Opinion
01 Civ. 9564 (PKL).
December 11, 2007
LAW OFFICE OF RONALD R. BENJAMIN, Ronald R. Benjamin, Esq., Binghamton, NY. Attorney for Plaintiff.
KENT MCBRIDE, P.C., Ernest F. Koschineg, Esq., Philadelphia, PA. Attorney for Defendant Abco Dealers, Inc..
SEGAL MCCAMBRIDGE SINGER MAHONEY, LTD., Patricia J. Baxter, Esq., New York, NY. Attorney for Third-Party Defendant Safeskin Corp.
OPINION AND ORDER
This is a products liability action stemming from plaintiff's use of latex examination gloves. Plaintiff Gloria Morgan ("Morgan"), who has a latex allergy, asserts causes of action in negligence and gross negligence, strict liability, failure to warn and misrepresentation, and breach of implied and express warranties. Defendant Abco Dealers, Inc. ("Abco"), a buying cooperative of medical device distributors, moves this Court for summary judgment on all claims against it. Abco argues that: (1) all causes of action fail to comply with the relevant statutes of limitations; (2) all causes of action are preempted by federal law; and (3) it did not make express warranties to Morgan. For the reasons set forth below, Abco's motion is GRANTED IN PART and DENIED IN PART.
By letter dated May 31, 2007, third-party defendant, Safeskin Corporation, joins Abco's motion for summary judgment.
Background
The following overview is derived from the submissions of the parties, and unless otherwise noted, shall constitute the facts not in dispute.
While both parties submitted statements pursuant to Local Rule 56.1, the Court now notes the deficiency of Abco's submission. Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York requires a party moving for summary judgment to submit a statement of the allegedly undisputed facts on which the moving party relies, together with citation to the admissible evidence of record supporting each such fact. See Local Rule 56.1(a), (d). In the present case, Abco's statement of facts provides the Court with few facts; it is instead largely comprised of legal argument. Consequently, the Court had to conduct a more assiduous review of the record than necessary.
Beginning in 1990, Morgan was employed as a registered nurse at Montefiore Medical Center ("Montefiore"). (See Def.'s Exs. I, D.) She first developed localized hand dermatitis and urticaria in 1992 after using powdered gloves. (Def.'s Ex. I; Def.'s 56.1 ¶ 8 n. 2; Pl.'s 56.1 ¶ 8.) On September 29, 1995, Morgan visited the Employee Health Service at Montefiore, complaining of "rash and itching on hands, running nose, sneezing, [and] breathing difficulty with powdered gloves." (Def.'s Ex. C; see also Def.'s Reply Ex. B at 8.) Nurse Alfred Carbuto determined that Morgan had an allergy to powdered gloves (Def.'s 56.1 ¶ 7; Pl.'s 56.1 ¶ 7) and told Morgan to wear Safeskin non-powdered gloves, a product which she already had begun using. (Def.'s Ex. C; Def.'s Reply Ex. B at 10.) Morgan's condition improved upon switching to the non-powdered gloves and then vinyl gloves. (Def.'s Exs. I, B, D.)
In approximately June 1998, Morgan "began to experience coughing, chest tightness, shortness of breath and sneezing while working on the surgical floor. Her symptoms would develop within one hour of entering the ward and improvement or resolution of the symptoms occured [sic] after exiting this area." (Def.'s Ex. I.) She was diagnosed with asthma in October 1998 and prescribed medication that gradually led to symptomatic improvement. (Id.) On March 31, 1999, however, Morgan "developed acute shortness of breath, coughing and wheezing while at work requiring emergency room treatment with nebulized bronchodilators." (Id.) An allergy consult soon thereafter revealed a "very strong sensitivity (Class V) to latex protein. . . ." (Id.) Morgan was consequently placed off-duty and advised to avoid latex exposure. (Id.) On May 6, 1999, she filed notice and proof of claim for disability benefits. (Pl.'s Ex. E.) Morgan never returned to work at Montefiore. (Def.'s Ex. H.)
Though the parties do not give the specific date of this occurrence, Morgan's independent medical examination report, dated June 14, 1999, states that it occurred "[a]pproximately one year ago." (Def.'s Ex. I.)
