First Department Splits in Defective Design Case

In Yun Tung Chow v. Reckitt & Colman, Inc., the plaintiff sustained an eye injury while using defendants’ product, crystalline sodium hydroxide, packaged as a drain cleaner called “Lewis Red Devil Lye” when it splashed back into his eye while trying to unclog a drain. The plaintiff claimed that the warnings were inadequate and the design was defective. The Supreme Court granted the defendants’ motion for summary judgment and dismissed the complaint. The First Department agreed that the Supreme Court properly dismissed the inadequate warning claim, but split 3-2 on the defective design claim. In particular, they disagreed over whether the plaintiff’s expert affidavit sufficiently set forth a foundation for his conclusion that his suggested alternative designs are feasible.