Opinion
Index No. 65938/2014 CAL. No. 202000580OT Mot. Seq. Nos. 003 MG004 MD
07-07-2021
NICOLE BAUMAN, Plaintiff, v. SIRONA DENTAL, INC., d/b/a SIRONA DENTAL SYSTEMS, MANUFACTURER OF CEREC MILLING MACHINES, JOHN/JANE DOES 1-100, XYZ CORPORATION 1-100, ABC ENTITIES 1-100, Defendants. SIRONA DENTAL, INC., d/b/a SIRONA DENTAL SYSTEMS, MANUFACTURER OF CEREC MILLING MACHINES, Third-Party Plaintiff, v. KAPPLER USA, LLC, Third-Party Defendants. SIRONA DENTAL, INC., s/h/a SIRONA DENTAL INC. d/b/a SIRONA DENTAL SYSTEMS, MANUFACTURER OF CEREC MILLING MACHINES, Second Third-Party Plaintiff, v. KAPPLER MED + ORG GMBH, Second Third-Party Defendants.
SACCO & FILLAS, LLP Attorney for Plaintiff LAW OFFICE OF ANDREA G. SAWYERS Attorney for Defendant Sirona LONDON FISCHER, LLP Attorney for Third-Party Defendant Kappler USA WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP Attorney for Second Third-Party Defendant Kappler Med + Org
Unpublished opinion
MOTION DATE 11/18/20
ADJ. DATE 2/2/21
SACCO & FILLAS, LLP Attorney for Plaintiff
LAW OFFICE OF ANDREA G. SAWYERS Attorney for Defendant Sirona
LONDON FISCHER, LLP Attorney for Third-Party Defendant Kappler USA
WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP Attorney for Second Third-Party Defendant Kappler Med + Org
PRESENT: Hon. LINDA J. KEVINS Justice of the Supreme Court
Linda Kevins, Judge
Upon the following papers read on these e-filed motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers filed by defendant Sirona Dental, Inc., s/h/a Sirona Dental Inc., d/b/a Sirona Dental Systems, on October 14, 2020; Notice of Cross Motion and supporting papers filed by second third-party defendant Kappler Med + ORG GmbH, on October 15, 2020; Answering Affidavits and supporting papers filed by plaintiff, on January 12, 2021; filed by plaintiff, on January 12, 2021; Replying Affidavits and supporting papers filed by second third-party defendant Kappler Med + ORG GmbH, on January 30,2021; filed by defendant Sirona Dental, Inc., s/h/a Sirona Dental Inc., d/b/a Sirona Dental Systems, on February 1,2021; Other ___; it is
ORDERED that the motion by defendant Sirona Dental, Inc. for summary judgment dismissing the complaint as asserted against it is granted; and it is further
ORDERED
that the cross motion by second third-party defendant Kappler Med + ORG GmbH for, in effect, summary judgment dismissing the third-party complaint as asserted against it is denied; and it is further
ORDERED
that if this Order has not already been entered, the movant is directed to promptly serve a certified copy of this Order, pursuant to CPLR §§ 8019 (c) and 2105, upon the Suffolk County Clerk, who is directed to hereby enter such Order; and it is further
ORDERED
that upon Entry of this Order, the movant is directed to promptly serve a copy of this Order with Notice of Entry upon all parties and to promptly file the affidavits of service with the Clerk of the Court.
This action was commenced by plaintiff Nicole Bauman to recover damages for injuries she allegedly sustained on March 20, 2012, when the lid (also referred to as the hood) of a cabinet, containing a CEREC dental milling machine, unexpectedly fell onto her head. Plaintiff asserts causes of action against defendant Sirona Dental, Inc., s/h/a Sirona Dental Inc., d/b/a Sirona Dental Systems (Sirona) for, inter alia, negligence, failure to maintain dental equipment and/or improper inspection of dental equipment, failure to warn, breach of express and implied warranty of fitness, strict liability for defective design, and strict liability for manufacturing defect. A third-party action was commenced by Sirona against Kappler USA, LLC, but was discontinued. A second third-party action was commenced by Sirona against Kappler Med + ORG GmbH (Kappler), which manufactured the subject cabinet under an exclusive agreement with Sirona.
