The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM-DECISION and ORDER
Plaintiffs Joseph Canino ("plaintiff") and his wife Julia
Canino commenced this action
for injuries allegedly incurred when plaintiff received a
shipment of sixty monkeys in the course of his employment as a
lab technician and subsequently contracted a disease known as
Herpes B Simian Virus ("HBSV"). Plaintiffs have alleged causes of
action against defendant HRP, Inc. a/k/a Covance Research
Products, Inc. ("Covance"), which provided the monkeys, sounding
in negligence, products liability, breach of warranty, ultra
hazardous activity, and negligent breach of federal and state
statutory regulations and laws. Plaintiffs also assert a
negligence cause of action against Kritter Krates, Inc. ("Kritter
Krates"), which transported the monkeys to plaintiff's place of
employment. Plaintiffs seek punitive damages from both defendants
and have filed a loss of consortium claim on behalf of
plaintiff's wife, also requesting punitive damages.
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
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.
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 ...