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BATORI v. AMERICAN PERMALIGHT

United States District Court, S.D. New York


November 12, 2004.

RONALD and REGINA BATORI, et al. Plaintiffs,
v.
AMERICAN PERMALIGHT, INC., et al. Defendants. HERMAN GEIER, et al. Plaintiffs, v. AMERICAN PERMALIGHT, INC., et al. Defendants.

The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

  On November 11, 2000, a ski train in Kaprun, Austria caught fire, killing 155 passengers and crew members.*fn1 Plaintiffs, survivors of the train fire and relatives of those killed in the train fire, brought suit against several corporate defendants, alleging that the defendants "designed, manufactured, sold and warranted" light sticks that were present on the train at the time of the fire.*fn2 Plaintiffs submit that after a fire broke out in the conductor's cabin on the train, the light sticks caused the fire to accelerate and ultimately contributed to the death and serious injuries of the train's passengers.*fn3 Defendant Wyeth Holdings s/h/a American Cyanamid, Inc. ("American Cyanamid") now moves for summary judgment in both the Batori and Geier cases pursuant to Federal Rule of Civil Procedure 56.*fn4 For the reasons set forth below, American Cyanamid's motions for summary judgment are granted.

  II. BACKGROUND

  Defendant American Cyanamid moves for summary judgment based on its assertions that it did not manufacture the light sticks that were on the train when it caught fire on November 11, 2000*fn5 and that plaintiffs have failed to provide any evidence to raise a genuine issue of material fact with respect to their claim that American Cyanamid produced or sold the accused light sticks.*fn6 In support of these arguments, defendant offers evidence that American Cyanamid sold its light stick business to Omniglow on March 25, 1993.*fn7 Additionally, defendant states that "[p]ersonal information . . . received from Dr. Thomas Frad of Vienna, Austria, attorney for Kaprun Gletscherbahn, A.G.," indicates that the light sticks on the train were purchased in 1996 and had an expiration date of 2000.*fn8 Because the inventory of light sticks sold to Omniglow in 1993 was allegedly exhausted before 1995,*fn9 defendant argues that American Cyanamid could not have manufactured the light sticks that were on the train in 2000 and allegedly contributed to plaintiffs' injuries. In response, plaintiffs argue that "there exist genuine issues of fact as to defendant[']s ultimate involvement with the light sticks in question" and request additional discovery in order to "more fully oppose" defendant's motion.*fn10

  III. LEGAL STANDARD

  Summary judgment is appropriate under Rule 56(c) where the evidence shows that "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law."*fn11 "An issue of fact is `genuine' if `the evidence is such that a jury could return a verdict for the nonmoving party."*fn12 "A fact is `material' for these purposes if `it might affect the outcome of the suit under the governing law.'"*fn13 The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists.*fn14 Accordingly, the non-moving party can defeat summary judgment by raising a genuine issue of material fact. However, if the moving party carries its preliminary burden, the non-moving party may not defeat summary judgment by relying on "conclusory allegations or unsubstantiated speculation,"*fn15 but must "designate specific facts showing that there is a genuine issue for trial."*fn16 In reviewing the evidence, "all reasonable inferences must be drawn in the non-movant's favor."*fn17

  IV. DISCUSSION

  A. Product Identification

  Defendant American Cyanamid argues that it is entitled to summary judgment as a matter of law because it did not manufacture any light sticks which were on the ski train when it caught fire in 2000.*fn18 However, American Cyanamid fails to offer competent evidence to support this contention. American Cyanamid offers a sales agreement as evidence that it sold its light stick business to Omniglow in 1993;*fn19 however, its remaining assertions of fact — that the inventory sold to Omniglow was exhausted by 1995 and that the accused light sticks were manufactured in 1996 — are unsupported except by the affirmations of defendant's counsel, Mr. Haesloop.*fn20

