Opinion
21-cv-5174 (JGK)
08-02-2024
CARMELO LEON JR., ET AL., Plaintiffs, v. UNITED INDUSTRIES CORPORATION, ET AL., Defendants.
MEMORANDUM OPINION AND ORDER
John G. Koeltl, United States District Judge
The plaintiffs -- Carmelo Leon and Wanda Leon -- brought this action against the defendants -- United Industries Corporation (“UIC”), Spectrum Brands, Inc. (“SBI”), Cutter, and Home Depot U.S.A., Inc. (“Home Depot”) -- in New York State Supreme Court, Bronx County. Compl. at 8, ECF No. 1-1. Mr. Leon asserted claims for strict products liability and negligence for design defect, manufacturing defect, and failure to warn, as well as claims for breach of various express and implied warranties. Id. at 12-15. Mrs. Leon asserted a claim for loss of consortium. Id. at 15. The plaintiffs' claims arise from burn injuries Mr. Leon sustained during an incident involving a mosquito-repelling candle manufactured and sold by the defendants.
On June 10, 2021, Defendants UIC and SBI removed the action to this Court. See Notice of Removal at 1, ECF No. 1. On October 6, 2023, the defendants moved to exclude the plaintiffs' expert testimony and for summary judgment. ECF No. 42. For the following reasons, the defendants' motions are granted.
I.
The following facts are based on the parties' Rule 56.1 statements, counterstatements, and supporting papers, and are undisputed unless otherwise noted.
On or about May 2020, the plaintiffs' daughter, Alexandra Leon, purchased a mosquito-repelling candle called the “Cutter CitroGuard Candle” (the “Cutter Candle”) at a Home Depot location in the Bronx. Defs.' Rule 56.1 Statement ¶¶ 1, 5, ECF No. 43-1. The plaintiffs argue that SBI designed and manufactured the Cutter Candle. Pls.' Rule 56.1 Statement ¶ 4, ECF No. 49-2. SBI denies it designed or manufactured the Cutter Candle. Defs.' Rule 56.1 Statement ¶ 4. Alexandra Leon then stored the Cutter Candle uncovered in an outdoor shed, where it remained until August 1, 2020. Id. ¶ 6.
On August 1, 2020, the plaintiffs attended an outdoor gathering at Alexandra Leon's home. Id. ¶ 7. The Cutter Candle was burning on the ground next to Mr. Leon, who was sitting at an outdoor table. Id. ¶ 8. The match used to light the Cutter Candle was in the container near the flames. Id. ¶ 9. The Cutter Candle suddenly started to “sizzle” and caught fire. Id. ¶ 10. Another guest at the gathering, Howell Woods, tried to move the Cutter Candle by pushing it with his foot. Id. ¶ 11. As a result, the Cutter Candle tipped over and spilled hot wax onto Mr. Leon, causing burn injuries to both of Mr. Leon's legs. Id. ¶ 12.
At the time Mr. Leon was injured, the Cutter Candle's label, including its warnings, was approved by the Environmental Protection Agency (“EPA”) under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”) and complied with FIFRA's labeling requirements. Id. ¶¶ 3, 14-17. The label provides, among other things: “Keep candle free of matches or other foreign matter, which may present a fire hazard” and “Do not move candle while burning or before wax hardens.” Id. ¶ 18.
II.
The standard for granting summary judgment is well established. “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the initial burden of “informing the district court of the basis for its motion” and identifying the materials in the record that “it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). At the summary judgment stage, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The substantive law governing the case will identify those facts that are material and, “[o]nly 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).
Unless otherwise noted, this Memorandum Opinion and Order omits all internal alterations, citations, footnotes, and quotation marks in quoted text.
III.
A.
The defendants initially move to exclude the testimony of the plaintiffs' expert, Courtland Imel. See Mem. of Law in Supp. of Defs' Mot. to Exclude Courtland Imel's Test. and for Summ. J. (“Mot. for Summ. J.”) at 13-14, ECF No. 44.
A trial judge's duty under the Federal Rules of Evidence is to “ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589 (1993). In determining whether to allow expert testimony, the Court considers (1) the qualifications of the proposed expert, (2) whether each proposed opinion is based upon reliable data and reliable methodology, and (3) whether the proposed testimony would be helpful to the trier of fact. See Nimely v. City of New York, 414 F.3d 381, 397 (2d Cir. 2005); see also Fed.R.Evid. 702. In this case, the defendants challenge Imel's testimony on the second factor: whether the proposed expert opinion is based upon reliable data and methodology.
Reliability requires a “sufficiently rigorous analytical connection” between the methodology used and “the expert's conclusions.” Nimely, 414 F.3d at 396. Even if an expert is qualified based on specialized experience, the expert must still base the expert's opinion on “sufficient facts or data, and must explain how that experience leads to the conclusion reached, why that experience is a sufficient basis for the opinion, and how that experience is reliably applied to the facts[.]” Emig v. Electrolux Home Prods. Inc., No. 06-cv-4791, 2008 WL 4200988, at *8 (S.D.N.Y. Sept. 11, 2008). While testing is not an absolute prerequisite for admitting an expert opinion, it is usually critical to show that an expert “adhered to the same standards of intellectual rigor that are demanded in their professional work.” Jinn v. Sig Sauer, No. 20-cv-1122, 2023 WL 5972507, at *15 (S.D.N.Y. Sept. 13, 2023).
