injury and property damage matters alleging pecuniary losses, lost revenue and payments to tenants, repair and remediation and re-design and renovation costs. Specific matters have alleged physical damage, cracked ceilings and walls, water infiltration and mold, design flaws, structural defects, and defective building materials causing property damage.  She has also represented clients in matters where mold allegedly caused respiratory illnesses, autoimmune disease, allergic reactions and dermatological injuries, as well as other bodily injuries and illnesses.  Judi has handled construction defect matters involving diverse issues impacting liability, damages, apportionment and coverage involving architectural design, engineering, framing, waterproofing, masonry, excavation, HVAC, foundations, sheet-rocking, plumbing, electrical work and materials manufacture.  Additionally, Judi has experience defending construction accident matters on behalf of contractors and owners in which it is alleged that construction workers have been injured due to violations of Sections 200, 240 and 241 of the Labor Law of New York.

RECENT PUBLICATIONS + SPEAKING ENGAGEMENTS

Frequently lectures, chairs professional seminars and publishes articles on topics including pre-litigation risk assessment, federal preemption of pharmaceutical labeling claims, defense of 501(k) medical devices, Daubert issues, strategy in document-intensive mass tort litigation, and other issues where law and science intersect.

Authored or co-authored Harris Beach Legal Alerts, including:

