The Butler Snow contingent on the DDL blogging team had nothing to do with this post.
New York law is surprisingly good for defendants. Or maybe we’re jaded by bad experiences in other jurisdictions, and New York law manages to seem fair only by comparison. Certainly, we’d rather be in a courtroom in New York than in California, Illinois, or Pennsylvania.
Silverstein v. Coolsculpting – Zeltiq Aesthetics, Inc., 2025 N.Y. App. Div. LEXIS 1118, 2025 NY Slip Op. 01183 (N.Y. App. Div. Feb. 27, 2025), is an example of a New York decision that treats a medical device defendant reasonably well. To begin with, in New York, defendants are permitted to appeal denials of summary judgment as of right. Silverstein is a New York Appellate Division decision unanimously reversing denial of summary judgment. That makes it the very best form of authority. A defense hack can cite Silverstein and tell a judge that it means that a denial of summary judgment will be reversed. (In the hierarchy of case law authority, one ascends from good language in a case that came out the wrong way, nice dicta, a case that came out the right way, an appellate case affirming a case that came out the right way, and an appellate court reversing a case that came out the wrong way. Silverstein sits at the top of this hierarchy.)
In Silverstein, the plaintiff sustained second and third degree burns from ice packs applied to her skin after treatment by the medical device at issue. She alleged that the manufacturer of the medical device had a duty to warn of “synergistic” risks caused by the use of another product it did not make (the ice pack) in conjunction with a procedure using the device it did make. The best piece of evidence the plaintiff had was a slide the manufacturer provided to clinics with recommendations for mitigating pain. The slide listed icing, among other methods, as a way of possibly reducing the severity of side effects. But that is not the same thing as the ice packs being necessary to use the medical device. In fact, the ice packs were not necessary. The device functioned without ice packs and ice packs were not included among the supplies accompanying the device. The user manual did not recommend using ice packs. Rather, the manual merely listed ice packs as something that might be “considered for use only after the treatment was completed.”
Thus, the narrow exception involving products that required some other product in order to function properly (think bare metal/asbestos cases) was not applicable. Otherwise, there is no duty to warn about the risks of someone else’s product.
Further, the learned intermediary rule applied and the claimed warning was “obvious” to pretty much anyone and was well-known to this prescriber. He testified that “through his education and training, he was aware of and knew the dangers of placing ice on bare skin, and that those dangers were basic medical knowledge.” Thus, in addition to there being no duty, there was no warning causation either.