United States District Court, S.D. New York
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
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
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
(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 still
pending in that case and judgment has not yet been entered.*fn3 (Def.
Mem. at 3-4).
Plaintiffs seek partial summary judgment, under the doctrine of
collateral estoppel, on their claims of strict liability design defect,
negligent design defect, and breach of implied warranty, arguing that the
Sinrod verdict precludes Defendants from relitigating these
issues. Although Plaintiffs would leave the factual question of whether
Vera Whalen had been exposed to Defendants' gloves to the jury, Plaintiffs appear to argue that if the
jury were to find exposure, no further jury finding would be required in
order to establish liability in this action. (Pl. Mem. at 7).
Defendants argue that Plaintiffs' motion for summary judgment should be
denied because (1) final judgment has not been entered in the
Sinrod action and therefore the jury verdict has no collateral
estoppel effect; and (2) the issues in Sinrod and this case
are not identical, and thus collateral estoppel does not apply. The
Court agrees and denies Plaintiffs' motion.
A. Final Judgment
Under the doctrine of collateral estoppel which is also
referred to as issue preclusion an issue of fact or law that has
been actually litigated and resolved by a valid final judgment binds the
parties in a subsequent action, whether on the same or a different claim.
Baker by Thomas v. General Motors Corp., 522 U.S. 222, 233 n.5
(1998). "[F]inality for collateral estoppel purposes occurs when issues
have been necessarily determined in a prior final disposition of a cause
of action on the merits." State Bank of Albany v. McAuliffe,
108 A.D.2d 979, 981 (3d Dep't 1985). Here, collateral estoppel does not
preclude Defendants from raising any issue litigated in Sinrod
because, although the Sinrod jury returned a verdict, final
judgment has not yet been entered. See Rudd v. Cornell,
171 N.Y. 114, 127 (1902) (listing a judgment as one of the necessary elements
for collateral estoppel because "verdicts or other findings not
followed by judgment are not binding").
B. Identical Issues
Even assuming that final judgment has been entered on the
Sinrod jury verdict since Plaintiffs filed this motion,
Plaintiffs must satisfy two requirements before invoking preclusion:
"First, the identical issue necessarily must have been decided in the
prior action and be decisive of the present action, and second, the party
to be precluded from relitigating the issue must have had a full and fair
opportunity to contest the prior determination." Kaufman v. Eli
Lilly & Co., 65 N.Y.2d 449, 455 (1985). As the party seeking the
benefit of collateral estoppel, Plaintiffs bear the burden of proving the
identity of the issues that is, Plaintiffs must prove that the
issues for which preclusion is sought are identical to the issues
adjudicated. Khandhar v. Elfenbein, 943 F.2d 244, 247 (2d Cir.
1991). Here, Plaintiffs are not entitled to invoke collateral estoppel
because the factual issues in Sinrod are not identical to the
issues in the instant action.
Although not entirely clear from Plaintiffs papers, it appears that
Plaintiffs seek to invoke collateral estoppel with respect to the issue
of whether the protein levels in Defendants' latex gloves were
"reasonably safe." (Pl. Mem. at 2). Like Vera Whalen, the plaintiff in
Sinrod was a healthcare worker who alleged that she was injured as a result of exposure to Defendants'
gloves. (pl. Mem. at 2). However, Plaintiffs cannot demonstrate that the
products at issue in Sinrod and the product or products to
which Vera Whalen was exposed are identical. The Sinrod
plaintiff's claims were based upon exposure to Defendants' Style 42
gloves and, to a lesser extent, Style 37 and Style 85 gloves. (pl. Mem.
at 3; Def. Mem. at 9). Vera Whalen has not identified, by style number,
any specific Smith & Nephew product to which she was exposed.*fn4
Furthermore, Vera Whalen claims to have worn Smith & Nephew
examination gloves, while the Sinrod plaintiff only claimed to
have been exposed to Smith & Nephew surgical gloves.
The particular glove style is crucial to a collateral estoppel analysis
because different types of gloves contain different proteins and
different levels of proteins.*fn5 (Def. Mem. at 10-11). In evaluating the applicability of collateral estoppel
in design defect cases, whether a design is identical is paramount.
Courts have refused to apply collateral estoppel in situations even where
the two products were made from a common raw material, had the same
manufacturing process, underwent the same inspection process, and had the
same dimensions. Anderson v. Bungee Int'l Mfg. Corp.,
44 F. Supp.2d 534, 539 (S.D.N.Y. 1999).
Plaintiffs' argument that evidence was introduced at the
Sinrod trial "as to the protein levels in all of the latex
gloves manufactured by Smith & Nephew" and that the relevant design
defect Mid not relate to any specific glove, but rather to the failure of
Smith & Nephew to reduce the protein levels in all of their brands
from at least 1991, when they were notified by the FDA that that was, if
not mandated, certainly the minimum necessary to demonstrate good
manufacturing practice" is unavailing. (pl. Mem. at 3). A plaintiff "must
do more than show that the issues in the two cases are very similar. In
order for [a plaintiff] to invoke the doctrine of collateral estoppel, he
must show that the issues in the two proceedings are "truly identical.'"
Anderson, 44 F. Supp.2d at 539; see also Kramer v. Showa
Denko K.K., 929 F. Supp. 733, 750 (S.D.N.Y. 1996) ("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."). As Plaintiffs have failed to make
this showing, the Sinrod decision will not be given preclusive
effect and, therefore the motion for partial summary judgment is denied. CONCLUSION
Defendants' motion for summary judgment and Plaintiffs' motion for
summary judgment are DENIED. The parties are directed to submit a joint
pretrial order on or before June 28, 2004. All proposed voir
dire, proposed jury charges, and motions in limine must be submitted no
later than Monday, July 5, 2004. A final pretriai conference will be held
on Monday, July 12, 2004 at 10:30 a.m. Trial will commence at 10:00 a.m.
on Tuesday, July 20, 2004.