Plaintiff testified that she was employed as a dental assistant at the office of John Lagner, D.D.S., in East Northport, New York. She testified that she had been employed there since the summer of 2006, and that her duties included assisting the dentists during procedures, setting up stations, and operating the in-office CEREC dental milling machine. Plaintiff testified that the CEREC machine was used to create dental crowns and in-lays, and that it was housed in a specialized cabinet to help reduce the noise it created when it was milling porcelain. She testified that she received training directly from Dr. Lagner with respect to the use of the machine and the cabinet, and that she used it "very often." She testified that she had seen the machine serviced annually, and that she was tasked with calling Patterson for service, if the cabinet or machine needed it. She recalled previous service calls for motor burnouts and to replace chemicals. Plaintiff testified that approximately six to eight months before her accident, she began to notice problems with the cabinet, specifically that the hood of the cabinet started "slowly releasing" and that she believed the pistons that held the lid ajar began to weaken. She testified that she heard the sound of the air in the pistons weaken, and that she told Dr. Lagner of the issue with the pistons "on multiple occasions." Plaintiff testified that on March 20, 2012, at approximately 4:30 p.m., she was assisting another dentist, Dr. Kozlowski, in making a crown for a patient. She testified that as she went to retrieve the crown from the machine, she lifted the hood of the cabinet with her right hand, and then both hands, ensuring that it was locked in place. She testified that when she let go of the lid to open the drawer to retrieve the crown, the hood fell down, striking her on the head.
Dr. Lagner testified that he purchased a CEREC milling machine for use in his office in December 2004 from nonparty Patterson Dental Supply (Patterson). He testified that the machine had two components, a chair-side computer and camera component, and the milling machine, which was stored across a hallway in his office. He testified that at the time he purchased it, there was a service contract with Patterson, who would provide annual service and repairs, as needed. Dr. Lagner testified that in February 2006, he purchased a cabinet to house the milling machine, due to the noise it created while it was running. He testified that he purchased the cabinet from Patterson, but did not change his service agreement to include the cabinet. He testified that between February 2006 and March 2012, he used the milling machine and cabinet daily, and that he did not have any concerns regarding the cabinet, and that it did not need any service or repairs. He testified that no one in the office ever made any complaints to him about the cabinet.
Steven Sutton testified that he is the director of technical services for Sirona, that Sirona manufactured CEREC milling machines, and that Kappler manufactured the cabinetry to house the machines in dental offices. He testified that the cabinets are designed to store the milling machines and to reduce noise while the machines are in use. He testified that Sirona sold the CEREC machines to Patterson, who sold the machines exclusively. He further testified that although Sirona did not sell the CEREC machines to individuals, Sirona did receive records of complaints, if sent to Patterson. With respect to the cabinet, he testified that Sirona never received any complaints about the closing mechanism on the cabinet. Mr. Sutton explained that if a problem arose with the cabinet, Sirona would contact Kappler to obtain parts so that Patterson could provide service. He recalled that in 2005, Kappler sent new gas springs which had increased resistence, for a voluntary change out, because some cabinets in that shipment had a "thump" in the last two-to-three inches of closing.
Holger Kappler testified that he is the CEO of Kappler, including Kappler USA, LLC and Kappler Med + ORG GmbH. He testified that Kappler had an original equipment manufacturing agreement with Sirona for the design and manufacture of dental cabinets. He testified that Kappler, in conjunction with Sirona, designed and developed the subject cabinets specifically to store CEREC machines, and that Sirona funded all of the research and development. He testified that after the original drawings were drafted, production and testing began. He explained that part of the testing included "lifetime testing," which evaluated how long the cabinets would last, including the pneumatic system on the lids of the cabinets. He testified that they chose Bansbach 1 ION pistons for the lid design, based on the smoothness of the closure. He testified that for one particular shipment of cabinets, they found that the lids were not closing as smoothly as they preferred, and that Kappler voluntarily sent replacement pistons, at HON, if customers were unsatisfied with the smoothness of the closure.