  • "New York’s Appellate Division Affirms Summary Judgment Based on Lack of Specific Causation of Toxic Exposure to Gas" (April 2022).
  • "Amendments to Comprehensive Insurance Disclosure Act, CPLR 3101(f), Mitigate Burden to Civil Defendants" (March 2022).
  • "California Supreme Court Decision Gives Relief to Defendants Seeking to Prevent their Prior Discovery Depositions from Being used at Trial" (March 2022).
  • "New York State Comprehensive Insurance Disclosure Act and Amendments to CPLR 3101(f) Implicate Defendants’ Disclosure Obligations in Civil Litigation" (January 2022).
  • "New York Medical and Life Sciences 2021 Year in Review" (January 2022).
  • "Appellate Decision Permits COVID-19 "Take-Home" Suit to Proceed" (January 2022).
  • "PREP Act Preemption: 'There is no COVID-19 Exception to Federalism'" (December 2021).
  • "Update to Legal Alert: Summary Judgment Reversed In Toxic Tort Matter Involving Bladder Cancer and Exposure to O-Toluidine" (December 2021).
  • "In Lennon v. 56th & Park(NY) Owner LLC, the Second Department Expands Applicability of Collateral Estoppel in Workers’ Compensation Findings" (September 2021).
  • "Court Orders EPA to Take Final Action on Rules Regarding Dispersant Chemicals Used In Mitigating Ocean Oil Spills" (August 2021).
  • "HHS Further Amends Declaration Under the PREP Act to Address Influenza and COVID-19 Impact and Add Pharmacist Vaccinators" (August 2021).
  • “Toll or Suspension? New York Appellate Division Provides Clarity” (June 2021).
  • "SCOTUS Extends Specific Jurisdiction to Ford in Products Cases" (March 2021).
  • "Breast Implant Multidistrict Litigation Claims Pared Down by New Jersey Federal Court" (March 2021).
  • "HHS Further Amends Declaration Under the PREP Act to Expand COVID-19 Vaccinators" (February 2021).
  • "New York Medical and Life Sciences 2020 Year in Review" (January 2021).
  • "Sweeping Changes to Uniform Rules for the Supreme Court and County Court" (January 2021).
  • "New York’s First Department Limits the Ability for Defendants to Testify as to Custom and Practice in Medical Malpractice cases" (January 2021).
  • "Two New York Appellate Court Decisions Affirm Default Orders Dismissing Plaintiffs’ Complaint" (January 2021).
  • “New York High Court Recognizes "American Pipe" Cross-jurisdictional Class Action Tolling but Dismissal Restarts the Clock” (December 4, 2020).
  • “New York Second Department Limits the Ability for Defendants to Testify as to Custom and Practice in Medical Malpractice Cases” (November 24, 2020).
  • “Recent Cases from New York’s Second Department Clarify What is Necessary for a Pre-Note of Issue Dismissal” (November 24, 2020).
  • “FDA and FTC Take Action Regarding Pandemic-Related Products” (November 9, 2020).
  • “FDA Limits Respirator Manufacturers who can Apply for Authorization Under EUA” (October 30, 2020).
  • “New York Supreme Court Allows Plaintiff to Plead Statutory Fraud Claim with Medical Malpractice Negligence Cause of Action” (September 16, 2020).
  • “New Jersey Supreme Court Finds Products Liability Act Does Not Bar Consumer Fraud Act Claims Alleging Express Misrepresentations” (August 20, 2020).
  • “New York Federal Court Finds Italian Tomato Labels Not Misleading in Consumer Fraud Class Action” (August 13, 2020).
  • “The Case of the Exploding Can of PAM: Plaintiffs’ Product Liability Claims Don’t Stick” (June 16, 2020).
  • “New York Federal Court Dismisses Breast Implant Products Liability Claim on Preemption Grounds” (May 12, 2020).
  • “FDA’s Emergency Use Authorization Expands Class of Mask Manufacturers and Distributors Entitled to Immunity” (April 27, 2020).
  • “NIOSH-Approved Masks Defined as Covered Countermeasures for Liability Immunity Under Amended PREP Act Declaration” (April 16, 2020).
  • “Government Issues Immunity to Liability for COVID-19 Countermeasures” (Mar 26, 2020).
  • “New York Medical and Life Sciences: 2019 Year in Review” (Jan 31, 2020).
  • “FDA Proposes Strengthening Warning Labels on Breast Implants” (Oct. 24, 2019).
  • “FDA Requests Worldwide Recall of Certain Textured Breast Implants” (Aug. 7, 2019).
  • “Court Decision Highlights Key Role of Expert Witness in Food Manufacturer Suits” (June 21, 2019).
  • "FDA Determines Textured Breast Implants Do Not Require Safety Ban" (May 2019).
