New York Court Reinstates Restaurant Worker’s Product Liability Suit

By | May 13, 2011

New York’s top court this week reinstated a Manhattan restaurant worker’s product liability lawsuit over a lye-crystal drain cleaner, concluding that the companies behind it have to do more than simply state the chemical compound is inherently dangerous and everyone knows it.

Yun Tung Chow, who couldn’t read the directions in English, was burned and blinded in one eye in 2001 when he mixed three times the usual amount of lye crystals with water, poured that down a clogged floor drain, and it splashed back.

His lawsuit against the manufacturer, distributor and package designer of Lewis Red Devil Lye claimed defective design and inadequate warning. It was dismissed by a judge before trial and that was upheld by a divided midlevel court.

The companies emphasized that the restaurant manager failed to follow label instructions and warnings for using the 100 percent sodium hydroxide. The package directed users to wear goggles and gloves, keep their faces away from cans and drains and to add one tablespoon of the crystals to the drain, noting that misuse “may result in splash back and cause serious injury.”

But the Court of Appeals said that New York law requires companies facing defective design claims to show that their product doesn’t present an unreasonable risk of harm to the user.

“At this stage, defendants cannot rely simply on the fact that their product is what they say it is and that everyone knows that lye is dangerous; that only begs the question at the heart of the merits of the defective design claim: knowing how dangerous lye is, was it reasonable for defendants to place it into the stream of commerce as a drain cleaning product for use by a layperson?” Chief Judge Jonathan Lippman wrote. “Defendants offered no answer to this question, and thus, did not demonstrate their entitlement to judgment as a matter of law.”

Chow and his wife sued Reckitt & Colman Inc. and its successor Reckitt Benckiser Inc., which holds the rights to Lewis Red Devil Lye and designed its container and labeling. They also sued Malco Products Inc., which assembled and packaged the product according to Reckitt specifications.

“I think it’s good that the Court of Appeals basically reaffirms in a product liability case that the defendant needs to present expert proof of some kind,” said attorney Lisa Comeau, representing Chow.

The case now will go back for trial, with the burden shifting to the plaintiffs to show it was a defective product, she said.

Brendan Fitzpatrick, attorney for Reckitt, declined to comment. Reckitt Benckiser doesn’t list Red Devil Lye among its current products.

A call to Malco’s attorney was not immediately returned.

In a concurring opinion, Judge Robert Smith wrote that the ruling is a result of New York’s procedural law and not the merits of the liability claim. He noted that Chow’s expert witness proposed several products as “safer” alternatives to lye, but didn’t show they would perform as well at a reasonable cost.

Smith said it might not be hard for the companies to present evidence that there’s no safer and functionally equivalent product. “An affidavit from someone knowledgeable in the industry — either a retained expert or an employee of one of the defendants — could have done it,” he wrote.

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