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WAHBA v. H & N PRESCRIPTION CTR.

May 12, 1982

Joseph WAHBA, as Administrator of the Goods, Chattels and Credits of Mark Wahba, an infant under the age of fourteen years, Joseph Wahba, individually, and Afrith Wahba, Plaintiffs,
v.
H & N PRESCRIPTION CENTER, INC., doing business as Zuckerman's Pharmacy, Defendant



The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

Plaintiffs seeks compensatory and punitive damages for the death of their son contending that had defendant dispensed a drug in a "child-proof" container the child would not have died. Defendant moves to strike the claim for punitive damages. For the reasons stated below, the motion must be granted.

 I. Facts

 In June 1980, the defendant H & N Prescription Center, Inc., doing business as Zuckerman's Pharmacy in Brooklyn, filled plaintiffs' prescription for Lomotil, a drug used to counteract stomach disorders. According to the complaint, thirty tablets were dispensed in a small plastic container unequipped with the "child-proof" cap as required by law. 16 C.F.R. §§ 1700.14, 1700.15 (1981).

 Plaintiffs' two year old son came upon the container and ingested approximately twenty of the pills before being interrupted by his mother. He was rushed to the hospital, lapsed into coma and died.

 The complaint pleads ten causes of action, four under federal law, pursuant to section 23 of the Consumer Product Safety Act (Act), 15 U.S.C. § 2072 (1976 & Supp. III 1980), and six pendent under state common law. Punitive damages were not included in the relief demanded in connection with the state causes of action because of the rule that such damages are not recoverable under New York law in either wrongful death, N. Y. Est. Powers & Trusts Law §§ 5-4.1, 5-4.3; Robert v. Ford Motor Co., 73 A.D.2d 1025, 424 N.Y.S.2d 747 (3d Dep't 1980), or survival actions, N. Y. Est. Powers & Trusts Law § 11-3.2; Rosenfeld v. Isaacs, 79 A.D.2d 630, 433 N.Y.S.2d 623 (2d Dep't 1980).

 Defendant maintains that the state rule applies to the federal claims under the Consumer Product Safety Act. This issue appears to be one of first impression. The conclusion that the measure of recovery under the Act is a function of state rather than federal law is compelled both by the language and the legislative history of the Act.

 II. Law

 A. History of Act

 The Consumer Product Safety Act was the fruit of years of work by the legislature and others who recognized that modern technology and merchandising methods posed increasing threats to the nation's consumers. Prior to 1972, Congress had enacted a number of laws designed to combat dangers posed by specific categories of consumer products. See, e.g., Flammable Fabrics Act of 1953, 15 U.S.C. §§ 1191-1204; Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-1274; Child Protection Act of 1966 and Child Protection and Toy Safety Act of 1969, 15 U.S.C. §§ 1261-1265, 1273, 1274; Refrigerator Safety Act, 15 U.S.C. §§ 1211-1214; Poison Prevention Packaging Act of 1970, 15 U.S.C. §§ 1261, 1471-1476; Federal Caustic Poison Act, 15 U.S.C. §§ 401-411 (repealed); Radiation Control for Health and Safety Act of 1968, 42 U.S.C. §§ 263b-263n; National Traffic & Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1391-1409, 1421-1426, 1431. This categorical approach "resulted in a patchwork pattern of laws which, in combination, extend(ed) to only a small portion of the multitude of products produced for consumers." Consumer Product Safety Act of 1972, House Commerce Committee, H.R.Rep.No.1153, 92d Cong., 2d Sess. 22 (1972), reprinted in The Consumer Product Safety Act, Text, Analysis, Legislative History (BNA), Appendix 211, 212-13 (1973). Accord, Consumer Safety Act of 1972, Senate Commerce Committee, S.Rep.No.749, 92d Cong., 2d Sess. 1-3 (1972), reprinted in The Consumer Product Safety Act, Text, Analysis, Legislative History (BNA), Appendix 61, 61-63 (1973).

 In 1967 Congress established the National Commission on Product Safety to examine methods of protecting consumers against unreasonable risks of injury from household products and to propose remedies for existing legal inadequacies. Act of Nov. 20, 1967, Pub.L.No.90-146, 81 Stat. 466. After more than two years of study, the Commission submitted its final report to Congress in June, 1970. In 1972 the Act established the Consumer Products Safety Commission, an independent federal regulatory agency vested with broad authority to protect against hazardous consumer products. Pub.L.No.92-573, 86 Stat. 1207 (1972), 15 U.S.C. §§ 2052-2082. See generally P. Sherman, Products Liability for the General Practitioner, §§ 4.04-4.06 (1981).

 One of the Act's primary purposes, and one of the Commission's principal means of fulfilling its mission, has been the promulgation of uniform national safety standards for consumer products. 15 U.S.C. § 2051(b)(3). The statute contains a comprehensive enforcement scheme including such measures as civil and criminal penalties, injunctive remedies and seizure. Id. §§ 2069-2071, 2073 (1976 & Supp. II 1978).

 B. Express Provision for Damages in Act

 In addition the Act expressly affords a private right of action to any person who sustains injury by reason of any knowing violation of a consumer product safety ...


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