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GUADAMUD v. DENTSPLY INT'L

August 6, 1998

Rosa Guadamud, Plaintiff, against Dentsply International, Inc. et alia, Defendants.


The opinion of the court was delivered by: SIFTON

MEMORANDUM AND ORDER

 SIFTON, Chief Judge

 Rosa Guadamud brings this products liability action against Dentsply International, Inc., ("Dentsply International"); Caulk, a Division of Dentsply International; Dentsply, Inc.; Dentsply Research and Development Corp. (collectively, "Dentsply"); Burron Medical, Inc.; and B. Braun Medical, Inc. (together, "Braun"). Plaintiff alleges that Dentsply sold, and Braun manufactured in part, a three-millimeter plastic syringe filled with a phosphoric acid gel for use in cleaning teeth, that the syringe was defective, and that as a result of the defect she was injured by the syringe's contents. Presently before the court are defendants' motions for summary judgment. For the reasons set forth below, the motions are granted.

 BACKGROUND

 The following facts are taken from the pleadings and the parties' papers in connection with the instant motion and are undisputed except where noted.

 Rosa Guadamud was born in Ecuador in 1961, although at all times relevant to the instant action she was and remains a resident of New York for diversity of citizenship purposes. After graduating high school in Guayaquil, Ecuador in 1979, she entered the dental school of the University of Guayaquil in 1980. She attended a five-year, full-time program in dentistry, studying anatomy, chemistry, physiology, and the other courses required for a degree in general dentistry, which she obtained. She then worked for the Ecuadorian government for a year and then received her certificate from the Colegio de Odontologos del Guyas, which she testified at her deposition is the equivalent of the American Dental Association. This certificate, she testified, constitutes a license to practice dentistry in Ecuador. After receiving her certificate, plaintiff opened a general dentistry practice in Guayaquil.

 In June of 1986, plaintiff came to the United States. She attended seminars run by Suffolk Community College on various aspects of radiology and dentistry and took a course at New York University to prepare for the nationally standardized Test of English as a Foreign Language ("TOEFL"). In 1987 plaintiff received her green card as a resident alien. At approximately that time she began to work for a company named Summit Dental as a dental assistant, working for Doctors Signh and Bhinda. In late 1988 plaintiff left Summit Dental after injuries she sustained in a car accident rendered her temporarily disabled. After recovering she began working as a dental assistant in the office of Doctor Bedell, where she remained for three years. In this capacity she assisted with tooth cleaning, extractions, and X-rays.

 In 1990, after leaving Dr. Bedell's office, plaintiff attempted to enroll at the New York University School of Dentistry but was not permitted to do so. In order to enroll in the course of dentistry she wished to take, she was required to pass the first part of the National Board Examination in Dentistry. In 1991, plaintiff failed this examination.

 In 1993 plaintiff set up her own dentistry practice at 179 Strong Street, Brentwood, New York. The parties do not dispute that plaintiff had not then, and has not to date, obtained a license to practice dentistry in New York State or anywhere else in the United States. Ultimately, in 1995 plaintiff was charged with practicing dentistry without a license and entered a plea of guilty in state court. She was sentenced to three years' probation.

 On April 8, 1994, while plaintiff was engaged in the practice of dentistry without a license, she used the Dentsply Tooth Conditioner Gel, *fn1" ("the product" or "the syringe"), a syringe containing phosphoric acid that is used to prepare teeth for drilling and cavity repair. The product is dispensed only to licensed dentists, for use by licensed dentists or under the supervision of a person so licensed. It is to be used with protective eyewear and clothing.

 Plaintiff testified that she was trained in the use of caustic cleansing agents and in the need for eye and skin protection when using such agents. It is undisputed that plaintiff used the product without protective equipment. Plaintiff alleges that the product exploded in her hands, causing her severe injury. She brought the instant action alleging various product liability, defect, and failure to warn theories.

 DISCUSSION

 This court has jurisdiction under 28 U.S.C. § 1332. Venue is proper in this district pursuant to 28 U.S.C. § 1391, as a substantial part of the conduct giving rise to the action occurred here.

 Federal Rule of Civil Procedure 56(c) provides that summary judgment must be granted if there is no genuine issue as to any material fact and if the moving party is entitled to judgment as a matter of law. The moving party has the burden of demonstrating the absence of any disputed material facts, and the court must resolve all ambiguities and draw all inferences in favor of the party ...


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