On June 14, 1999, Dr. Alan Kaufman conducted an independent medical examination of Morgan. (Def.'s Ex. I.) Based upon Morgan's medical history, allergy history, and a physical examination, Dr. Kaufman opined that:
[T]he claimant, Gloria Morgan has Type 1 (IgE-mediated and Type IV cell-mediated) natural rubber latex allergy triggering occupational rhinoconjunctivitis, asthma and contact urticaria and/or eczema. There has been [sic] no episodes of latex-induced anaphylaxis. . . .
The degree of disability is marked and only by providing a "latex free" environment in which no latex gloves are worn by the individual or any other personnel and no latex accessories . . . are brought into direct contact with the latex sensitive patient can the claimant return to her present workplace.
(Id.) Dr. Golda Hudes, Morgan's treating allergist, described a variety of symptoms that a Type I allergy might produce, ranging from minor symptoms like itching, swelling, sneezing, runny nose and itching eyes, to severe symptoms such as asthma and anaphylaxis. (Def.'s Reply Ex. F.) A Type IV reaction, on the other hand, is simply dermatitis, or a localized rash. (Def.'s Reply Ex. G.)
Morgan filed a complaint against Abco and two other defendants on October 30, 2001. This case was transferred to the United States District Court for the Eastern District of Pennsylvania on May 2, 2003, where it was consolidated with other cases and docketed as part of In Re Latex Gloves Products Liability Litigation, MDL Docket No. 1148. The case was remanded to this Court on August 3, 2004 for disposition on the merits. The parties have completed discovery, and Abco now brings this motion for summary judgment.
Morgan has settled with defendant Steriltx (U.S.A.), Inc. A stipulation of discontinuance dismissing all claims against Steriltx was ordered on December 5, 2006. Additionally, according to Plaintiff's counsel, defendant Sintex, Inc. is no longer a defendant in the case.
Discussion
I. Summary Judgment Standard
District courts are directed to issue summary judgment where the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Opals on Ice Lingerie v. Bodylines Inc., 320 F.3d 362, 367-68 (2d Cir. 2003) (quotingInt'l Bus. Machs. Corp. v. Liberty Mut. Fire Ins. Co., 303 F.3d 419, 423 (2d Cir. 2002) (stating that a court may grant summary judgment "`only if it can be established that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'")). Of course, "`the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.'" Opals on Ice Lingerie, 320 F.3d at 368 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 247-48 (1986)). "A dispute is not `genuine' unless `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'"N.Y. Stock Exch., Inc. v. New York, N.Y. Hotel, LLC, 293 F.3d 550, 554 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248). The relevant substantive law will identify the facts that are material for the purposes of summary judgment. Anderson, 477 U.S. at 248.
Abco's arguments related to statutes of limitations and breach of express warranty will be analyzed under New York law because this case arises under diversity jurisdiction, 28 U.S.C. § 1332(a)(1). See, e.g., Alfaro v. Wal-Mart Stores, Inc., 210 F.3d 111, 115 (2d Cir. 2000).
When considering a motion for summary judgment, a district court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute."Heyman v. Commerce Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975) (Kaufman, C.J.) (citing Adickes v. Kress Co., 398 U.S. 144, 157 (1970); United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); accord LaFond v. Gen. Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995) ("`The inferences to be drawn from the underlying facts revealed in materials such as affidavits, exhibits, interrogatory answers, and depositions must be viewed in the light most favorable to the party opposing the motion.'" (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994))); Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir. 1984). If there exists "any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper."Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir. 1996). The Court evaluates Abco's claims in light of this standard to determine whether it has demonstrated that it is entitled to a judgment as a matter of law.