  • "FDA Committee Addresses Safety of Breast Implants" (March 2019).
  • "FDA Issues Warning for Robotically Assisted Mastectomies and Other Cancer Surgeries" (March 2019).
  • "Medical and Life Sciences Year in Review: Last Year’s Lessons Shape This Year’s Outlook" (February 2019).
  • "Significant New York Drug and Device 2017 Product Liability Decisions" (February 2018).
  • "NY High Court Rules on Wrongful Birth Statute of Limitations" (January 2018).
  • "Successor Liability Claim Dismissed Against Medical Device Manufacturer" (December 2017).
  • "Treating Physician Testimony Wins Plavix Product Liability Case Under NY Law" (September 2017).
  • "Drug Product Liability Action in NY Declined to Apply the "Heeding Presumption" (September 2017).
  • "New York State Court Orders Production of Discovery in Native Format with Metadata; Costs Born by Producing Party" (March 2017).
  • "FDA Medwatch: - Breast Implants: Update - Breast Implant-Associated Anaplastic Large Cell Lymphoma (BIA-ALCL)" (March 2017).
  • "Federal Court Judge Grants Summary Judgment in Hip Repair Device Case: Hip case breaks the right way" (March 2017).
  • "FDA Medwatch: Chlorhexidine Gluconate Antiseptics-Rare But Serious Allergic Reactions" (February 2017).
  • "New York Medical and Life Science 2016: Year in Review" (January 2017).
  • "FDA Issues New Guidance for Cybersecurity in Medical Devices" (January, 2017).
  • "New York Medical and Life Science 2015: Year in Review" (January 2016).
  • "To Be or Not To Be: Recent New York Case Law on Prenatal Torts" (December 3, 2015).
  • "New York Court of Appeals: Medical Device Fragment Left in Patient in Surgery Qualifies as Foreign Object re: CPLR §214-a" (June 25, 2015).
  • "Summary Judgment Granted in Medical Device Product Liability Action" (May 11, 2015).
  • "New York State Enacts Rule Requiring Redaction or Omission of Personally Identifiable Information/Confidential Personal Information in Filed Court Papers" (February 26, 2015).
  • "FDA Taking Hands-Off Approach to Oversight of Low-Risk Medical Devices" (February 2015).
  • "New York Medical and Life Sciences 2014: Year in Review" (February 2015).
  • "Pharmaceutical Update: FDA Guidance on Drug Compounding and Outsourcing Facilities" (September 2014).
  • "Nanotechnology Update: FDA Guidance on Cosmetics and Products" (July 2014).
  • "New York Court of Appeals Reinforces Frye Standard in Dismissing Plaintiff’s Mold Claims for Lack of Causation" (April 2014).
  • "Legal Impact of the Recent FDA Acetaminophen Dosage Guideline on Prescribers and Pharmacists" (April 2014).
  • "Adverse Effects of the FDA-Proposed Rule on Mensing Preemption" Harris Beach Advisory (March 2014).
  • "New York Court of Appeals Decision Refuses to Create A New Equitable Cause of Action for Medical Monitoring" (January 2014).
  • "FDA News: MedWatch Consumer Voluntary Reporting Forms Revised to be More Consumer-Friendly / Final Rule Issued for Unique Device Identification System" (September 2013).
  • "Federal Preemption: Supreme Court Finds Claims for Injuries from Generic Pharmaceuticals Barred by FDA Rules" (August 2011).
  • "Supreme Court of the United States Applies Express Preemption to Medical Device Common Law Tort Claim" (March 2008).
  • "Does Supreme Court’s Ruling in Favor of Big Tobacco Mean an End to Large-Dollar Jury Awards?" (March 2007).
  • "Parker v. Mobil: New York High Court Articulates Standard for Causation in Low Dose Benzene Exposure Toxic Tort Action" (December 2006).
  • "New York County Supreme Court Finds Scientific Evidence Related to Mold and Human Illness Does Not Meet the Frye General Acceptance Standard" (October 2006).
  • "FDA Issues New Drug Labeling Rules Supporting Preemption of Warning Claims" (March 2006).
  • "New York Appellate Court Bars Indemnity Claims by a Condominium Owner Where the Owner May Have Some Negligence in Not Remediating a Mold Condition" (February 2006).
  • "New York Appellate Court Prevents Mass Tort Plaintiffs from Invoking Toxic Tort Statute of Limitations Tolling Provision Where Expert Affidavit Lacks Specificity" (November 2005).
  • "McFat is Back: Recognizing the “Catch-All” Nature of N.Y. G.B.L. §349 and Respecting the Liberality of Notice Pleading Under the Federal Rules" (February 2005).