Sirona now moves for summary judgment dismissing the complaint as asserted against it, arguing that it had no duty to maintain the subject dental cabinet used at Dr. Lagner's office, that there was no defect in the design or manufacture of the subject cabinet, that there was no failure to warn plaintiff of the wear and tear of the pistons, and that no warranty existed at the time of plaintiff s accident. In support of its motion, Sirona submits, inter alia, the affidavits of David A. Guido and Michael A. Dunlap, and copies of the transcripts of the depositions of plaintiff, Steven Sutton, Holger Kappler, Dr. Lagner, and Dr. Kozlowski. Kappler cross-moves for, in effect, the same relief as Sirona, and adopts Sirona's arguments seeking to dismiss plaintiffs complaint. Plaintiff opposes the motions, arguing that triable issues of fact exist with respect to whether Sirona and Kappler defectively designed and manufactured the subject cabinet, whether adequate warnings were provided, and whether they failed to maintain the cabinet. Plaintiff submits the affidavit of Ali M. Sadegh.
A manufacturer who places a defective product into the stream of commerce maybe liable for injuries or damages caused by such product (see Gebo v Black Clawson, 92 N.Y.2d 387, 392, 681 N.Y.S.2d 221 [1998]; Liriano v Hobart Corp., 92 N.Y.2d 232, 235, 677 N.Y.S.2d 764 [1998]; Amatulli v Delhi Constr. Corp., 77 N.Y.2d 525, 532, 569 N.Y.S.2d 337 [1991]). A product may be defective due to a mistake in the manufacturing process, an improper design or a failure to provide adequate warnings regarding the use of the product (Gebo v Black Clawson, supra; Voss v Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398 [1983]). Depending upon the factual circumstances, a person injured by a defective product may maintain causes of action under the theories of strict products liability, negligence or breach of warranty (see Voss v Black & Decker Mfg. Co., 59 N.Y.2d 102, 463 N.Y.S.2d 398 [1983]). Whether an action is pleaded in strict products liability, negligence or breach of warranty, the plaintiff has the burden of establishing that a defect in the product was a substantial factor in causing the injury, and that the defect existed at the time the product left the manufacturer or other entity in the chain of distribution being sued (see Clarke v Helene Curtis, Inc., 293 A.D.2d 701, 742 N.Y.S.2d 325 [2d Dept 2002]; Tardella v RJR Nabisco, 178 A.D.2d 737, 576 N.Y.S.2d 965 [3d Dept 1991]).
A defectively designed product is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer, is unreasonably dangerous for its intended use, and whose utility does not outweigh the danger inherent in its introduction into the stream of commerce (Hoover v New Holland, Inc., 23 N.Y.3d 41, 53-54, 988 N.Y.S.2d 543 [2014], quoting Voss v Black & Decker Mfg. Co., supra at 107). To determine whether a plaintiff has made this showing, "certain risk-utility factors must be considered," which are:
(1) the product's utility to the public as a whole; (2) its utility to the individual user; (3) the likelihood that the product will cause injury; (4) the availability of a safer design; (5) the possibility of designing and manufacturing the product so that it is safer; (6) the degree of awareness of the potential danger that can be attributed to the injured user; and (7) the manufacturer's ability to spread the cost of safety-related design changes(Fasolas v Bobcat of N.Y., Inc., 33 N.Y.3d 421, 104 N.Y.S.3d 550 [2019]). However, a manufacturer's duty "does not extend to designing a product that is impossible to abuse or one whose safety features may not be circumvented [or, to incorporating] safety features into its product so as to guarantee that no harm will come to every user no matter how careless or even reckless" (Robinson v Reed-Prentice Div. of Package Mach. Co., 49 N.Y.2d 471, 480-481, 426 N.Y.S.2d 717 [1980]).
