The opinion of the court was delivered by: LEVET
The above action relates to claims by plaintiffs in the nature of product liability based upon the contention that a certain product known as "Little Lady Toilet Water," when applied by a three-year-old infant, Robin Sue Oxman, above named, injured the said infant's left eye.
Three causes of action are brought by the guardian ad litem, Herbert Oxman, upon behalf of the infant, and another derivative cause of action is alleged by plaintiff Herbert Oxman as the father of the said infant in paragraphs 30 through 33 of the complaint.
In the first cause of action on behalf of the infant-plaintiff damages are asserted in the sum of $25,000; similarly in the second and third causes of action. In paragraph 22 of the complaint the infant-plaintiff demands punitive damages in the sum of $25,000.
On December 27, 1967 the court, sua sponte, conducted an inquiry with respect to the sufficiency of the complaint, in the course of which counsel for the infant-plaintiff stated that the child sustained a heratoconjunctivitis. The child, then three years of age, according to counsel had to have some injections of ACTH plus some ointment every few hours and then at the end of two weeks the injury got better and six weeks later it was entirely cleared up (SM 7). No permanencies of any kind are claimed.
The date of the injury was September 14, 1961 (SM 8). The complaint was not filed until August 2, 1963, at which time the child had long since recovered. Counsel conceded that a demand was subsequently made for $2,000, which was later reduced to $1,000 (SM 9). It was never higher than $2,000 (SM 10).
The court was in error at the hearing in stating that punitive damages were not prayed for in the complaint as such a demand was contained in paragraph 22. However, when asked at the hearing, counsel could neither state any basis for awarding punitive damages nor give any statement at all as to how punitive damages could be obtained. An award of punitive damages is plainly unwarranted. See Roginsky v. Richardson-Merrell, Inc., 378 F.2d 832 (2nd Cir. 1967).
It appears from the above that by no manner of means could the claim of the infant-plaintiff ever have been sufficient to demonstrate jurisdiction under Title 28 U.S.C.A. § 1332(a).
The claim of the plaintiff-father, Herbert Oxman, for medical care and attention, etc. alleges that he has been damaged in the sum of $5,000 (see paragraph 33 of the complaint).
Paragraph 7 of the pretrial order, which was approved by plaintiffs' counsel, is as follows:
"7. The following are all of the claims for damages or for other relief asserted by the plaintiff in this action, as ...