claim. Accordingly, defendant's unopposed motion for summary judgment on plaintiff's misrepresentation claim should be granted.
Plaintiffs claim that defendant was negligent in the testing, manufacturing, labeling, promoting, distributing, and selling of LT. (Amended Complaint at 2.) Plaintiffs further assert that defendant negligently failed to issue warnings or to recall plaintiffs' LT after defendant received notice of illnesses occurring in users of LT. Id.
Defendant argues that plaintiffs have failed to prove the requisite elements of the tort of negligence. SDK explains that establishing a causal link between defendant's allegedly negligent conduct and plaintiffs' injury is a necessary element of a negligence cause of action. (Defendant's Memo at 8.) According to SDK, plaintiffs have both failed to meet their burden of proving that defendant's conduct caused plaintiffs' injury, and plaintiffs wrongly have suggested to this Court that negligence causation can be established merely by linking defendant's product to plaintiffs' injury. (Defendant's Reply Memo at 24); (Defendant's Memo at 7-8.)
Plaintiffs counter that there are, in fact, triable issues, with regard to both SDK's negligence and causation in this case. (Plaintiffs' Memo at 33.) Plaintiffs maintain that SDK owed plaintiffs a duty to test and inspect its LT, to possess the skill and knowledge of an expert in the field, and to comply with industry and governmental standards required of manufacturers of substances such as LT, and that SDK breached each of these duties. Id. at 21-29.
On the issue of causation, plaintiffs submit reports and affidavits from various experts that support plaintiffs' claim that defendant's breach of duty caused plaintiffs' injuries. For instance, in an affidavit, plaintiffs' expert Dr. Kenneth Bolvin Taylor ("Taylor") states that "specific contaminants have been identified and characterized in the [LT] from Showa Denko that are not present in the same product from other manufacturers." (Pls.' Ex. 17, at 2.) Taylor continues that he believes that "the presence of these contaminants was caused by the fact that [SDK] failed to comply with adequate safety standards for the manufacture of this product," id., that SDK was aware that their LT contained levels of contaminants greater than those generally deemed safe and acceptable, id. at 3, and that "but for the negligence on the part of [SDK] to follow minimum standards required of manufacturers of genetically engineered L-tryptophan, the EMS epidemic, and the plaintiffs' attendant injury, would not have occurred." Id. A report regarding the subject matter, facts, and opinions that Dr. Stanley J. Cristol will testify about at trial also contains information regarding the presence of impurities in SDK's LT, the nature of these impurities, SDK's failure adequately to test its LT, and the causal relationship among these facts and EMS. (Pls.' Ex. 40.) The affidavit of Dr. Pamela Simms similarly supports plaintiffs' theory that SDK's negligent LT manufacturing and testing processes resulted in the presence of contaminants in SDK's LT that cause EMS. (Pls.' Ex. 10.)
Citing such exhibits, plaintiffs assert that "physicians and scientists are virtually unanimous in concluding that the EMS epidemic was caused only by SDK's LT." Id. at 31. Plaintiffs continue that "having proved that SDK's LT caused plaintiff's injuries and the EMS epidemic, it is not also necessary under New York law to prove the scientific defect or contaminant in SDK's LT that causes EMS," because such a defect can be inferred from expert testimony as well as from circumstantial evidence. Id. at 31-32. Accordingly, plaintiffs claim that they can satisfy each element of a negligence cause of action, including the element of causation. Consequently, plaintiffs claim that they are entitled to proceed to trial on the issue of negligence. Id. at 31, 33.
