not be credited. Moreover, even if the Court was to completely discount Dr. McLaughlin's testimony, his professional decision not to inform Mr. Krasnopolsky of the possibility of renal failure is itself an intervening cause relieving Warner of any possible liability, as a matter of law.
The Krasnopolskys also allege that Warner was negligent in the manufacture, sole, distribution, research, warnings and investigation of Meclomen. "In a negligence action the plaintiff must establish that a manufacturer failed to exercise reasonable core in making his product." ( Fane v. Zimmer, 927 F.2d 124, 130-31 [2d Cir. 1991].) Here, the Krasnopolskys have failed to set forth any facts which would support a finding of negligence on the part of Warner. Aside from submitting the PDR pages mentioned above, which are of little value as the 1982 and 1985 pages do mention renal failure as a possible side effect, the Krasnopolskys have not provided the Court with any evidence which would support a finding of negligence in any respect so as to defeat a motion for summary judgment. Notably, the Krasnopolskys have failed to submit any type off expert proof, in an affidavit or otherwise, which would establish any causation between Mr. Krasnopolsky's injury and the alleged negligence of Warner.
Moreover, pursuant to Rule 407 off the Federal Rules of Evidence, the PDR pages are not admissible, as they are being used to prove that subsequent remedial measures were taken by Warner. Rule 407 provides, in relevant part: "When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence off the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event." The PDR pages here are being used to prove that Warner did further testing and/or investigation of Meclomen and determined that nephrotic syndrome was a possible side effect, after Mr. Krasnopolsky's treatment. In this Court's view, this type of proof is excluded under Rule 407.
Similarly, the Krasnopolskys have failed to submit any evidence in support of their breach of warranty claim.
In sum, the plaintiffs have failed to raise any genuine material issues of fact on any of their theories of recovery which would prevent a summary disposition of this action on the law.
For the foregoing reasons, Warner's motion for summary judgment is granted, and the complaint is dismissed in its entirety. The clerk of the court is hereby directed to close this case.
Dated: Uniondale, New York
July 13, 1992
ARTHUR D. SPATT
United States District Judge
© 1992-2004 VersusLaw Inc.