Summary
In Flores, the Court dismissed the plaintiff's design defect claim because she merely alleged the results of a design defect, instead of the defect that caused the result.. The plaintiff brought a design defect claim against a company alleging that she was injured from the use of prosthetic components that were used during her left knee replacement surgery.
Summary of this case from In re Valsartan, Losartan, & Irbesartan Prods. Liab. Litig.Opinion
21448/16
11-23-2020
Debra J. Humphrey, Esq., Marc J. Bern & Partners LLP, New York, NY, for Plaintiff. Carla R. Karp, Esq., Goodwin Procter LLP, New York, NY, for Defendant.
Debra J. Humphrey, Esq., Marc J. Bern & Partners LLP, New York, NY, for Plaintiff.
Carla R. Karp, Esq., Goodwin Procter LLP, New York, NY, for Defendant.
Joseph E. Capella, J.
The following papers numbered 1 to 10 read on this motion, noticed on February 7, 2020, and duly submitted on September 18, 2020.
PAPERS NUMBERED
NOTICE OF MOTION AND AFFIDAVITS ANNEXED 1. 2, 5-6
ANSWERING AFFIDAVIT AND EXHIBITS 8
REPLY AFFIDAVIT AND EXHIBITS 3
MEMO OF LAW 3, 4, 7, 9-10
UPON THE FOREGOING CITED PAPERS, THE DECISION/ORDER IN THIS MOTION IS AS FOLLOWS:
The second amended complaint (complaint) alleges that plaintiff was injured from the use of prosthetic components (Genesis SPC 2) that were manufactured by defendant, Smith and Nephew, Inc. (Smith), and used during plaintiff's left knee replacement surgery on December 10, 2013. By notice of motion dated January 8, 2020, Smith seeks dismissal based on a failure to state a cause of action. ( CPLR 3211(a)(7).) Smith also moved by notice to motion dated March 10, 2020, to strike plaintiff's opposition papers to its original motion on the premise that said opposition papers were late. The Court will exercise its discretion and accept the plaintiff's late opposition papers, in addition to Smith's reply papers to both motions. Therefore, Smith's motion to dismiss plaintiff's late opposition papers is denied. After reviewing all of the papers, the motion by Smith to dismiss for failing to state a cause of action is granted in part and denied in part. According to Smith, the complaint sets forth boilerplate allegations sounding in numerous theories of product liability, including failure to warn, design defect and manufacturing defect, that are completely bereft of facts to support each cause of action. Given the aforementioned, Smith alleges that the complaint fails to put it on notice of what plaintiff actually claims that Smith did wrong with respect to her knee replacement device — be it an error in the warnings, design or manufacturing — or how Smith caused plaintiff's alleged injury.
The complaint contains six causes of action against Smith: strict products liability for design defect (third cause of action), strict products liability for manufacturing defect (fourth cause of action), strict products liability for failure to warn (fifth cause of action), breach of express warranty (sixth cause of action), breach of implied warranty (seventh cause of action) and negligence (eighth cause of action). It should be noted that the first two causes of action (i.e., medical malpractice and lack of informed consent), which were brought against the co-defendants (Dr. Youm and two medical facilities), have been discontinued. Now in deciding a motion pursuant to CPLR 3211(a)(7), the Court must decide whether the facts (emphasis added) alleged in the complaint demonstrate the material elements of a cause of action. ( Professional v. City of New York , 34 AD2d 918 [1st Dept 1970] ; CPLR 3013.) In doing so, the Court is required to afford the pleadings a liberal construction, accept all of the facts alleged as true and accord plaintiff the benefit of every possible inference. ( Frank v. DaimlerChrysler , 292 AD2d 118 [1st Dept 2002].) And consistent with construing the pleadings liberally, any defects should be ignored if a substantial right of a party is not prejudiced. ( Foley v. D'Agostino , 21 AD2d 60 [1st Dept 1964].) Applying this standard to the instant complaint, the Court will first address plaintiff's third cause of action for design defect.