To establish a case of negligence under New York law, a plaintiff must prove several "'distinct elements: negligence (duty and a breach thereof), causation (cause in fact as well as proximate cause) and damages.'" Doolittle v. Ruffo, 882 F. Supp. 1247, 1259 (N.D.N.Y. 1994) (quoting Wolfe v. Samaritan Hosp., 104 A.D.2d 143, 146, 484 N.Y.S.2d 168 (N.Y. App. Div. 1984)). Case law does not require that plaintiff offer direct evidence in support of each of these elements. On the contrary, "it is enough that [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred." Schneider v. Kings Hosp. Ctr., Inc., 67 N.Y.2d 743, 744, 490 N.E.2d 1221, 500 N.Y.S.2d 95 (N.Y. 1986); Kadyszewski v. Ellis Hosp. Assn., 192 A.D.2d 765, 766, 595 N.Y.S.2d 841 (N.Y. App. Div. 1993); Brito v. Manhattan & Bronx Surface Transit Operating Auth., 188 A.D.2d 253, 254, 590 N.Y.S.2d 450 (N.Y. App. Div. 1992), app. diss., 81 N.Y.2d 993, 616 N.E.2d 153, 599 N.Y.S.2d 798 (N.Y. 1993); Hunter v. Ford Motor Co., 37 A.D.2d 335, 337, 325 N.Y.S.2d 469 (N.Y. App. Div. 1971). "Further, in determining whether plaintiffs have established a prima facie case, the evidence must be viewed in the light most favorable to the plaintiffs, and every favorable inference which can reasonably be drawn therefrom must be afforded them." Brito, 188 A.D.2d at 253, 590 N.Y.S.2d 450; Candelier v. City of New York, 129 A.D.2d 145, 146, 517 N.Y.S.2d 486 (N.Y. App. Div. 1987). "As long as the record yields a view of evidence upon which a jury could rationally find for the plaintiff, he is entitled to have the jury pass upon the case, and the complaint may not be dismissed." Candelier, 129 A.D.2d at 146, 517 N.Y.S.2d 486.
In the instant case, this Court finds that plaintiffs' exhibits provide sufficient evidence of each of the elements of the negligence tort to create a genuine issue of fact for the trier of fact at trial. The acts or omissions of which plaintiffs accuse defendants constitute a cognizable negligence claim under New York law. For instance, there is no doubt that manufacturers owe a basic duty to inspect and test their products to ensure that their products are reasonably safe for consumption. Smith v. Peerless Glass Co., 259 N.Y. 292, 296, 181 N.E. 576 (N.Y. 1932); MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (N.Y. 1916). It is similarly clear that "under general tort rules, a person may be negligent because he or she fails to warn another of known dangers or, in some case, of those dangers which he had reason to know." Schumacher v. Richards Shear Co., Inc., 59 N.Y.2d 239, 246, 451 N.E.2d 195, 464 N.Y.S.2d 437 (N.Y. 1983). Case law similarly supports plaintiffs' claim that failure to comply with regulatory standards can provide evidence of negligence. Barker v. Kallash, 63 N.Y.2d 19, 24, 468 N.E.2d 39, 479 N.Y.S.2d 201 (N.Y. 1984).
In addition, the evidence that plaintiffs have submitted to this Court regarding the issue of causation satisfies the legal standard for this element. As New York law requires, this Court accepts as true the expert testimony and information contained in the voluminous exhibits that plaintiffs submitted to this Court regarding the issue of causation. Accepting plaintiffs' exhibits as true, this Court finds that they provide sufficient circumstantial evidence of causation between defendant's allegedly negligent actions and plaintiffs' injury to establish a prime facie case of negligence. Because the record in this case "yields a view of evidence upon which a jury could rationally find for the plaintiff," plaintiffs are entitled to have a jury pass upon the case. Candelier, 129 A.D.2d at 146, 517 N.Y.S.2d 486. Accordingly, this Court finds that defendant's motion for summary judgment on this issue should be denied.
II. Plaintiffs' Motion for Collateral Estoppel
Plaintiffs move to collaterally estop defendant SDK from denying at trial that its LT caused EMS and that its LT was defective. (Memorandum of Law in Support of Plaintiffs' Motion To Collaterally Estop Defendant Showa Denko K.K. from Denying at Trial that its L-Tryptophan Caused Eosinophilia Myalgia Syndrome and was Defective, Kramer v. Showa Denko K.K., 91 Civ. 0582 ("Plaintiffs' Motion") at 1 (May 1, 1996).) They contend that both of these issues previously were resolved finally and fairly against SDK in two other jury trials, and that this Court should grant preclusive effect in the instant case to the findings made by the juries in each of the previous two cases. Id. at 1-3.
Plaintiffs both cite and submit to this Court documentation of the only other LT-litigations in this country that have gone to trial. Id. at 2-3 & Exs. 3-7. In DiRosa v. Showa Denko K.K., a 42 year-old school teacher claimed that she developed EMS after ingesting LT manufactured by SDK. Id. at 2. Plaintiff DiRosa alleged three separate theories of liability in her case: (1) that SDK's LT was defective as manufactured; (2) that SDK failed to warn of the dangers associated with using LT; and (3) that SDK was negligent. Id. A California state-court jury found in favor of plaintiff and awarded her $ 1.8 million in compensatory damages. The judgement was affirmed on appeal. DiRosa v. Showa Denko K.K., 44 Cal. App. 4th 799, 1996 WL 185142 (Cal. App. 1996).
