The opinion of the court was delivered by: Hurley, Senior District Judge
Presently before the Court is a motion for summary judgment filed by defendants*fn1 Lafarge North America Inc. ("Lafarge") and The Home Depot, Inc. ("Home Depot") (collectively, "Defendants") pursuant to Federal Rule of Civil Procedure 56, and a cross-motion for leave to amend their Complaint filed by plaintiffs Jeffrey Leibstein ("Leibstein") and Elena Leibstein (collectively, "Plaintiffs") pursuant to Federal Rule of Civil Procedure 15. Plaintiffs seek recovery on the following three*fn2 causes of action: Strict Products Liability (Count I & V), Negligence (Count II & VI), and Loss of Consortium (Count VIII). Defendants' summary judgment motion targets all three causes of action. Plaintiffs oppose Defendants' motion and cross-move for leave to amend their Complaint to allege violations of the labeling requirements of the Federal Hazardous Substances Act ("FHSA"), 15 U.S.C. §§ 1261-1278 (2000). For the reasons stated below, both motions are DENIED.
The following facts are undisputed unless otherwise noted. On November 28, 2004, Leibstein purchased twelve ninety-four-pound bags of Type I Portland cement (the "Product") at the Home Depot store in Freeport, New York. (Defs.' Local Civ. R. 56.1 Statement of Material Facts ("Defs.' 56.1") ¶ 32.) Leibstein purchased the Product for use in the installation of a radiant-heat floor in his basement. (Pls.' Revised Resp. to Defs.' Local Civ. R. 56.1 Statement of Material Facts ("Pls.' 56.1" ) at 13, ¶ 4; Defs.' 56.1 ¶ 44.) The Product, although sold by Home Depot, was manufactured and packaged by Lafarge. (Pls.' 56.1 at 12, ¶¶ 1 & 2.) Before purchasing the Product, Leibstein read the warning labels on the front and back panels of the Product's packaging. (Defs.' 56.1 ¶ 41.) The warning label on the front panel indicated: "CAUTION," "CORROSIVE," "CONTAINS PORTLAND CEMENT THAT IS INJURIOUS TO EYES, SKIN, LUNGS, AND DIGESTIVE SYSTEM," "KEEP OUT OF REACH OF CHILDREN," "SEE BACK PANEL." (Defs.' 56.1 ¶ 34; see also Defs.' 56.1 Ex. 9-10.) The warning label on the back panel indicated, in relevant part, as follows: "AVOID CONTACT WITH SKIN OR EYES: Contact with skin and eyes may cause irritation, corrosion, or severe burns. Wear suitable eye protection, gloves, and protective clothing. Sensitive people may develop allergic dermatitis upon contact." (Defs.' 56.1 ¶ 37; see also Defs.' 56.1 Ex.11-12.)
On December 5, 2004, Leibstein recruited his two teenage sons to help mix the Product with sand and water. (Pls.' 56.1 at 14, ¶ 5; Defs.' 56.1 ¶ 52.) Leibstein's sons carried the mixed cement in buckets down to the basement and deposited the mixture in a pile in one corner of the room. (Pls.' 56.1 at 14, ¶ 5; Defs.' 56.1 ¶¶ 52 & 53.) As Leibstein spread the cement over the basement floor, he knelt in the mixture for approximately thirty minutes, from about 12:30 PM until sometime after 1:00 PM. (Defs.' 56.1 ¶¶ 53 & 54; see also Pls.' 56.1 at 11-12, ¶ 54.) While he worked with the Product on December 5, 2004, Leibstein wore leather work boots with rubber soles, blue jeans, a flannel shirt, and cloth gloves with rubberized palms. (Defs.' 56.1 ¶ 49; Pls.' 56.1 at 14, ¶ 6.) While Leibstein knelt in the mixture, he did not notice any wetness or dampness on his skin; nor did he experience a burning sensation or pain. (Pls.' 56.1 at 14, ¶ 8.) After he stood up, Leibstein noticed his blue jeans were "damp around the knee area." (Defs.' 56.1 ¶ 54; see also Pls.' 56.1 at 11-12, ¶ 54.) Leibstein brushed off "any excess lumps or anything hanging on" to his blue jeans and then continued to "work from [his] feet [for] most of the rest of the day." (Defs.' 56.1 ¶ 54; see also Pls.' 56.1 at 11-12, ¶ 54.) Leibstein removed his blue jeans later that evening when he undressed to take a shower, around 6:30 or 6:45 PM; at that point, he noticed his knees were "black." (Defs.' 56.1 ¶ 56.) Leibstein was eventually diagnosed with third-degree burns. (Pls.' 56.1 at 14-15, ¶ 11.) Leibstein underwent "debridement procedures and skin grafting surgery as part of his medical treatment followed by extensive physical therapy." (Pls.' 56.1 at 15, ¶ 12.) He has been "left with scarring and restrictions of movement and flexibility." (Pls.' 56.1 at 15, ¶ 12.)