Authored and published numerous articles, including:

  • "New York Medical and Life Sciences: Year in Review 2021", as published in: New York Law Journal (March 9, 2022) and DRI’s In-House Defense Quarterly (Winter 2022).
  • "Medical and Life Sciences Industry Team Co-Leader Judi Abbott Curry Outlines Importance of Quality Assurance Departments" (November 2021).
  • "DRI For Life: Lessons from Disaster," DRI's For The Defense (September 2017).
  • "FDA Final Guidance for Content and Format of ‘Dear Doctor Letters’/Dear Health Care Provider (DHCP) Letters," DRI’s RX for the Defense (June 27, 2014).
  • "FDA Proposes Equal Rights to Brand and Generic Manufacturers to Change Product Labeling," American Bar Association, Section of Litigation, Products Liability, News & Developments (April 23, 2014).
  • "Risk Management; Pre Launch Product Liability Risk Assessment; The Best Defense is a Good Offense." Good Clinical Practices Medtech Workshop (March 2012).
  • "Medical Devices" chapter for the American Bar Association e-book publication FDA Regulation of Nanotechnology (February 2012).
  • "Weighing the Impact of Statistically Insignificant Information Against a Shareholder’s ‘Right to Know’ in Matrixx Initiatives, Inc., et. al. v. Siracusano, et. al.," DRI The Voice (November 2011).
  • "The Safe Cosmetics Act – Proposed 2010 Legislation" American Bar Association TTEL TIPS Practice News (Spring/Summer 2011).
  • "Purchasing Company Assets Without Taking On Liabilities" New York Law Journal (September 9, 2010).
  • "The Federal Preemption Debate in Pharmaceutical Labeling Products Liability Actions” 43 Tort Trial & Ins. Pract. L.J. 35 (2008).
  • "Deference to the FDA’s Preamble,” 26(3) LJN’s Product Liability Law & Strategy (2007).
  • "Navigating the FDA's Recent RiskMAP Guidance," 24(7) LJN’s Product Liability Law & Strategy (2006).
  • "Indoor Air Quality and Sick Building Syndrome—Are You Allergic to Your Building, or Your Boss?" DRI’s Toxic Torts and Environmental Law Committee Newsletter (2006).
  • "2004 Report on the Health Consequences of Smoking: Breathing Life into an Old Defense," DRI's For The Defense (October 2005).
  • "Case Management Orders in Mass Tort Litigation," Martindale Hubbell (September 2005).
  • "Mass Tort Litigation: Using Case Management Orders,” DRI’s For The Defense (August 1999).

Presentations include:

  • The Evolving World of Covid Vaccine Liability Immunity – “In-House Warrior" Podcast - Corporate Counsel Business Journal (February 2022).
  • Litigation Trends in Telemedicine, Medical Malpractice and Healthcare, presented to insurance executives (February 2021).
  • "Recent Developments in Litigation in the Life Science Industry- 2017 Developments and 2018 Outlook" presented to underwriters and insurance executives (May 15, 2018).
  • "Cybersecurity Litigation: What the Hack Do We Do" CLE/CE (2016).
  • "Obesity: The Growing Body of Law" CLE/CE (2014).
  • "Social Media - Risk & Strategy for Life Sciences Companies," Medmarc Webinar (2014).
  • "Off-Label Promotion of Drugs and Devices: Quandaries, Problems and Issues in the World of Social Media," Medmarc Annual Counsel Meeting (2013).
  • "FDA Warning Letters Issued to Clinical Trial Stakeholders in 2012," MedTech Association (2013).
  • "Clinical Trials as a Source of Product Liability Claims, Managing the Risk Clinically and Financially," MedTech Association (2013).
  • "Pre-Launch Product Liability Risk Assessment," MedTech Association (2012).
  • "Good Clinical Practices," MedTech Association (2012).
  • "Supreme Court Round-Up: Decisions of Interest," Federal Preemption CLE/CE (2011).
  • "Size Does Matter: The Impact of Nanotechnology on Human Health and the Environment," ABA TTEL Annual Meeting (2009).
  • "The Future of Nanotechnology for Drugs and Devices," Medmarc Annual Counsel Meeting (2008).
  • "Toxic Torts 101” Introduction to Liability Theories and Defenses in Toxic Tort Litigation," The Hartford Insurance Company (2007).
  • "Risky Business? Charting the Course Through FDA’s RiskMAP Guidance and Its Implications in Pharmaceutical Litigation," Mealeys Defense Strategies in Pharmaceutical Litigation Conference (2006).
  • "Defending Tort Claims Against Drug Products and Medical Devices," Zurich NA Insurance Company (2005).