Although the court in DiRosa explicitly charged the jury with all three theories of liability, the jury verdict form failed to ask the jury to specify upon which grounds its judgment was rendered. (Plaintiffs' Motion at 10.) According to plaintiffs in the instant case, however, "the verdict returned in DiRosa necessarily demonstrates that the jury found that SDK's [LT] caused Mrs. DiRosa to develop EMS. There can be no other logical interpretation of the award." Id.
The other case that plaintiffs cite, and the only other LT case to have been tried to a jury verdict, is Creamer v. Showa Denko K.K.. In Georgia federal court, plaintiff Creamer claimed that SDK's LT caused her EMS, and that the LT was defective when sold. Id. at 3. The jury in this case was instructed on, and found for plaintiff, "on one theory, which theory is the same as New York's implied warranty of merchantability." Id. at 13. It returned a verdict in favor of plaintiff in the amount of $ 3,307,358, and awarded her husband $ 400,000 for loss of consortium. Id. at Ex.5.
Plaintiffs maintain that in each of these two cases, defendant SDK appeared and had a full and fair opportunity to litigate two issues which are identical to issues involved in the instant case--whether SDK's LT caused EMS and whether SDK's LT was defective. Id. at 7-9. Plaintiffs further represent that the jury verdicts in each case necessarily and actually decided each of these issues. Id. at 9-13. Moreover, plaintiffs contend that applying offensive collateral estoppel in the instant case would be both fair and in the interests of judicial economy. (Plaintiffs' Reply Memorandum of Law in Further Support of Plaintiffs' Motion To Collaterally Estop Defendant Showa Denko K.K. from Denying at Trial That Its [LT] Caused [EMS] and Was Defective, Kramer v. Showa Denko, K.K., 91 Civ. 0582, at 2, 6-7 (June 5, 1996).)
Defendant contests plaintiffs' motion for collateral estoppel on two grounds. First, defendant claims that plaintiffs have not satisfied the prerequisites for invoking collateral estoppel. (Showa Denko K.K.'s Opposition to Plaintiffs' Motion To Collaterally Estop SDK from Denying (1) that its L-Tryptophan Caused Plaintiff Noel Kramer's Alleged EMS, and (2) that the L-Tryptophan Allegedly Ingested by Plaintiff Noel Kramer Was Defective, Kramer v. Showa Denko K.K., 91 Civ. 0582, at 1 (May 22, 1996).) Defendant represents that the DiRosa verdict is currently on appeal to the California State Supreme Court. Id. at 8-9. It then explains that "California law determines what preclusive effect the DiRosa jury verdict can have during the pendency of an appeal," and that under California law, a judgment is not final for purposes of collateral estoppel while it is still open to direct attack. Id. at 9. Accordingly, defendant claims that the DiRosa verdict cannot be used as a basis for the instant offensive collateral estoppel motion. Id. at 10.
Defendant also claims that each of the verdicts upon which plaintiffs rely does not meet the prerequisites for applying offensive collateral estoppel because each does not meet the doctrine's "identical issue" requirement. Id. at 13-18. Defendant explains that the jury in DiRosa decided only that DiRosa consumed some of SDK's LT, and that the specific lot of SDK LT that DiRosa consumed caused her injuries. Id. at 16. According to defendant, the DiRosa jury made no findings regarding: (1) the general propensity of SDK LT to cause any specific malady; (2) whether any SDK LT other than that consumed by DiRosa was defective; or (3) the specific LT ingested by Noel Kramer. Id. Consequently, SDK maintains that the issues that the DiRosa jury decided are not identical to those present in the instant case, and that DiRosa should not be given preclusive effect in the instant litigation. Id.
Defendant advances a similar argument regarding the Creamer verdict. According to defendant, during the period from 1982 to 1989, SDK manufactured five different strains of LT, using numerous, different manufacturing processes. Id. at 4-5. AS SDK explains, "strain three for example, was used from February 1986 through November 1988, whereas strain five was used from December 1988 through November 1989," and thus "a lot produced from strain three could not--by definition--have been produced under identical operating conditions as a lot produced from strain five." Id. at 5.