Plaintiffs' Complaint alleges that Defendants failed to provide adequate warnings concerning the Product's hazards and that Defendants' failure to provide such warnings caused Leibstein's injuries. (See Compl. ¶¶ 12-13, 22-23 & 42-43.) Defendants argue that summary judgment is warranted because the Complaint does not specifically allege violations of the FHSA, but rather "allege[s] a failure to warn based upon duties arising from the common law of the State of New York." (Defs.' Mem. in Supp. of Mot. for Summ. J. ("Defs. SJ Mem.") 2.) Defendants contend that any such causes of action are preempted by the FHSA. (Defs. SJ Mem. 2.) Plaintiffs suggest, however, that "the Court should read the [C]omplaint broadly to find the necessary elements of a claim for violation[s] of the FHSA" already implicit in the Complaint, even in the absence of an amendment. (Pls.' Mem. in Opp'n to Mot. for Summ. J. and in Supp. of Cross-Mot. for Leave to Amend ("Pls. Mem.") 7.) In the alternative, Plaintiffs cross-move for leave to amend the Complaint to specifically allege violations of the FHSA. (Pls.' Mem. 7.) Defendants counter that even if the Complaint were amended to allege violations of the FHSA, summary judgment would still be warranted because (1) FHSA violations did not cause Leibstein's injuries, (2) Leibstein was a "knowledgeable user," and (3) the hazard was "open and obvious." (Defs. SJ Mem. 2-3.) As such, Defendants contend that Plaintiffs' cross-motion for leave to amend should be denied as futile. (Defs. SJ Mem. 2-3.) However, in the event the Court concludes that there are genuine issues of material fact regarding (1) whether FHSA violations caused Leibstein's injuries, (2) whether Leibstein was a "knowledgeable user," and (3) whether the hazard was "open and obvious," Defendants urge the Court to exercise its "discretion to construe the existing [C]omplaint as alleging an FHSA cause of action" so as to avoid further delay in this litigation. (Defs.' Mem. in Opp'n to Cross-Mot. for Leave to Amend 3.)
The parties effectively agree, then, that the existence (or lack thereof) of genuine issues of material fact with regard to the three arguments listed above is ultimately determinative of both motions presently before the Court. If the Court concludes that there are no genuine issues of material fact with regard to any one of these three arguments and that Defendants are entitled to judgment as a matter of law on that argument, then Defendants' motion for summary judgment should be granted and Plaintiffs' motion for leave to amend should be denied as futile. If the Court concludes that there are genuine issues of material fact with regard to all three arguments, then Defendants' motion for summary judgment should be denied and the Compliant should be construed as alleging FHSA causes of action even in the absence of an amendment and, as such, Plaintiffs motion for leave to amend should be denied as unnecessary. The parties further agree that FHSA issues are properly joined and ready for decision. (See Defs.' 56.1 ¶ 3.)