■ Representative Matters

  • Menza v. Slomin’s, No. 609206/16 (Sup. Ct. Nassau Cty, April 11, 2019) partial summary judgment awarded in toxic tort claim that alleged exposure to residential oil spill caused homeowner to develop lupus and/or the exposure exacerbated her lupus condition. Court dismissed the lupus claim, holding that evidence of a mere association between a toxin and an injury is not sufficient to establish causation, and further, even when general causation is satisfied, the Plaintiff must still establish sufficient exposure to have caused the claimed adverse health effect.
  • Fleming v. Laakso, No. 1:18-cv-01527-RA-BCM (S.D.N.Y. February 27, 2019) dismissal of claims against psychiatrist in federal court action which alleged defamation by performing a mental assessment and deeming Plaintiff unfit for duty at a hospital related clinic, medical malpractice and tortious interference with prospective business relations. Court held complaint failed to state a cause of action under FRCP 12(b)(6), did not plead the necessary elements of defamation, tortious interference with prospective business relations or medical malpractice, and dismissal was appropriate based upon the common interest qualified privilege.
  • Ford v. Riina, 2017 WL 1709471 (Sup. Ct. N.Y. Cty, May 2, 2017) summary judgment granted and affirmed on appeal to the Appellate Division First Department 160 A.D.3d 588, 75 N.Y.S.3d 13 (1st Dept. April 26, 2018) on behalf of endovascular device manufacturer Concentric Medical, Inc. (now Stryker Neurovascular) in medical device product liability case brought on behalf of a severely brain-damaged plaintiff, dismissing all claims under CPLR R. 3212, including design defect, failure to warn and breach of warranty; holding that device manufacturer established prima facie evidence that the product labeling conveyed adequate warnings; prima facie entitlement to summary dismissal of plaintiff’s design defect claim by establishing that the endovascular retrieval device was state of the art; and holding expert witness affidavits in opposition were speculative and conclusory, unsupported by any scientific basis, statistics, analysis or empirical data, as experts failed to disclose the experimental data and test conditions used to generate their opinions.
  • Tomaselli v. Zimmer, 2017 WL 1011492 (S.D.N.Y. Mar. 15, 2017) adopting Magistrate Report and Recommendation (Jan. 20, 2017) summary judgment granted and affirmed on appeal to the United States Court of Appeals for the Second Circuit 2018 WL 1612230 (2d Cir. Apr. 4, 2018) on behalf of GTR fixation medical device manufacturer Pioneer Surgical and distributor Zimmer under FRCP 56, holding that decision of a physician, as a learned intermediary, not to inform the patient of the risk of medical device fracture does not support the physician’s lack of awareness of the risk; the surgeon’s independent awareness of the risk severed the required causal connection between an alleged failure to warn and plaintiff’s injury; the instructions for use referred specifically to cable breakage and as such were adequate as a matter of law; failure to identify product defect and offer expert evidence of alternative feasible design or deviation from defendants’ design and engineering specifications were fatal to design and manufacturing defect claims, required summary judgment on negligence and strict product liability claims and breach of implied and express warranty.
  • Hudson v. Sunnyside Corp., 155 A.D.3d 1532 (4th Dep’t 2017) dismissal affirmed on appeal in toxic tort product liability action involving exposure to muriatic acid used to clean an indoor swimming pool. Plaintiff asserted several causes of action including negligence in failure to warn, specifically, that defendant’s product failed to provide an affirmative statement of the principal hazard associated with the use of the product, and adequate precautionary measures regarding actions to be followed or avoided when using the product, making the product a “misbranded hazardous substance” in violation of the Federal Hazardous Substances Act (“FHSA”), 15 U.S.C. § 1261(p). In a unanimous decision, the Appellate Division, Fourth Department affirmed finding that the label was in compliance with the FHSA in providing sufficient statements of the principal hazard and of the precautionary measures to be followed or avoided.
  • Greenwood v. Tehrani, 2017 WL 4083099, 2017 NY Slip Op 31963(U) (Sup. Ct. N.Y. Cty, September 15, 2017) dismissal of plaintiff’s medical malpractice, lack of informed consent, and negligence claims against a medical device manufacturer. Court rejected claims that sales representative’s presence invoked duty to warn patient, as the manufacturer’s duty is to warn the medical community, not the patient, of the product’s risks, as it is the physician whose duty it is to balance the risks against the benefits of various medical products and treatments and to prescribe them and supervise their effects. Medical device manufacturer did not have duty to ensure the device was used by the physician in accordance with FDA guidelines and plaintiff could not assert medical malpractice and lack of informed consent claims against medical device manufacturer, since a manufacturer neither practices medicine nor has a duty to inform a patient of the risks and benefits of a particular treatment.
  • Vidal v. Dentsply, Index 18110/2010 (Supreme Court of the State of New York, Washington County, April 23, 2015): summary judgment on all causes of action in a medical device product liability action involving dental equipment alleged to give patient an electric shock. In the face of learned intermediary testimony and plaintiff’s reliance upon a mere temporal relationships between exposure to the product and the subsequent development of later injury, the Supreme Court found plaintiff failed to make a showing of general causation by submission of expert reports or past events establishing that the device had propensity to cause electric shock.
  • Coratti v. Wella Corporation, 56 A.D.3d 343, 867 N.Y.S.2d 421 (New York Appellate Division, First Department 2008): summary judgment on behalf of L’Oreal, affirmed on appeal, establishing that the scientific community has not generally accepted the theory that MCS can be caused by daily, occupational exposure to the chemicals contained in hair dyes.
  • Hanlon v. Gliatech, (United States District Court, Eastern District of New York 2008): FRCP 12(b)(6) dismissal of negligence, strict liability and fraud claims on behalf of manufacturer of 510K medical device, a surgical adhesive used in orthopedics.
  • Burger v. Union Carbide Corp., 304 A.D.2d 700 (New York Appellate Division, Second Department 2003): dismissal premised upon New York’s “toxic tort” statute of limitations.
  • Krasnopolsky v. Warner-Lambert, Co., 799 F. Supp. 1342 (United States District Court, Eastern District of New York 1992): pharmaceutical manufacturer discharged its duty to warn through Learned Intermediary;
  • Warner v. American Fluoride, 204 A.D.2d 1, 616 N.Y.S.2d 534 (New York Appellate Division, Second Department 1994): FIFRA preemption of pesticide labeling claims.