  Rule 56 requires that supporting affidavits "be made on personal knowledge" and that they "show affirmatively that affiant is competent to testify to the matters stated therein."*fn21 However, Mr. Haesloop's affidavit clearly fails to affirmatively demonstrate that he has personal knowledge of the facts asserted therein. Mr. Haesloop's affidavit states, "It should be remembered that these light sticks have a life expectancy of four years and those on the train expired in May 2000, which makes the date of manufacture 1996."*fn22 Mr. Haesloop further affirms that Omniglow exhausted the inventory purchased from American Cyanamid as part of the 1993 Sales Agreement before 1995.*fn23 Mr. Haesloop does not affirm, however, that he has personal knowledge of these facts. Instead, Mr. Haesloop simply asserts that as a member of the firm representing defendants, he is "fully familiar with the facts and circumstances of this matter."*fn24 An attorney's familiarity with a case on which he is working, without more, is not sufficient to establish personal knowledge of the material facts of the case.*fn25 Furthermore, to the extent that his assertions rest on "[p]ersonal information . . . received from Dr. Thomas Frad,"*fn26 Mr. Haesloop's affirmations would be inadmissible hearsay if offered at trial and must therefore be disregarded.*fn27

  B. Plaintiffs Raise No Genuine Issue of Material Fact

  Although American Cyanamid has offered no competent evidence proving that it did not manufacture or sell the light sticks that were on the train at the time it caught fire, the movant is nevertheless entitled to judgment as a matter of law if the nonmoving party "fail[s] to make a sufficient showing on an essential element . . . with respect to which [it] has the burden of proof."*fn28 Thus, the moving party "bears the initial responsibility for informing the district court of the basis for its motion," but there is "no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim."*fn29 "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial."*fn30 When the party opposing summary judgment fails to make such a showing, "there can be no issue as to any material fact, since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."*fn31

  Here, American Cyanamid argues that plaintiffs have failed to offer any evidence suggesting that American Cyanamid manufactured or sold the light sticks that were on the train at the time of the accident.*fn32 Under New York law, the plaintiff bears the burden of establishing that the product accused of causing the injury is the product of the defendant.*fn33 Thus, plaintiffs bear the burden of showing that there is a genuine issue of fact concerning whether American Cyanamid produced or sold the light sticks that were on the train at the time it caught fire in 2000.*fn34 Because plaintiffs have failed to make any showing concerning this essential element,*fn35 summary judgment is proper.*fn36

  C. Plaintiffs' Request for Additional Discovery

  Having failed to make a showing concerning whether the accused product is that of defendant American Cyanamid, plaintiffs argue that they must be granted additional discovery in order to "more fully oppose" defendant's motion.*fn37 In particular, plaintiffs argue that additional discovery is necessary in order to determine "what the true relationship is" between Omniglow and American Cyanamid and whether "Omniglow bought finished light sticks from American Cyanamid and resold them to third parties."*fn38

  Under Rule 56(f), when the non-moving party seeks to defeat summary judgment by requesting additional discovery, that party "must file an affidavit explaining (1) what facts are sought and how they are to be obtained (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort the affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts."*fn39 Plaintiffs' counsel submitted an affidavit requesting "discovery on certain limited issues related to the defendants' involvement with the light sticks and the connections between Omniglow and . . . American Cyanamid."*fn40 However, with respect to the "connections" between Omniglow and American Cyanamid, plaintiffs offer no explanation as to how information concerning such connections might be "reasonably expected to create a genuine issue of material fact."*fn41 Similarly, plaintiffs do not explain how information concerning American Cyanamid's "involvement with the light sticks" would raise a genuine issue of material fact, but the apparent implication is that light sticks sold by American Cyanamid as part of the 1993 Sales Agreement may have become part of the safety equipment on the train that caught fire in 2000.*fn42 However, plaintiffs do not assert that this is the case; moreover, they have not provided a single piece of evidence tending to support such a view. A discovery request based on "speculation as to what could potentially be discovered" is insufficient to defeat summary judgment.*fn43 Furthermore, plaintiffs do not explain how such information is to be obtained, what effort has been made to obtain it, or why any efforts to do so have been unsuccessful.*fn44 Accordingly, plaintiffs' request for additional discovery is denied.

  V. CONCLUSION

  For the foregoing reasons, American Cyanamid's motion for summary judgment is granted. Because plaintiffs have voluntarily dismissed their claims against Marlyco and the Reese defendants, these defendants' motions for summary judgment are moot. Finally, because plaintiffs do not oppose Omniglow's motion to consolidate the claims against it into the class action, this motion is granted. The Clerk is directed to close these motions [03 Civ. 8960 # 19 and 03 Civ. 8961 #18].

  SO ORDERED.


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