II. Statutes of Limitations
a. Negligence, Strict Liability, and Failure to Warn
The parties do not dispute that, under New York law, a three-year limitations period applies to Morgan's causes of action sounding in negligence, strict liability, and failure to warn. See N.Y. Civ. Prac. L. R. § 214(5) (McKinney 2003). Instead, the parties' dispute turns on the accrual date of these causes of action, namely the date that Morgan discovered her injury. Section 214-c of the C.P.L.R. governs this inquiry:
[T]he three year period within which an action to recover damages for personal injury . . . caused by the latent effects of exposure to any substance or combination of substances, in any form, upon or within the body . . . must be commenced shall be computed from the date of discovery of the injury by the plaintiff or from the date when through the exercise of reasonable diligence such injury should have been discovered by the plaintiff, whichever is earlier.Id. § 214-c(2). The instant action was commenced on October 30, 2001. Accordingly, this Court must determine if there is a genuine issue of material fact as to whether Morgan discovered her injury before October 31, 1998.
The New York Court of Appeals has interpreted the Legislature's "discovery rule" to mean "discovery of the manifestations or symptoms of the latent disease that the harmful substance produced." In re New York County DES Litig., 89 N.Y.2d 506, 514, 678 N.E.2d 474, 478 (1997). Such a rule protects injured plaintiffs who were unaware of their latent injuries until expiration of the limitations period, see id., and also aids those whose early symptoms were "too isolated or inconsequential to trigger the running of the Statute of Limitations under CPLR 214-c(2)." Id. at 514 n. 4, 678 N.E.2d at 478 n. 4. At the same time, the rule forecloses claims by plaintiffs who were aware of the symptomatic manifestations of their illnesses but contend that their causes of action did not accrue until the official diagnoses of the illnesses. See Krogmann v. Glen Falls City School Dist., 231 A.D.2d 76, 78, 661 N.Y.S.2d 82, 83 (3d Dep't 1997) (finding that where plaintiff's symptoms were apparent, the accrual date occurred before diagnosis because "[t]o hold otherwise — essentially tolling the limitations period until plaintiff's physician eventually diagnosed her condition — would allow the date on which a claim accrues to `depend on such fortuitous circumstances as . . . the diagnostic acuity of [the injured party's] chosen physician' . . .") (quoting In re New York County DES Litig., 89 N.Y.2d at 515, 678 N.E.2d at 479).
Abco contends that Morgan discovered her injury on September 29, 1995 — the day she was diagnosed with an allergy to powdered gloves. Morgan responds that "even though [she] had localized skin reactions as early as 1995, it is clear she did not actually discover systemic Type I latex allergy condition until after respiratory symptoms began to interfere with her work and she was diagnosed in April 1999. . . ." (Pl.'s Memo. of Law at 11.) The Court initially notes that Morgan mischaracterizes the record in two ways. First, she incorrectly restricts the description of her 1995 symptoms to: "localized skin reactions." The record makes clear that in addition to a rash and itching hands in 1995, Morgan complained of a running nose, sneezing, and breathing difficulty. (Def.'s Ex. C.) Second, Morgan claims that Dr. Kaufman "flatly aver[red]" and "attested" to the fact that she suffered from two separate injuries — Type I latex allergy and Type IV latex allergy — at distinct times. (Pl.'s Memo. of Law at 1, 13-14.) While Dr. Kaufman chronicles the development of Morgan's allergies and concludes that she has both Type I and Type IV allergies, his affidavit and independent medical examination report do not purport that Morgan suffered from these allergies at separate times.
For this reason, Morgan's invocation of the two-injury rule, which allows for separate limitations periods for "separate and distinct" injuries, see, e.g., Griffin v. Garratt-Callahan Co., 74 F.3d 36, 40 (2d Cir. 1995), is inconsequential. Morgan contends that the 1995 diagnosis was based upon Type IV latex allergy symptoms; not the Type I systemic symptoms that form the basis for this cause of action. There is no evidence in the record, however, that indicates that Morgan's 1995 allergy diagnosis was based solely upon Type IV symptoms. To the contrary, as described above, the undisputed record shows that the diagnosis was based upon symptoms encompassing both Type IV and Type I allergies. Thus, the relevant question is not whether these two allergies are separate and distinct, but whether Morgan knew or should have known of her Type I condition in 1995.
