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July 27, 2000


The opinion of the court was delivered by: Hurd, District Judge.



Kritter Krates has joined in Covance's motion to dismiss plaintiffs' complaint in its entirety on grounds that plaintiffs cannot prove causation. Oral argument was held on March 10, 2000 in Utica, New York. Decision was reserved.


In April 1996, plaintiff was employed as a veterinary technician for Wyeth-Ayers Laboratories, a Division of American Home Products Corporation ("Wyeth"), in New York. Plaintiff's duties included handling animals used by Wyeth for pharmaceutical research. On or about April 11, 1996, Kritter Krates delivered approximately sixty monkeys by truck in crates from the Alice, Texas facility of Covance. The tails on many of the monkeys delivered in this shipment had been amputated before being transported, and as part of his job duties, plaintiff had to evaluate the tail amputations after their arrival in New York. Shortly after delivery, plaintiff prepared to examine one of the monkeys which had a recent tail amputation.

Plaintiff testified that on the date in question, to the best of his recollection he was dressed in protective clothing which included two pairs of plastic booties, a mechanic's thick coverall, a white suit (disposable), two pairs of gloves (duct-taped to the sleeves of his suit), a paper mask (OSHA approved), goggles, hair net and a plastic shield over his face. See Griffith Aff. Ex. B; Ex. C at 52-57, 194-204, 238-242. He then entered the primate room with two other individuals employed as animal handlers, in order to conduct the examination.

According to plaintiff's deposition testimony, one of the animal handlers reached into a cage to grab the monkey indicated by plaintiff. At that point the monkey jumped toward the animal handler, and in the process "whipped" its tail (the tail was only partially amputated) against plaintiff's plastic face shield, leaving a small mark of clear fluid on the shield (hereinafter, the "tail-whip incident"). Plaintiff could not recall whether there was also blood on his face shield. See id. at 189, 193-94, 204-05. Plaintiff stated that none of the three individuals, himself included, knew whether the monkey's tail had gone below or under plaintiff's face shield — plaintiff was frightened by the monkey's unexpected jump and had shut his eyes. See id. at 194, 204, 211-12.

The animal handler then returned the monkey to its cage, and the three individuals inspected one another's clothing for at least one minute. Plaintiff stated that other than the fluid apparent on his shield, he did not recall any blood being noted on his own suit nor that of anyone else. See id. at 208-09. Plaintiff further testified that he did not know of any contact by fluid of the monkey with his mucous membranes, nor did he feel any liquid, solid or spray hit his person when the monkey whipped its tail. Plaintiff thought, but was not certain, that he had no exposed skin from the neck up during the encounter with the monkey. See id. at 226-27.

A few weeks later, around or prior to early May 1996, plaintiff began manifesting flu-like symptoms, including headache, cold sweats, shaking uncontrollably and light sensitivity. See id. at 59-63. Pursuant to Wyeth company standard procedure, he reported his complaints to an occupational health nurse and was cultured for HBSV. Plaintiff thereafter learned that one of the swabs from a mouth sore had come back positive on a PCR (polymerase chain reaction) test and he should begin anti-viral treatment.*fn1 See id. at 263-64.

The medical histories of two of the monkeys demonstrate that they had tested positive for antibodies to HBSV in July 1995. Both of these monkeys tested negative on two later successive occasions before they were shipped to Wyeth. See McCarthy Aff. Ex. B. While plaintiff is not certain that either of those two monkeys was involved in the incident which is the subject of this lawsuit, defendants have agreed that this point may be assumed true for purposes of this motion. Defendants likewise assume as true that at the moment of the tail incident, the involved monkey was "shedding" HBSV, such that it was capable of transmitting the virus to another being. See Covance Mem. at 10 n. 2.

In an earlier incident occurring in November 1995, plaintiff's gloved hand was struck with a needle he was using for subcutaneous injections on a monkey. Plaintiff stated in his deposition that he did not believe the needle penetrated his two pairs of gloves, but nevertheless immediately notified his supervisor. He subsequently cleansed the area in accordance with standard procedure. Plaintiff was examined by at least two different doctors following the event. See Griffith Aff. Ex. C at 97-99. He experienced a cold or flu in December, the following month, and reported it. However, after some blood work was performed, he experienced no further difficulties. See id. at 101-02.

During his approximately two-year tenure at Wyeth, plaintiff's work with monkeys included performing oral gavages, blood draws, subcutaneous injections, administering medication, handling fecal matter from monkeys, and swabbing the eyelids, mouths, and genitalia of monkeys. Plaintiff testified, however, that in the two years prior to the tail-whip incident at Wyeth, plaintiff had never been splashed with any fluids or secretions from monkeys, had not received any monkey bites or scratches, and had not scratched himself on a monkey cage. See id. at 94-96.


A. Jurisdiction

Jurisdiction over this matter is based upon diversity of citizenship pursuant to 28 U.S.C. § 1332 and the amount in controversy exceeds $75,000.

B. Summary Judgment Standard

Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Richardson v. New York State Dep't of Correctional Service, 180 F.3d 426, 436 (2d Cir. 1999). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. See Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the ...

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