SDK claims that Noel Kramer and the Creamer plaintiff ingested LT from different lots. The LT consumed by the Creamer plaintiff came from lot five. Id. at 13 Accordingly, the Creamer jury "was asked to determine whether particular lots of strain five LT ingested by that plaintiff contained a legally-actionable 'defect'. . . ." Id. Noel Kramer, on the other hand, has produced no evidence that the LT he ingested came from this same lot. In fact, "the only evidence Mr. Kramer has adduced in this case shows that he ingested . . . LT manufactured from an SDK raw material lot produced before strain five production." Id. at 12 (emphasis in original). Because there is no evidence that Noel Kramer and the Creamer plaintiff ingested the same strains of SDK LT, there is no identity of issues, and, thus, plaintiffs' motion should be denied. Id. at 13.
Second, defendant asserts that "applying nonmutual, offensive collateral estoppel would be fundamentally unfair to SDK." Id. at 1-2. SDK argues that district courts have discretion to refuse to apply offensive collateral estoppel in cases where it would be unfair to the defendants. Id. at 18. SDK claims that "such unfairness would plainly result here, where the cause of plaintiff's alleged injuries remains unknown and where scientific research in the area continues to evolve." Id. Defendant further argues that applying offensive collateral estoppel in this case "would confuse the jury and prejudice the defendant." Id. at 19.
The doctrine of collateral estoppel prevents previously litigated issues from being relitigated. Beck v Levering, 947 F.2d 639, 642 (2d Cir. 1991) (per curium), cert. denied sub. nom Levy v. Martin, 504 U.S. 909, 118 L. Ed. 2d 544, 112 S. Ct. 1937 (1992); In Re Ivan Boesky Sec. Litig., 848 F. Supp. 1119, 1122 (S.D.N.Y. 1994). The Supreme Court has explained that the doctrine "has the dual purpose of protecting litigants from the burden of relitigating an identical issue with the same party or his privy and of promoting judicial economy by preventing needless litigation." Parklane Hosiery Co. v. Shore, 439 U.S. 322, 326, 58 L. Ed. 2d 552, 99 S. Ct. 645 (1979).
Previously, "the use of collateral estoppel was limited by the requirement of 'mutuality,' whereby neither party could use a prior judgment as an estoppel against the other unless both parties were bound by the prior judgment." Boesky, 848 F. Supp. at 1122-23; see Parklane Hosiery, 439 U.S. at 326. Although this mutuality requirement was abolished, courts distinguished between the defensive and offensive use of collateral estoppel. Defensive collateral estoppel prevents a plaintiff who has lost in a prior action from relitigating issues merely by naming a new adversary. Offensive collateral estoppel permits a plaintiff who was not a party to a prior action to estop a defendant from relitigating issues that the defendant previously litigated and lost in a prior action. Although offensive collateral estoppel had been criticized for "potentially being unfair to a defendant who could be forever bound by a judgment against him, even if he could not foresee future suits and thus had little incentive to litigate vigorously," Boesky, 848 F. Supp. at 1123, the Supreme Court endorsed its use in Parklane Hosiery Co. v. Shore. 439 U.S. at 331; see Boesky, 848 F. Supp. at 1123.
District courts may, in their discretion, grant offensive collateral estoppel where two requirements are met: (1) the issue for which preclusion is sought is identical to one that was actually and necessarily decided in the prior proceeding; and (2) the non-movant had a full and fair opportunity to litigate that issue in the prior proceeding. Parklane Hosiery, 439 U.S. at 331; Burgos v. Hopkins, 14 F.3d 787, 792 (2d Cir. 1994); Ward v. Harte, 794 F. Supp. 109, 112 (S.D.N.Y. 1992). Courts prohibit the use of collateral estoppel, however, if the issues in the two proceedings are not truly identical. Lindsay v. Ortho Pharm. Corp., 637 F.2d 87, 92 n.2 (2d Cir. 1980). In addition, courts bar the use of offensive collateral estoppel where there is any ambiguity regarding which issues actually were decided in the prior proceeding. Chew v. Gates, 27 F.3d 1432, 1438 (9th Cir. 1994), cert. denied, 130 L. Ed. 2d 1065, 115 S. Ct. 1097 (1995); see Khandhar v. Elfenbein, 943 F.2d 244, 248 (2d Cir. 1991).