This Court must therefore determine whether Morgan's symptoms of Type I latex allergy in 1995 were too isolated or inconsequential to trigger the running of the statute of limitations. See In re New York County DES Litig., 89 N.Y.2d at 514 n. 4, 678 N.E.2d at 478 n. 4. Abco asserts that the limitations period began to run in 1995 because Morgan was suffering from palpable Type I symptoms at the time she was told that she had a latex allergy. Morgan contends that her symptoms in 1995 were too isolated, underscored by the fact that she continued to work in a latex environment after 1995 and did not seek medical treatment for serious respiratory issues until late 1998. Her symptoms gradually worsened, and by 1999, she was at risk for fatal anaphylaxis. Thus, according to Morgan, "her Type I allergy manifested and worsened only shortly before the diagnosis, when her ability to work was disrupted and she was referred for treatment to an allergist." (Pl.'s Memo. of Law at 18.)
By connecting two undisputed facts, Abco has met its burden of proving that the statute of limitations was triggered on September 29, 1995. First, on this date, Morgan went to the Employee Health Service at Montefiore complaining of, among other symptoms, a running nose, sneezing, and breathing difficulties. Second, in response to these complaints, Morgan was told that she had an allergy to latex powdered gloves. Moreover, on September 29, 1995, Morgan was able to connect her respiratory symptoms to a latex allergy. In Whitney v. Agway, plaintiff purchased pesticide in June 1988 and suffered psychological and physical symptoms associated with organophosphate poisoning within hours of using it. 238 A.D.2d 782, 782-83, 656 N.Y.S.2d 455, 456 (3d Dep't 1997). Plaintiff did not, however, receive an unqualified diagnosis that her symptoms were attributable to organophosphate poisoning until January 1992. Id. at 783, 656 N.Y.S.2d at 456. In determining that plaintiff should have filed her claim by 1991, the court stated:
Although plaintiff maintains that her earlier diagnoses of injury were preliminary, the record indicates that she was immediately aware of the existence of symptoms that were practically identical to those classically caused by pesticide poisoning. . . . Additionally, plaintiff was aware that her physicians were, at the very least exploring poisoning theory as a probable source of her symptoms and plaintiff herself stated . . . that she was being evaluated for organophosphate poisoning.Id. at 784-85, 656 N.Y.S.2d at 457. Here, the accrual date is even clearer. Morgan was aware of the existence of several respiratory symptoms commonly associated with Type I latex allergy and she knew that such symptoms were caused by latex allergy. See Prohaska v. Safamor, S.N.C., 138 F. Supp. 2d 422, 431 (W.D.N.Y. 2002) (finding that plaintiff discovered her injury when she knew what caused her pain); Neri v. R.J. Reynolds Tobacco Co., 185 F. Supp. 2d 176, 182 (N.D.N.Y. 2001) (granting summary judgment where "plaintiff knew not only the primary condition upon which his claims are based but the cause of that condition itself more than three years prior to the commencement of this action"). Because she was able to make the connection between her symptoms and latex allergy, the cases Morgan relies upon are distinguishable. Plaintiffs in these cases were unaware of what caused their symptoms; thus, the respective courts required more severe and intrusive symptoms in order to trigger the statute of limitations. See, e.g., Shafranek v. Long Island Processor, Inc., 195 Misc.2d 902, 906, 762 N.Y.S.2d 799, 801 (Sup.Ct. Nassau Cty. 2003) (finding that some chest pain was not enough for the statute of limitations to accrue where plaintiff was unaware that the pain was related to respiratory issues caused by exposure to chemicals).