To state a cause of action sounding in strict products liability for defective design, plaintiff must allege facts demonstrating (emphasis added) that (1) the product as designed was not reasonably safe, (2) it was feasible to design the product in a safer manner and (3) the design defect was a substantial factor in causing plaintiff's injury. ( Voss v. Black & Decker , 59 NY2d 102 [1983].) For example, the absence of safeguards on a machine would constitute a fact that may demonstrate a design defect. ( Micallef v. Miehle , 39 NY2d 376 [1976].) Here, as part of the first cause of action for medical malpractice, the complaint includes the following allegation: "this left knee prosthesis prematurely loosened, failed, and caused plaintiff injuries and damage." The relevant portions of the instant complaint regarding design defect alleges the following: Smith "owed a duty to design the GENESIS SPC 2 so as to avoid any unreasonable risk of harm ... to thoroughly test it product ... [and] at the time the GENESIS SPC 2 was placed into the stream of commerce, there were safer, feasible alternatives that did not carry the same risks and dangers that said product carried."
The complaint further alleges: "the defective product ... was unreasonably dangerous for its intended use ... the utility of the product did not outweigh the risk ... a reasonable person ... would have concluded that the GENESIS SPC 2 should not have been marketed in the condition it was ... [and] the GENESIS SPC 2 utilized in plaintiff's December 10, 2013 surgical procedure reached plaintiff without substantial change or modification." There is little dispute that the complaint sets forth the material elements required for a defective design cause of action; however, the complaint is completely devoid of any facts that may demonstrate and/or constitute the very material elements in question. The sole alleged fact (which was included in the medical malpractice cause of action) that the "left knee prosthesis prematurely loosened" may demonstrate the results of a design defect, but it does not describe the design defect that alleged caused the premature loosening. Even the most liberal reading of the complaint does not put Smith on notice as to what plaintiff believes to be the problem or defect in the products' design.
While it is true that in deciding a motion to dismiss for failing to state a cause of action, every fact alleged must be assumed to be true, it should go without saying that there must still be facts alleged in the complaint, which is not the case here. Moreover, because the Court is not concerned with whether plaintiff can prove her case but only whether a cause of action has been stated in the complaint ( Kober v. Kober , 16 NY2d 191 [1965] ), there is case law permitting the Court to consider affidavits ( Rovello v. Orofino , 40 NY2d 633 [1976] ), and a bill of particulars ( Nader v. General Motors , 25 NY2d 560 [1970] ), in resolving the motion. There is no expert affirmation nor an affidavit from someone with personal knowledge included in plaintiff's opposition papers. And although plaintiff does not argue in her opposition papers that the Court should consider her bill of particulars, nevertheless, a review of same reveals the following sole factual allegation regarding the alleged design defect: "upon information and belief ... the base plate collapsed, failed, or otherwise broke in situ, leading to instability and premature wear of the construct." Arguably the base plate collapsing may be the result of a design defect, but the Court fails to see how this could constitute the design defect itself. In other words, what defect in the design of the product resulted in the collapse of the base plate. Therefore, based on the aforementioned, plaintiff's third cause of action for design defect is dismissed.
Plaintiff's fourth cause of action alleges strict products liability for manufacturing defect. The harm from a manufacturing defect arises from the product's failure to perform in the intended manner due to some flaw in the fabrication process. (Denny v. Ford , 87 NY2d 238 [1995].) Plaintiff must establish that the product was not built to specifications or that the product deviated from any such specification or design. ( McArdle v. Navistar , 293 AD2d 931 [3rd Dept 2002].) The material elements of a manufacturing defect include (1) a defect that existed at the time the product left the manufacturer, (2) a causal connection between the defect and the injury and (3) damage to plaintiff. (Id .) An example of a manufacturing defect is where it was alleged that the welds used on the assembly line in the manufacturing of oil-filled space heaters were prone to breech, causing oil to spurt out when the heater was operated in an upside down position. ( Pierre-Louis v. DeLonghi , 66 AD3d 859 [2nd Dept 2009].) Here, the relevant portions of the instant complaint regarding manufacturing defect alleges the following: "the GENESIS SPC2, as construed at the time it was placed into the stream of commerce, deviated from such specifications or intended design, resulting in a defective condition ... [and] was misconstrued, in that it failed to conform to the product's plans, specifications, or intended design ... [and] reached plaintiff without substantial change or modification."
