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WHALEN v. ANSELL PERRY

April 12, 2004.

VERA WHALEN and ROBERT WHALEN, Plaintiffs, V. ANSELL PERRY, INC., et al., Defendants


The opinion of the court was delivered by: BARBARA JONES, District Judge

OPINION and ORDER

Plaintiffs bring this product liability action against Defendants Smith & Nephew, Inc. n/k/a/ Smith & Nephew AHP, Inc. and Smith & Nephew Consolidated, Inc. n/k/a Smith & Nephew, Inc. (collectively "Smith & Nephew"), alleging that Smith & Nephew's latex gloves caused Vera Whalen, who was exposed to Defendants' gloves when she worked as a nurse at Columbia Presbyterian Hospital, to develop a latex allergy.*fn1 Plaintiffs' claims against Smith & Nephew include negligent design defect, strict liability design defect, failure to warn and misrepresentation, breach of warranty and loss of consortium.

Defendants have moved for summary judgment, arguing that Plaintiffs have offered no evidence of causation. Plaintiffs have cross moved for partial summary judgment on the design defect and breach of warranty claims, arguing that a jury verdict in a New York State Supreme Court case precludes Defendants from denying liability with respect to these claims. For the reasons set forth below, both motions are DENIED.*

 I. Defendants' Motion for Summary Judgment

  There are two pieces of evidence Defendants cite to support their lack of causation argument: (a) Vera Whalen testified at her deposition that she recalled using or being exposed to latex gloves manufactured by Defendants only prior to and including 1990; and (b) Plaintiffs' experts testified that it is "probable" that the exposure that triggered Vera Whalen's latex sensitization occurred within five years prior to her first reaction and that they "could do no more than speculate" as to whether exposure five or six years before the fact "caused or contributed to [Vera Whalen's] sensitization." (Pl. Mem. at 3, 8-9). Because Vera Whalen's first latex reaction did not occur until October 1996 and because her last exposure to Defendants' gloves was in 1990, Defendants argue that Plaintiffs can offer no non-speculative evidence of causation.

  More specifically, Defendants base their argument on the following exchange that occurred during Vera Whalen's deposition:
Q: [D]o you specifically recall using or being exposed to Perry gloves*fn2 at any other time during your career or education besides the period of time between 1984 and 1990? A: No, not that I recall.
(Whalen Dep. at 464).
  Although the foregoing deposition testimony, standing alone, indicates that Vera Whalen was not exposed to latex gloves manufactured by Defendants within five years prior to her first reaction, she also testified as follows:
Q: Did you ever personally work with any of those ophthalmologists when they were wearing the brown gloves?
A: Yes, many times.
Q: What was the name brand of the brown glove? A: I don't recall. I know that Perry made a brown glove.
Q: Do you know if Perry made the brown glove with the better sensitivity in the fingers that these particular ophthamologists liked?
A: I believe so.
Q: During what time periods did you work with [the doctors who wore the brown gloves]?
A: . . . [F]rom 1979, I would say, until 1996.
Q: Of the various brands of brown gloves worn by doctors with whom you worked with at the Eye Institute, was one brand of brown glove used more than any other?
A: The Perry brown gloves standout in my mind for some reason.
(Whalen Dep. at 336-38, 345) (emphases added).
  In an affidavit, dated July 24, 2003 (approximately two weeks after Defendants filed their summary judgment motion), Vera Whalen explained this apparent inconsistency in her deposition testimony as follows:
I believe my testimony was taken out of context, and also note that it was my understanding of the questioning that they were only asking me about my own personal use and exposure to latex gloves after 1990, which is why I indicated that I did not recall myself using or being exposed to Perry gloves after 1990. As I testified, I usually wore Perry examination gloves during 1984 to 1990.
However, my testimony also confirms I was an operating room nurse during the entire period from 1984 through my October 9, 1996 latex allergy reaction, and that during those years part of my duties was to open packages of sterile surgeon's gloves and put them on the surgeons after they washed up and as they going [sic] into surgery. I also specifically testified that I recalled the surgeon gloves used during that period included Perry gloves during the entire period, including 1996. [Whalen Dep.], at pp. 337-39 and 344-45.
I, therefore, dispute that I was not exposed to Perry gloves worn by others in my workplace during the entire period I was employed as an operating room nurse at Columbia Presbyterian from 1984 through 1996.
(Whalen Aff. ¶¶ 3-5) (emphasis added).

  Defendants urge the Court to disregard Vera Whalen's affidavit because some portions of her deposition clearly indicate that the gloves Vera Whalen was exposed to after 1990 were not manufactured by Smith & Nephew. (Reply at 3-4). Presumably, Defendants are relying on the principle that a court should disregard a party's affidavit that contradicts her own prior deposition testimony. See Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987).

  The Court has examined the deposition pages cited in Vera Whalen's affidavit. The testimony on those pages supports an inference that Vera Whalen was exposed to Perry gloves worn by other individuals after 1990, and her affidavit unambiguously states that she was exposed to Perry gloves worn by others through 1996. Although Mrs. Whalen's affidavit statement that she was exposed to Perry gloves worn by others through 1996 appears to contradict other portions of her deposition testimony, the affidavit statement is not inconsistent with her deposition testimony at pages 336-38 and 345, and thus the affidavit does not entirely contradict her deposition testimony.

  Although these inconsistencies may create an issue of credibility, credibility determinations are to be made by a jury and are not properly considered on a motion for summary judgment. At the summary judgment stage, a court must believe the evidence of the nonmovant, and all justifiable inferences are to be drawn in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Therefore, the Court will consider the statements in Vera Whalen's affidavit and accept them as true for the purposes of this motion.

  Defendants also argue that the post-deposition affidavit of Plaintiffs' expert Dr. Chiaramonte contradicts his deposition testimony, and that "a party's affidavit which contradicts [her] own prior deposition testimony should be disregarded on a motion for summary judgment." Mack v. United States, 814 F.2d 120, 124 (2d Cir. 1987). However, the Court need not consider this argument. The statements in Vera Whalen's affidavit, which the Court must accept as true, are evidence that she was exposed to Defendants' latex gloves up until 1996 — the year in which Vera Whalen had her first; latex reaction. This exposure, taken with the deposition testimony of Plaintiffs' two experts, constitutes sufficient evidence of causation, and the Court need not consider the post-deposition affidavit of Dr. Chiaramonte. Therefore, Defendants' motion for summary judgment is denied.

  II. Plaintiffs' Motion for Partial Summary Judgment

  On September 26, 2003, the jury in Sinrod v. Smith & Nephew AHP, Inc., Ind. No. 118434/97 (N.Y. Cty. Sup. Ct.), a latex glove allergy case tried in New York State Supreme Court in 2003, returned a verdict for the plaintiff. The parties have informed the Court that a post-trial motion for judgment notwithstanding the verdict is ...


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