Morgan argues that she was unaware that the symptoms were specifically attributable to Type I latex allergy. This argument is unavailing. The purpose of § 214-c(2) would be subverted if one could wait to file suit until receiving an official diagnosis. See Galletta v. Stryker Corp., 283 F. Supp. 2d 914, 917 (S.D.N.Y. 2003) ("The three year limitations period runs from the date when plaintiff first noticed symptoms, rather than when a physician first diagnosed those symptoms. . . ."); Scheidel v. A.C. S., Inc., 258 A.D.2d 751, 753, 685 N.Y.S.2d 829, 831 (3d Dep't 1999) ("[T]he fact that his illness was not diagnosed until November 1994 and he may not have been fully-aware that the cause of his injury was an exposure to asbestos is not dispositive."); Krogmann, 231 A.D.2d at 78, 661 N.Y.S.2d at 83. Morgan waited nearly four years to consult an allergist. That her symptoms became more severe and she had to leave work in 1999 does not change the fact that the statute of limitations began to run, as a matter of law, in 1995. See Neri, 185 F. Supp. 2d at 182 ("[In re New York County DES Litig.] does not stand for the proposition that a plaintiff has not discovered the primary condition upon which his claims are based until he becomes totally incapacitated by his symptoms. To the contrary, all that [In re New York County DES Litig.] requires is that the plaintiff's symptoms not be inconsequential or isolated.") (citing In re New York County DES Litig., 89 N.Y.2d at 514 n. 4, 678 N.E.2d at 478 n. 4); Ferreri v. McGahn Med. Corp., No. 95 Civ. 6189, 1997 U.S. Dist. LEXIS 14196, at *9 (S.D.N.Y. Sept. 17, 1997) ("Under New York law, . . . progressive deterioration of a patient's condition [does not] toll the statute of limitations."); Whitney v. Quaker Chem. Corp., 90 N.Y.2d 845, 847, 683 N.E.2d 768, 769 (1997) (finding that plaintiff's worsened symptoms did not make his claims timely). Accordingly, Morgan's negligence, strict liability, and failure to warn causes of action are time-barred.
Had Morgan inquired with a doctor after Nurse Carbuto informed her that she had an allergy to latex gloves, Morgan most likely would have discovered then that she suffered from Type I latex allergy. Alternatively, Morgan would be able to show that, even with due diligence, discovery of her Type I allergy could not have occurred in 1995. Such a scenario seems implausible because the undisputed record indicates that, in 1995, Morgan suffered from symptoms consistent with Type I latex allergy. Nevertheless, assuming arguendo that the 1995 symptoms were isolated and inconsequential, the statute of limitations would have started to run prior to October 31, 1998 due to other symptomatic manifestations of Type I allergy. In approximately June of 1998, Morgan suffered from chest tightness and shortness of breath. These symptoms developed when Morgan entered the surgical ward and improved when she exited this area. Further, in October 1998 (the parties have not supplied the Court with a specific date in October), Morgan was diagnosed with asthma.
b. Breach of Express and Implied Warranties
Morgan's breach of implied and express warranties cause of action has a four-year limitations period. See N.Y. U.C.C. § 2-725(1) (McKinney 2003). Unlike C.P.L.R. § 214-c, the accrual. date under U.C.C. § 2-725 depends upon "when the breach occurs, regardless of the aggrieved party's lack of knowledge of the breach." Id. § 2-725(2). Thus, contrary to Abco's assertion, the fact that Morgan first discovered her injury in 1995 is of no consequence. Instead, the inquiry focuses on "when tender of delivery is made." Id.; see Heller v. U.S. Suzuki Motor Corp., 64 N.Y.2d 407, 411, 477 N.E.2d 434, 436 (1985) ("[A] cause of action against a manufacturer or distributor accrues on the date the party charged tenders delivery of the product. . . .").
Abco has the burden to establish a prima facie case that the limitations period expired before Morgan filed her claim, at which point the burden shifts to Morgan to produce contrary evidence. See Wald v. Costco Wholesale Corp., No. 03 Civ. 6308, 2005 U.S. Dist. LEXIS 2723, at *20 (S.D.N.Y. Feb. 22, 2005) (analyzing a breach of warranty claim under N.Y. U.C.C. § 2-725). Here, Morgan continued to work at Montefiore in a latex environment until 1999, and Abco has offered no evidence that it did not tender latex gloves to Montefiore throughout this period. While Abco is not entitled to a full dismissal of Morgan's breach of implied and express warranties claim, recovery by Morgan may not be based on deliveries tendered by Abco prior to October 31, 1997, four years prior to her filing of this action as required by N.Y. U.C.C. § 2-725. See Epstein v. Eastman Kodak Co., Inc., 225 A.D.2d 516, 517, 638 N.Y.S.2d 490, 491 (2d Dep't 1996).