Distributors of defective products, as well as retailers and manufacturers, are subject to strict products liability (see Harrigan v Super Prods. Corp., 237 A.D.2d 882, 654 N.Y.S.2d 503 [1997]; Giuffrida v Panasonic Indus. Co., 200 A.D.2d 713, 607 N.Y.S.2d 72 [2d Dept 1994]). Strict products liability extends to retailers and distributors in the chain of distribution even if they "never inspected, controlled, installed or serviced the product" (Perillo v Pleasant View Assocs., 292 A.D.2d 773, 739 N.Y.S.2d 504 [4th Dept 2002]). It is established law that a products liability case can be proven absent evidence of any particular defect by presenting circumstantial evidence excluding all causes of the accident not attributable to defendant, thereby giving rise to an inference that the accident could only have occurred due to some defect in the product (see Graham v Walter S. Pratt & Sons Inc., 271 A.D.2d 854, 706 N.Y.S.2d 242 [3d Dept 2000]).
A manufacturer may be held liable for the failure to warn of the latent dangers resulting from the foreseeable uses of its product which it knew or should have known (see Liriano v Hobart Corp., supra; Rastelli v Goodyear Tire & Rubber Co., 79 N.Y.2d 289, 582 N.Y.S.2d 373 [1992]). Liability may be imposed based on either the complete failure to warn of a particular hazard or the inclusion of warnings that are inadequate (see DiMura v City of Albany, 239 A.D.2d 828, 657 N.Y.S.2d 844 [3d Dept 1997]; Johnson v Johnson Chem. Co., 183 A.D.2d 64, 588 N.Y.S.2d 607 [2d Dept 1992]). However, a manufacturer has no duty to warn product users of dangers that are obvious, readily discernable or apparent (see Martino v Sullivan's of Liberty, 282 A.D.2d 505, 722 N.Y.S.2d 884 [2d Dept 2001]; Pigliavento v Tyler Equip. Corp., 248 A.D.2d 840, 669 N.Y.S.2d 747 [3d Dept], Iv dismissed in part, denied in part 92 N.Y.2d 868, 677 N.Y.S.2d 773 [1998]; Lonigro v TDC Elecs., 215 A.D.2d 534, 627 N.Y.S.2d 695 [2d Dept 1995]). The duty to warn of a specific hazard also does not arise if the injured person, through common knowledge or experience, already is aware of such hazard (see Warlikowski v Burger King, 9 A.D.3d 360, 780 N.Y.S.2d 608 [2d Dept 2004]; Payne v Quality Nozzle Co., 227 A.D.2d 603, 643 N.Y.S.2d 623 [2d Dept 1996], Iv denied 89 N.Y.2d 802, 653 N.Y.S.2d 279 [1996]; Banks v Makita, U.S.A., 226 A.D.2d 659, 641 N.Y.S.2d 875 [2d Dept 1996]).
"Failure to warn liability is intensely fact-specific," involving issues such as the obviousness of the risk, the knowledge of the product user, and proximate cause (Liriano v Hobart Corp., supra, at 243, 677 N.Y.S.2d 764; see Brady v Dunlop Tire Corp., 275 A.D.2d 503, 711 N.Y.S.2d 633 [3d Dept 2000]; Rogers v Sears, Roebuck & Co., 268 A.D.2d 245, 701 N.Y.S.2d 359 [1st Dept 2000]). Nevertheless, a court can decide as a matter of law that there was no duty to warn or that the duty was discharged (see Passante v Agway Consumer Prods., 294 A.D.2d 831, 741 N.Y.S.2d 624 [4th Dept 2002], appeal dismissed 98 N.Y.2d 728, 749 N.Y.S.2d 478 [2002]; Bias v Marriott Intl., 251 A.D.2d 367, 674 N.Y.S.2d 78 [2d Dept 1998]; Schiller v National Presto Indus., supra; Jackson v Bomag GmbH, 225 A.D.2d 879, 638 N.Y.S.2d 819 [3d Dept 1996], Iv denied 88 N.Y.2d 805, 646 N.Y.S.2d 985 [1996]; Oza v Sinatra, 176 A.D.2d 926, 575 N.Y.S.2d 540 [2d Dept 1991]). As with a claim of design defect, a plaintiff alleging liability based on a failure to warn must establish that the manufacturer had a duty to warn and that the failure to warn was a substantial cause of the event which produced the injuries (see Banks v Makita, U.S.A., supra; Billsborrow v Dow Chem., 177 A.D.2d 7, 579 N.Y.S.2d 728 [2d Dept 1992]).