Once again the complaint sets forth the material elements required for a manufacturing defect cause of action; however, it is completely devoid of any facts that may demonstrate and/or constitute the very material elements in question. The complaint contains no facts demonstrating how the product deviated from its intended design, nor does it identify any problems in the manufacturing process that purportedly caused the device to perform in a manner not intended. There is no expert affirmation nor an affidavit from someone with personal knowledge included in plaintiff's opposition papers, and the bill of particulars does not include any additional facts. Therefore, plaintiff's fourth cause of action for manufacturing defect is dismissed.
Plaintiff's fifth cause of action alleges strict products liability for failing to warn. The material elements of a failure to warn cause of action includes (1) a manufacturer's duty to warn (2) against dangers resulting from foreseeable uses about which it knew or should have known, and (3) the failure to do so was the proximate cause of harm. ( Liriano v. Hobart , 92 NY2d 232 [1998] (alleged failure to place warnings on meat grinder machine indicating that it was dangerous to operate the machine without the safety guards in place).) The relevant portions of the instant complaint regarding a failure to warn alleges the following: "defendant owed a duty to plaintiff, and her physicians, to place into the stream of commerce a product that provided adequate warning or instructions regarding its dangerous propensities, hazards, and/or risks ... [and] the GENESIS SPC 2 failed to give adequate warning or instruction of its dangerous propensities, hazards, and/or risks, namely that it could loosen and fail prematurely." According to Smith, these allegations are conclusory and "plaintiff does not identify the warnings that accompanied the device and does not identify how that particular language purportedly was inadequate." Unlike the previously plead causes of action, however, here plaintiff includes the specific factual allegation that Smith failed to warn of a dangerous propensity to loosen or fail prematurely. It must be emphasized that the Court is not concerned with whether plaintiff can prove the aforementioned allegation, but only whether a cause of action has been stated. ( Kober v. Kober , 16 NY2d 191.) Resolving whether there are issues of facts warranting a trial on this issue may later be resolved via the more comprehensive motion for summary judgment ( CPLR 3212 ). But for purposes of the instant motion ( CPLR 3211(a)(7) ), affording this pleading a liberal construction, accepting all of the facts alleged as true and according plaintiff the benefit of every possible inference ( Frank v. DaimlerChrysler , 292 AD2d 118 ), the Court is satisfied that plaintiff has stated a strict products liability cause of action for failing to warn.
Plaintiff's sixth cause of action alleges breach of express warranty, and plaintiff's seventh cause of action alleges breach of implied warranty. The material elements for breach of express warranty include (1) a material representation expressly made about the product by defendant, (2) the truthfulness of this representation was relied upon by plaintiff, (3) the product did not live up to the representation and (4) plaintiff suffered damages as a result of a breach of the express warranty. ( CBS v. Ziff-Davis , 75 NY2d 496 [1990].) In order for an express warranty to exist, there must be an affirmation of fact or promise that induced the plaintiff, and plaintiff must set forth the terms of the alleged express warranty with sufficient particularity. ( Hicksville v. Stanley , 37 AD3d 218 [1st Dept 2007] ; Friedman v. Medtronic , 42 AD2d 185 [2nd Dept 1973].) The relevant portions of the instant complaint regarding breach of express warranty alleges the following: "[Smith] expressly warranted that GENESIS SPC 2 was reasonably safe and fit for its ordinary purpose, namely as a reasonably safe and fit prosthetic device for a total knee replacement ... [and] the GENESIS SPC 2 failed to conform to its express representation, because it was not reasonably safe and fit for those express representations, or the ordinary purpose for which it was intended." The complaint fails to plead any facts regarding the language or terms of the alleged express warranty, or how the express warranty was made. And a review of the bill of particulars reveals that it would be fair to conclude that plaintiff did not rely on any express warranty when she states the following: "plaintiff did not receive any written or oral warnings or statements by [Smith], and thus did not rely on any purported material." Therefore, plaintiff's sixth cause of action for breach of express warranty is dismissed.