Abco argues, without support, that "before it can be established when the statute of limitations period began to run, Plaintiff must first meet her burden of proof by offering evidence that she in fact used Abco's powdered latex examination gloves during her employment and that it was Abco's products that caused her injuries." (Def.'s Reply Memo. of Law § 2.B.) At the summary judgment stage, however, a district court "must resolve all ambiguities and draw all reasonable inferences in favor of the party against whom summary judgment is sought, with the burden on the moving party to demonstrate the absence of any material factual issue genuinely in dispute." Heyman, 524 F.2d at 1320 (emphasis added).
III. Preemption
Abco next argues that Morgan's state law causes of action are preempted by the Food and Drug Administration's ("FDA") Latex Labeling Rule (the "Rule"). Because the Rule's effective date was September 30, 1998, it cannot preempt Morgan's breach of warranties claim from October 31, 1997 — the earliest date Morgan may recover for breach of warranties — through September 29, 1998. See Natural Rubber-Containing Medical Devices; User Labeling, 62 Fed. Reg. 51021, 51026 (Sept. 30, 1997) ("This rule is not intended to require manufacturers to recall any devices already in interstate commerce. Therefore, this rule does not apply to devices initially introduced or initially delivered for introduction into interstate commerce before the effective date of this regulation."). And after September 29, 1998, Morgan's remaining cause of action may only be preempted to the extent it encompasses a failure to warn or inadequate labeling claim. See Lopez v. Hernandez, 253 A.D.2d 414, 415, 676 N.Y.S.2d 613, 614-15 (2d Dep't 1998) ("Generally, causes of action based on negligence, breach of express warranty and implied warranty, and strict products liability which are not premised on a failure to warn or inadequate labeling survive preemption.").
Nor is Morgan's cause of action for this time period preempted by the Glove Manual, a 1992 publication by the FDA. See Adesina v. Aladan Corp., 438 F. Supp. 2d 329, 337 (S.D.N.Y. 2006) (Keenan, J.) ("[T]he Glove Manual is not a federal regulation to the extent that it has not undergone, as is characteristic of federal agency regulations, a period of `notice and comment.' The Glove Manual is not published in the Code of Federal Regulations, and moreover, refers to itself as an `educational information . . . manual . . . and not an official statement binding on the FDA.'").
The relevant statute at issue here is the Medical Device Amendments of 1976 ("MDA"). The MDA provides:
Except as provided in subsection (b) of this section, no State or political subdivision of a State may establish or continue in effect with respect to a device intended for human use any requirement —
(1) which is different from, or in addition to, any requirement applicable under this chapter to the device, and
(2) which relates to the safety or effectiveness of the device or to any other matter included in a requirement applicable to the device under this chapter.21 U.S.C. § 360k(a) (1999). The FDA interprets this provision as applying:
[O]nly when the Food and Drug Administration has established specific counterpart regulations or there are other specific requirements applicable to a particular device under the act, thereby making any existing divergent State or local requirements applicable to the device different from, or in addition to, the specific [FDA] requirements.21 C.F.R. § 808.1(d) (2007).
Courts often assess the pre-market approval process of a device in order to determine whether the FDA has imposed a "requirement." See, e.g., Richman v. W.L. Gore Assocs., 988 F. Supp. 753, 758 (S.D.N.Y. 1997) (Leisure, J.) (determining that the pre-market approval process for an artificial ligament "constitutes the type of specific federal regulation of a product that can have a preemptive effect under the MDA"). Here, such an assessment is unnecessary because the FDA has mandated a specific warning label for a group of devices that includes latex gloves.See Natural Rubber-Containing Medical Devices; User Labeling, 62 Fed. Reg. at 51022. That warning must read: "Caution: This Product Contains Natural Rubber Latex Which May Cause Allergic Reactions." 21 C.F.R. § 801.437(d). Accordingly, to the extent that New York law would impose a different labeling requirement, Morgan's breach-of-warranties cause of action is preempted as to gloves sold by Abco beginning on September 30, 1998. See Busch v. Ansell Perry, Inc., No. 01 Civ. 126, 2005 U.S. Dist. LEXIS 44075, at *8 (W.D. Ky. Mar. 8, 2005) ("[T]he FDA has established a specific federal requirement under the MDA for devices containing natural rubber latex, including Defendant's latex gloves. . . . Since Plaintiff's state law failure to warn claim would impose a different labeling requirement on these gloves, it is preempted.").