Where plaintiffs allege a design defect, the relevant inquiry is whether the product, as designed, was not reasonably safe (see Doomes v Best Tr. Corp., 17 N.Y.3d 594, 935 N.Y.S.2d 268 [2011]; Voss v Black & Decker Mfg. Co., supra). A defectively designed product "is one which, at the time it leaves the seller's hands, is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use, and whose utility does not outweigh the danger inherent in its introduction into the stream of commerce" (Hoover v New Holland N. Am., Inc., supra, at 53-54, 988 N.Y.S.2d 543, quoting Voss v Black & Decker Mfg. Co., supra, at 107, 463 N.Y.S.2d 398 [internal quotations omitted]; see Conte v Orio Bus Indus., Inc., 162 A.D.3d 638, 78 N.Y.S.3d 236 [2d Dept 2018]; Gorbato v v Matfer Group, 136 A.D.3d 745, 26 N.Y.S.3d 92 [2d Dept 2016]).
A plaintiff injured by an alleged defective product seeking damages under a negligence theory must, as in any negligence action, establish the existence of a legal duty of care, a breach of that duty, and damages resulting from such breach (see Micallef v Miehle Co., Div. of Miehte-Goss Dexter, 39 N.Y.2d 376, 384 N.Y.S.2d 115 [1976]; see generally Pulka v Edelman, 40 N.Y.2d 781, 390N.Y.S.2d 393 [1976]; Luina v Katharine Gibbs School N. Y., 37 A.D.3d 555, 830 N.Y.S.2d 263 [2d Dept 2007]). A manufacturer is under a nondelegable duty to design and produce a product that is not defective, and a defectively designed product is one which "is in a condition not reasonably contemplated by the ultimate consumer and is unreasonably dangerous for its intended use" (Robinson v Reed-Prentice Div. of Package Much. Co., supra, at 479, 426 N.Y.S.2d 717). Furthermore, liability for breach of the implied warranty of fitness and merchantability under UCC §§2-314 requires the plaintiff to show that the product at issue was not reasonably fit for the ordinary purposes for which it was intended, and that such product was the proximate cause of his or her injury (see Denny v Ford Motor Co., 87 N.Y.2d 248, 639 N.Y.S.2d 250 [1995]; Wojcik v Empire Forklift, 14 A.D.3d 63, 783 N.Y.S.2d 698 [3d Dept 2004]; Finkelstein v Chevron Chem. Co., 60 A.D.2d 640, 400 N.Y.S.2d 548 [2d Dept 1977], Iv denied 44 N.Y.2d 461, 405 N.Y.S.2d 1025 [1978]).
Here, Sirona has established a prima facie case of entitlement to summary judgment in its favor (see Conte v Orion Bus Indus., Inc., 162 A.D.3d 638, 78 N.Y.S.3d 236 [2d Dept 2018]; see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]). Sirona submits the affidavit of David A. Guido, who avers that he is a professional engineer, licensed in New York, and that he has more than 35 years of experience in the field. He states, within a reasonable degree of engineering certainty, that the CEREC tabletop milling cabinet was safe for its intended use when maintained in a reasonable and expected manner. He avers that the lid was adequately supported by two gas springs, and notes that the springs have a one-year warranty. Mr. Guido avers that the condition of the springs, as described by plaintiff, was consistent with seal wear within the gas spring itself, and that such deterioration is expected over time as the result of a loss in the gas-tight seal. Mr. Guido avers that an on-product label indicating that such a spring would wear over time is not necessary or required, and that there is no applicable code or engineering standard which required such a warning. Mr. Guido avers that a lack of maintenance and sendee over a six year period, and notes that Sirona did not have the responsibility to maintain, inspect, or repair the cabinet or springs.
