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Skirt's marketers claimed no liability for flammability
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Verdict:Defense
Case Type:Design Defect, Products Liability - Marketing Defect, Products Liability - Implied Warranty of Fitness for a Particular Purpose, Strict Liability
Case Name:Melissa Luftman v. Fashion 21, Inc. and Forever 21 Retail, Inc., No. 107761/06
Venue:New York Supreme, NY
Judge:Marcy S. Friedman
Date:12-16-2009
Plaintiff(s):
Attorney(s):Justin S. Blash; trial counsel, Neimark & Neimark LLP; New City, NY, for Melissa Luftman
Expert(s):Rex Shad; Clothing Flammability; Chicago, IL called by: Justin Blash
Michael Fiorillo M.D.; Plastic Surgery/Reconstructive Surgery; Pearl River, NY called by: Justin Blash
Defendants(s):
Attorney(s):Nicholas J. Sciarrino; Kim, Patterson & Sciarrino, P.C.; Bayside, NY, for Fashion 21 Inc., Forever 21 Retail Inc., Original Inc.
Expert(s):Carl Abraham Ph.D.; Consumer Products; Great Neck, NY called by: Nicholas Sciarrino
Insurers:LIG Insurance Co. for all defendants
Facts:On July 26, 2005, plaintiff Melissa Luftman, 27, a computer consultant, visited the pedestrian plaza that is located at 1 Penn Plaza, in Manhattan. She was wearing a cotton peasant-style cut skirt. The skirt ignited while she was seated on a bench, and she sustained burns of her buttocks and a leg.

Luftman sued the skirt's retailer, Forever 21 Retail Inc., and a related entity, Fashion 21 Inc. She alleged that the skirt was negligently designed and marketed, that the resultant defect constituted a breach of the product's implied warranty of fitness for its particular purpose, and that the defendants were strictly liable for the defect and the resultant breach of warranty.

The defendants impleaded the skirt's importer, The Original Inc. The direct defendants sought contractual indemnification. They moved for summary judgment of the indemnification claim, and the motion was granted.

Luftman claimed that the skirt was ignited by a lit cigarette that had been tossed onto the ground. She contended that the garment quickly became engulfed by flames.

Luftman's fabric-flammability expert reviewed the evidence and testimony, and he opined that the skirt burned more quickly than federal standards allow. He also opined that the skirt's fabric achieved a hotter temperature than federal standards allow. He contended that the material's weight was not sufficient. Luftman's counsel also claimed that the skirt's flammability had not been tested prior to the garment's sale, though federal law requires such tests.

Defense counsel conceded that the skirt's flammability had not been tested, but he contended that the garment was reasonably safe and that it satisfied all relevant standards of flammability.

Defense counsel also challenged Luftman's claim that the skirt was ignited by a cigarette. The defense's safety expert tested a similar skirt, and he opined that a cigarette would not be likely to cause a quick burn of the garment. He suggested that the accident was more likely caused by a match or a cigarette lighter. However, Luftman's fabric-flammability expert noted that the defense's expert's tests did not include an exact exemplar of Luftman's skirt, and, as such, he opined that the defense's tests were not significant.

Injury:Luftman sustained second- and third-degree burns of her buttocks and the upper portion of her left leg. She underwent the application of grafts of skins, and she endured a long hospitalization.

Luftman claimed that she bears permanent residual scars, and she contended that the disfigurement causes self-consciousness. She sought recovery of a total of $5 million for her past and future pain and suffering.

Defense counsel contended that Luftman experienced a good recovery. He claimed that she retains merely cosmetic blemishes that do not impair her functionality.

Verdict Information:The jury rendered a defense verdict. It found that The Original negligently failed to test the skirt's flammability, but that that negligence was not a proximate cause of the accident. It also found that the defendants did not breach the product's implied warranty of fitness for its particular purpose.
Post Trial:Plaintiff's counsel has filed a motion to set aside the verdict.