Unlike an express warranty, an implied warranty is a guarantee by the seller that its goods are fit for the intended purpose for which they are used and that they will pass in the trade without objection. ( Wojcik v. Empire , 14 AD3d 63 [3rd Dept 2004].) The focus of a breach of implied warranty is whether the product meets the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners. ( Denny v. Ford , 87 NY2d 248 [1995].) The relevant portions of the instant complaint regarding breach of implied warranty allege the following: "[Smith] impliedly warranted to the general public, including plaintiff, that the GENESIS SPC 2 was reasonably fit for the ordinary purpose for which it was intended, namely as a reasonably safe and fit prosthetic device for a total knee replacement ... [and the] GENESIS SPC 2 was defective and not reasonably fit to be used for its intended purpose, as its component parts had a propensity to fail, loosen prematurely, and require revision surgery." The Court is not concerned with whether plaintiff can prove the aforementioned limited factual allegations, but only whether a cause of action has been stated. ( Kober v. Kober , 16 NY2d 191.) Therefore, affording this pleading a liberal construction, accepting all of the facts alleged as true and according plaintiff the benefit of every possible inference ( Frank v. DaimlerChrysler , 292 AD2d 118 ), the Court is satisfied that plaintiff has stated a cause of action for implied warranty.
Plaintiff's eighth cause of action is for negligence, the material elements of which include (1) defendant owed a duty to plaintiff, (2) defend breached its duty and (3) the breach was a proximate cause of plaintiff's injury. ( Solomon v. City of New York , 66 NY2d 1026 [1985].) The relevant portions of the instant complaint regarding negligence allege as follows: "[Smith] owed a duty to plaintiff to use reasonable care in the design, manufacture, labeling, and marketing of the product when it is used in the manner for which it was intended ... [Smith] knew or had reason to know that its product was or was likely to be dangerous for the use for which it was supplied ... [Smith] failed to exercise reasonable care to inform plaintiff, or her physicians, of the product's dangerous condition or the facts which make it likely dangerous ... [Smith] breached it duty of care owed to plaintiff, in that it failed to adequately warn of the GENESIS SPC 2's defects and dangerous propensities, namely that it could prematurely loosen, fail, and cause serious personal injuries."
Plaintiff's failure to warn claim, which may be brought on a strict liability or negligence theory, is primarily governed by negligence principles. ( Martin v. Hacker , 83 NY2d 1 [ ].) Manufacturers have a duty to warn against latent dangers resulting from the foreseeable use of its product, and this duty extends to the original purchaser and to third persons exposed to a foreseeable and unreasonable risk of harm by the failure to warn. ( McLaughlin v. Mine , 11 NY2d 62 [ ].) In such cases the Court is typically called upon to determine whether there is any proof in the record of a foreseeable and unreasonable risk, and whether there was a duty to warn. ( NYC Asbestos Litigation v. Chesterton , 27 NY3d 765 [2016].) But as previously mentioned, in this motion to dismiss for failing to state a cause of action ( CPLR 3211(a)(7) ), the Court is not concerned with whether plaintiff can prove the aforementioned limited factual allegations, but only whether a cause of action has been stated. ( Kober v. Kober , 16 NY2d 191.) Therefore, affording the pleading a liberal construction, accepting all of the facts alleged as true and according plaintiff the benefit of every possible inference ( Frank v. DaimlerChrysler , 292 AD2d 118 ), the Court is satisfied that plaintiff has stated a cause of action for negligence.
In sum, the motion by Smith is granted only to the extent of dismissing plaintiff's third cause of action for design defect, fourth cause of action for manufacturing defect, and sixth cause of action for express warranty. Plaintiff's fifth cause of action for failing to warn, seventh cause of action for implied warranty, and eight cause of action for negligence remain. Smith is directed to serve a copy of this decision/order with notice of entry by first class mail upon plaintiff within 20 days of receipt of copy of same. This constitutes the decision and order of this court.