III. SUMMARY JUDGMENT STANDARD
Summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56") is only appropriate where admissible evidence, in the form of affidavits, deposition transcripts, or other documentation, demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See, e.g., Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir. 2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir. 2007). No genuine issue of material fact exists when the movant demonstrates, on the basis of the pleadings and submitted evidence, that no rational jury could find in the non-movant's favor. See, e.g., Warshawsky, 559 F.3d at 137; Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed. R. Civ. P. 56(c)). In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-movant. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987).
To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show there is a genuine issue of material fact to be tried. See, e.g., Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts," Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and "cannot... rely on the allegations in his pleading, or on conclusory statements, or on mere assertions that affidavits supporting the motion are not credible," Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (citations omitted). Affidavits submitted in opposition to a summary judgment motion must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing Fed. R. Civ. P. 56(e)).
When determining whether a genuine issue of material fact exists, "a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability." Anderson, 477 U.S. at 254-55. A court considering a summary judgment motion must be "mindful of the underlying standards and burdens of proof" because the evidentiary burdens that the respective parties would bear at trial guide the court in its determination of a summary judgment motion. Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252); see also Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-movant will bear the ultimate burden of proof on an issue at trial, the movant's burden under Rule 56 will be satisfied if the movant can point to an absence of evidence to support an essential element of the non-movant's claim. See, e.g., Brady, 863 F.2d at 210-11. Where a movant without the underlying burden offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not 'implausible.'" Brady, 863 F.2d at 211 (citing Matsushita, 475 U.S. at 587).
IV. LEAVE TO AMEND STANDARD
Leave to amend pursuant to Federal Rule of Civil Procedure 15 should be "freely give[n] when justice so requires," Fed. R. Civ. P. 15(a)(2), and "should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility," Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Where a cross-motion for leave to amend the complaint "is made in response to a [Rule] 56 motion for summary judgment, and the parties have fully briefed the issue [of] whether the proposed amended complaint could raise a genuine issue of fact and have presented all relevant evidence in support of their positions," there "the court may deny the amendment as futile when the evidence in support of the plaintiff's proposed new claim creates no triable issue of fact and the defendant would be entitled to judgment as a matter of law under [Rule] 56(c)." Milanese, 244 F.3d at 110 (citing Azurite Corp. v. Amster & Co., 844 F. Supp. 929, 939 (S.D.N.Y. 1994), aff'd, 52 F.3d 15 (2d Cir. 1995)).
A. Defendants' Preemption Argument
Defendants argue that the Product was a "hazardous substance" as defined by the FHSA and that, as such, the FHSA expressly preempts any state causes of action that would impose labeling requirements that are not identical to the FHSA requirements. (Defs. SJ Mem. 5-8.) Plaintiffs agree that the Product was a "hazardous substance" under the FHSA and concede, insofar as their Complaint is read to assert causes of action based on New York common law duties to warn, that such causes of action are preempted by the FHSA. (See Pls.' Mem. 5.)
Plaintiffs contend, however, that state causes of action based on violations of the FHSA are not preempted by the FHSA and, furthermore, that such FHSA causes of action will lie under New York law. (See Pls.' Mem. 5.)
The FHSA "was enacted in 1960 to 'provide nationally uniform requirements for adequate cautionary labeling of packages of hazardous substances which are sold in interstate commerce and are intended or suitable for household use.'" Milanese v. Rust-Oleum Corp., 244 F.3d 104, 109 (2d Cir. 2001) (quoting House Comm. on Interstate and Foreign Commerce, Federal Hazardous Substances Labeling Act, H.R. Rep. No. 1861, at 2 (1960), reprinted in 1960 U.S.C.C.A.N. 2833, 2833). Under the FHSA, a "hazardous substance" is defined as, inter alia, "[a]ny substance or mixture of substances which... is corrosive*fn3... if such substance or mixture of substances may cause substantial personal injury or substantial illness during or as a proximate result of any customary or reasonably foreseeable handling or use." 15 U.S.C. § 1261(f)(1)(A) (2000). A "misbranded hazardous substance" is a hazardous substance that is "intended, or packaged in a form suitable, for use in the ...