In his affidavit, Michael A. Dunlap avers that he is an engineer, and that he possesses a bachelor's of science degree in automotive engineering technology, and a masters in management from the University of Michigan. Mr. Dunlap avers that between 1978 and 2002, he was employed as a sales engineer for SUSPA, Inc., which was dedicated to the design and application of gas springs, and that he is familiar with the end uses, sizes, lengths, strokes, and output forces for specific and custom applications of gas springs. Mr. Dunlap opines that the dental cabinet was designed in conformity with good and accepted engineering standards, and was designed as safe for use by intended users in the dental industry. He further opines that the use of dual 1 ION gas springs for the cabinet lid was in conformance with good and accepted engineering practices, and that they were appropriate to use. With respect to the purported loss of pressure in the gas spring, Mr. Dunlap avers that it is unlikely that a lid, such as the lid on the subject cabinet, would fall suddenly and without warning, but would rather either not raise fully open, or will descend partially closed. He avers that routine wear and tear on a gas spring takes place slowly, over time, and provides an obvious warning to the user that the springs are aging and in need of repair or maintenance. He avers that this gradual wear and tear, and the erosion of the performance of the spring, is consistent with plaintiffs testimony of a gradual deterioration over a six to eight month period. Mr. Dunlap opines that the accident was the result of a lack of usual and routine maintenance, and that plaintiff and other office staff had adequate notice to request maintenance from Patterson.
Further, it is undisputed that Dr. Lagner's office had possessed the subject cabinet for approximately six years at the time of plaintiff s injury, and that Dr. Lagner reported no problems with any portion of the cabinet, including the gas springs, to Sirona, Patterson, or Kappler. Plaintiff testified that she began to notice wear and tear on the subject gas springs, that they were not holding the lid up as strongly as before, approximately six to eight months before her accident, and that she reported the condition to Dr. Lagner. Dr. Lagner testified that he could not recall any complaints that plaintiff made to him about the cabinet, and testified that he never made any complaint or request for maintenance to Patterson, or to Sirona or Kappler. The owner of a product does bear the responsibility of maintenance by, among other things, "having it inspected periodically so that worn parts may be replaced" (Hoover v New Holland, Inc., 23 N.Y.3d 41, 59, 988 N.Y.S.2d 543 [2014]). Further, the Mr. Guido and Dunlap opine that there was no defect in the design or the manufacture of the subject cabinet, and that the cabinet was safe for its intended use. Further, Sirona has established that Patterson had the exclusive authority to maintain and repair the subject dental cabinet for Dr. Lagner (see Troy v Grosso, 173 A.D.3d 1110, 100 N.Y.S.3d 880 [2d Dept 2019]).
In opposition, plaintiff fails to raise a triable issue of fact Plaintiff submits the affidavit of Ali M. Sadegh, who avers that he is an engineer licensed in New York. Mr. Sadegli opines, within a reasonable degree of biomechanical and engineering certainty, that there was a defect in the design of the cabinet, specifically in the choice of gas spring, and that the gas springs should have been changed from 1 ION to HON, to support a soft closing of the lid. Mr. Sadegh avers that had the cabinet been properly designed, the springs should have lasted 20 years, or 100,000 openings/strokes. However, there is no definitive evidence in the record of how many times per day the cabinet was opened or closed during its use by all members of the office. Further, Mr. Sadegh avers that on May 4, 2018, more than six years after the plaintiffs accident, he conducted a physical inspection of the subject cabinet, and found that the gas springs did not hold the door when it was released by hand, and that the lid dropped suddenly. He states that the gas springs were "defected" and did not support the weight of the door. However, this assertion, based solely on testing he performed on the subject hood more than six years after the accident, is conclusory and, therefore, insufficient to raise a triable issue as to whether plaintiffs injury was caused by a design defect. "An expert's affidavit proffered as the sole evidence to defeat summary judgment must contain sufficient allegations to demonstrate that the conclusions it contains are more than mere speculation and would, if offered alone at trial, support a verdict in the proponent's favor" (Romano v Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589 [1997]; see Sirianni v Town of Oyster Bay, 156 A.D.3d 739, 66 N.Y.S.3d 524 [2d Dept 2017]).
Accordingly, the motion by Sirona for summary judgment dismissing the complaint as asserted against it is granted. As such, the cross motion by Kappler for, in effect, summary judgment dismissing the complaint as asserted against Sirona is denied, as moot.