Abco argues that it did not violate FDA regulations because it is not a manufacturer, who bears the responsibility to label the product. See Natural Rubber-Containing Medical Devices; User Labeling, 62 Fed. Reg. at 51028. It is unnecessary to consider this argument because Morgan does not allege that Abco violated FDA regulations. Rather, Morgan brings a state law claim for breach of implied and express warranties, which, as discussed above, is preempted to the extent it imposes a different labeling requirement than the FDA.
IV. Breach of Express Warranty
"Any affirmation of fact or promise made by the seller to the buyer which relates to the goods and becomes part of the basis of the bargain creates an express warranty that the goods shall conform to the affirmation or promise." N.Y. U.C.C. § 2-313(1)(a) (McKinney 2003). Abco makes two arguments in support of its position that Morgan's breach of express warranties claim must be dismissed, both of which fail. First, Abco believes that because Morgan did not read Abco's product manuals and never spoke with anyone from Abco, she cannot prove that the latex gloves failed to perform in accordance with promises made to her. Abco is mistaken in its belief that Morgan personally-had to receive an affirmation or promise. "Express warranties . . . are now held to run from the seller to the purchaser's employees for whose use the article of personal property has been purchased."Deeves v. Fabric Fire House Co., 19 A.D.2d 735, 735, 242 N.Y.S.2d 955, 956 (2d Dep't 1963). In its reply brief, Abco adds that "Plaintiff has failed to establish that these specific catalogs, or any Abco catalog, were used by Plaintiff's employers in the purchasing of Abco's latex examination gloves." (Def.'s Reply Memo. of Law at II.C.). As noted above, see supra n. 8, the burden is on Abco, the moving party, to establish that there is no genuine issue of material fact. Here, because there appears to be an issue of fact as to whether Abco made express warranties to Morgan's employer, summary judgment is inappropriate.
In its reply brief, Abco raises for the first time that Morgan's "breach of implied warranty cause of action must also fail as Plainitff [sic] has not established that Abco's gloves were defective in design or manufacture." (Def.'s Reply Memo § 2(c)). Because Morgan has not had an adequate opportunity to respond to this argument, the Court will not consider it at this stage. See Goldschmidt v. N.Y. State Affordable Hous. Corp., 380 F. Supp. 2d 303, 320-21 (S.D.N.Y. 2005) (citing United States v. Gigante, 39 F.3d 42, 50 n. 2 (2d Cir. 1994)).
Second, Abco contends that fatal to Morgan's claim is her failure to produce an expert report showing that the gloves did not perform according to the seller's promise. Abco again fails to acknowledge that, at summary judgment, the moving party carries the burden of proof. See Heyman, 524 F.2d at 1320. Here, Abco offers no substantive basis to support its motion as to Morgan's breach of express warranties claim. Cf. Adesina, 438 F. Supp. 2d at 347 (Keenan, J.) (determining that defendant did not meet its burden for summary judgment of a breach of express warranty claim where it "offer[ed] no substantive argument to support its motion for summary judgment on this ground"). Accordingly, Morgan's breach of express warranties claim remains viable.
Conclusion
For the foregoing reasons, Abco's motion for summary judgment is GRANTED IN PART and DENIED IN PART. Morgan's first, second, and third causes of action are dismissed for failure to comply with the statute of limitations. Morgan's fourth cause of action: (1) is timely as to deliveries tendered by Abco beginning on October 31, 1997; (2) is preempted as of September 30, 1998 to the extent it encompasses a failure to warn or inadequate labeling claim; and (3) survives summary judgment with respect to Abco's claim that it did not make any express warranties to Morgan. The parties are ORDERED to appear before this Court at 500 Pearl Street, Courtroom 18B for a status conference on January 3, 2008 at 10:30 a.m.SO ORDERED.
New York, New York