Reviewing the parties' respective arguments in light of these standards, this Court exercises its discretion to deny plaintiffs' motion. First, defendant is correct in its assertion that the DiRosa verdict is not entitled to preclusive effect. The federal Full Faith and Credit Statute, 28 U.S.C. § 1738, requires federal courts to grant state court judgments "the same full faith and credit in every court . . . as they have by law or usage in the courts of such State . . . from which they are taken." See also, Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380, 84 L. Ed. 2d 274, 105 S. Ct. 1327 (1985). The DiRosa case was filed and tried in California state court, and, thus, California law determines what preclusive effect the DiRosa verdict has during the pendency of its appeal. See Khandhar, 943 F.2d at 247. "California law is settled that pending appeal a trial court judgment is not final" for issue-preclusion purposes. Sandoval v. Superior Court, 140 Cal. App. 3d 932, 936, 190 Cal. Rptr. 29 (Cal Ct. App. 1983). It is undisputed that the DiRosa case is currently pending appeal before the California Supreme Court. Accordingly, this Court finds that DiRosa is not a final judgment.
Second, this Court finds that neither the DiRosa nor the Creamer juries necessarily decided identical issues to those currently pending before this Court. Defendant's explanation of its LT manufacturing processes demonstrates that all SDK LT was not manufactured in a standard, uniform fashion. Absent such a uniform manufacturing process, it is impossible to find that all SDK LT is of the same quality or subject to the same alleged manufacturing defects. Moreover, the only evidence that the parties have produced regarding the LT that Noel Kramer ingested establishes that it did not come from the same lot as the LT consumed by the Creamer plaintiff. Given that the SDK LT taken by the plaintiffs in these two cases came from different lots, which were manufactured under different conditions, the facts and arguments considered by the Creamer jury are not identical to the facts and arguments present in the instant case. Case law is clear that collateral estoppel is inapplicable in cases where there is any ambiguity regarding which issues actually were decided in the prior proceeding. Chew, 27 F.3d at 1438; see Khandhar, 943 F.2d at 248. Accordingly, this Court finds that Creamer should not be given preclusive effect.
The DiRosa verdict is similarly inapposite. As plaintiffs explained, the form given to the jurors in DiRosa did not require the jurors to specify upon which grounds they rendered their judgment. Without such specification, it is impossible to be sure exactly which issues the jurors "necessarily decided." Moreover, as in Creamer, it is not clear that DiRosa and Noel Kramer ingested SDK LT manufactured at the same time, in the same lot, and under the same manufacturing conditions. Consequently, this Court finds that collateral estoppel effect should not be granted to the DiRosa verdict.
Finally, this Court finds that it would be unfair to apply offensive, non-mutual collateral estoppel based on either the DiRosa or the Creamer verdicts. The Supreme Court has cautioned that "where the application of offensive collateral estoppel would be unfair to a defendant, a trial judge should not allow the use of collateral estoppel." Parklane Hosiery, 439 U.S. at 331. This Court is cognizant that a single products liability case typically involves individualized circumstances peculiar to that case alone, such as the age and health of the plaintiff, the conditions under which the product was used, or the precise circumstances surrounding plaintiff's injury. Such factual idiosyncracies necessarily prevent a single finding from one such case to be applied to all other cases in cookie-cutter fashion. To find otherwise could distort a jury's decision on the remaining, open questions, prejudice a defendant's ability to litigate case-specific issues, and insulate a plaintiff from the burden of having to prove his case. This Court finds that applying offensive collateral estoppel in the instant case would subject the Kramer litigation to these very evils. Accordingly, this Court finds that it would be unfair to grant plaintiffs' preclusive motion in this case, and that this motion should be denied.
IT IS HEREBY ORDERED THAT defendant's motions for summary judgment on the issues of punitive damages and negligence are DENIED
IT IS FURTHER ORDERED THAT defendant's motion for summary judgment on the issue of "actionable misrepresentations" is GRANTED.
IT IS FURTHER ORDERED THAT defendant's motion for summary judgment on the issue of lost-income damages for Noel Kramer's future income from Eclipse stock is GRANTED.
IT IS FURTHER ORDERED THAT defendant's motion for summary judgment on the issue of lost-income damages for Noel Kramer's lost future earnings as an investment advisor is GRANTED.
IT IS FURTHER ORDERED THAT defendant's motion for summary judgment on the issue of lost-income damages for Noel Kramer's lost salary as an employee of Eclipse and for Noel Kramer's lost use of a car is DENIED.
IT IS FURTHER ORDERED THAT plaintiffs' motion for collateral estoppel is DENIED.
Dated: New York, New York
June 20, 1996
David N. Edelstein
© 1992-2004 VersusLaw Inc.