■ Professional and Civic

  • Claims and Litigation Management Alliance, member
  • Defense Research Institute, member
  • New York State Bar Association, member, past Officer and Secretary of the Food, Drug, and Cosmetic Section (2013-2015)

■ Admissions

  • Long Island Business News, Who’s Who in Women in Professional Services, August 21, 2015; August 19, 2016; and August 18, 2017 editions
  • Super Lawyers, Class Action/Mass Torts, since 2008
  • Berkley Life Sciences, Elite Defense Counsel Network, member

 

■ Education

Fordham University Law School
 ,JD
 ,1986
State University of New York at Stony Brook
 ,BA
 ,1983

Harris Beach and its subsidiaries provide a full range of legal and professional services for clients across New York state, as well as nationally and internationally. Harris Beach is among the country’s top law firms as ranked by The National Law Journal and is among the BTI Elite law firms based on in-depth interviews of more than 600 corporate counsel at the world’s largest and most influential companies. Our clients include Fortune 100 corporations, privately-held companies, emerging businesses, public sector entities, not-for-profit organizations and individuals. Principal industries we represent include education, energy, financial, food and beverage, health care, insurance, manufacturing, medical and life sciences, real estate developers, and state and local governments and authorities.

Industry Teams
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Medical and Life Sciences
Municipalities and Local Agencies
Nanotechnology
Photonics
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Science and Technology
Telecommunications and Media
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Practices
Alternative Dispute Resolution
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Offices throughout New York:

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Albany, NY 12207
518-427-9700

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Buffalo, NY 14210
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Ithaca, NY 14850
607-273-6444

Long Island
333 Earle Ovington Boulevard
Uniondale, NY 11553
516-880-8484

New York City
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New York, NY 10005
212-687-0100

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Pittsford, NY 14534
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Saratoga Springs, NY 12866
518-587-0551

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Syracuse, NY 13202
315-423-7100

White Plains
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White Plains, NY 10601
914-683-1200

Offices also in:

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New Haven, CT 06510
203-784-3159

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Newark, NJ 07102
973-848-1244

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Content current as of May 20, 2022 12:07 am
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