Imel's expert report contains four general “possible causes for candle fires.” Imel Expert Report at 3, ECF No. 43-13. However, the report does not contain an opinion as to the cause of the candle fire in this case. In fact, “Imel testified . . . that he can test his hypothesis in his lab but had not yet.” Pls.' Rule 56.1 Statement ¶ 51. In Imel's deposition, he confirmed that he “ha[d] not done any work in this case to rule in or rule out any of those . . . possible explanations[.]” Imel Dep. at 4, ECF No. 43-9. Therefore, Imel's opinions are not based on reliable data and methodology.
The plaintiffs argue that Imel “can still test his theories before the time of trial and render an opinion.” Pls.' Mem. of Law in Opp'n to Defs.' Mot. for Summ. J. (“Pls.' Opp'n”) at 7, ECF No. 49. However, Federal Rule of Civil Procedure 26(a)(2)(B) provides that an expert “disclosure must be accompanied by a written report . . . [that] must contain: a complete statement of all opinions the witness will express and the basis and reasons for them; [and] the facts or data considered by the witness in forming them[.]” Fed.R.Civ.P. 26(a)(2)(B)(i)-(ii). Moreover, for a court to determine whether an expert opinion is admissible, that “opinion requires some explanation as to how the expert came to his conclusion and what methodologies or evidence substantiate that conclusion.” Riegel v. Medtronic, Inc., 451 F.3d 104, 127 (2d Cir. 2006), aff'd, 552 U.S. 312 (2008). Therefore, it is at this stage of the litigation that the Court requires information about the tests and data underlying Imel's testimony. The time for discovery in this case has passed, and Imel cannot now go back and conduct the testing to support his hypotheses.
Accordingly, the defendants' motion to exclude Imel's expert testimony is granted.
B.
i.
The defendants also move for summary judgment on the plaintiff'sstrict products liability claim for design defect. See Mot. for Summ. J. at 18-19.
Any reference to “the plaintiff” refers to Mr. Leon.
Under New York law, “to establish a prima facie case in strict products liability for design defects, the plaintiff must show that the manufacturer breached its duty to market safe products when it marketed a product designed so that it was not reasonably safe and that the defective design was a substantial factor in causing plaintiff's injury.” Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 208 (N.Y. 1983).
The design of a product is “not reasonably safe” if “a reasonable person would conclude that the utility of the product did not outweigh the risk inherent in marketing a product designed in that manner.” Id. “This standard demands an inquiry into such factors as (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 but remains functional and reasonably priced, (6) the degree of awareness of the product's potential danger that can reasonably be attributed to the injured user, and (7) the manufacturer's ability to spread the cost of any safety-related design changes.” Denny v. Ford Motor Co., 662 N.E.2d 730, 735 (N.Y. 1995) (quoting Voss, 450 N.E.2d at 208-09).
“The plaintiff . . . is under an obligation to present evidence that the product, as designed, was not reasonably safe because there was a substantial likelihood of harm and it was feasible to design the product in a safer manner.” Voss, 450 N.E.2d at 208.
The defendants argue that the plaintiff's design defect claim fails because the plaintiff fails to satisfy his burden to present expert testimony that a feasible alternative design exists for the candle. See Mot. for Summ. J. at 18-19.
“[N]on-expert testimony may be sufficient to establish a feasible alternative design where the economic and technological feasibility of an alternative design is obvious or capable of being understood by laypersons through the use of non-expert evidence.” Nemes v. Dick's Sporting Goods, Inc., 521 F.Supp.3d 328, 337 (S.D.N.Y. 2021)(collecting cases). However, “often times a plaintiff cannot withstand summary judgment without expert testimony” because “New York courts uniformly rule that competent, non-conclusory expert testimony is needed in cases involving more complex design issues.” Id. at 337-38 (quoting Guarascio v. Drake Assocs. Inc., 582 F.Supp.2d 459, 463 (S.D.N.Y. 2008)(collecting cases)).
In this case, the plaintiff's expert, Courtland Imel, fails to propose a feasible alternative design -- or any changes to the design or manufacturing process -- that would make the candle safer while maintaining its functionality. See Imel Expert Report at 2-6. Nor does the plaintiff provide any other evidence of the economic and technological feasibility of an alternative design that is obvious or capable of being understood by laypersons through the use of non-expert evidence.
Accordingly, the defendants' motion for summary judgment dismissing the plaintiff's strict liability claim based on design defect is granted.
ii.
The defendants also move for summary judgment on the plaintiff's strict products liability claim for manufacturing defect. See Mot. for Summ. J. at 19.
Under New York law, “[t]o . . . prove a manufacturing flaw under . . . strict liability, the plaintiff must show that a specific product unit was defective as a result of some mishap in the manufacturing process itself, improper workmanship, or because defective materials were used in construction, and that the defect was the cause of plaintiff's injury.” Colon ex rel. Molina v. BIC USA, Inc., 199 F.Supp.2d 53, 85 (S.D.N.Y. 2001) (quoting Caprara v. Chrysler Corp., 417 N.E.2d 545, 552-53 (N.Y. 1981)). “[A] manufacturing flaw exists when the unit in question deviates in quality and other performance standards from all of the other identical units.” Id. (citing Perazone v. Sears, Roebuck & Co., 515 N.Y.S.2d 908, 911 (App. Div. 1987)).
“Where, as [in this case], the product itself is not available for inspection, a plaintiff may be able to prove a manufacturing defect based on circumstantial evidence.” Tears v. Bos. Sci. Corp., 344 F.Supp.3d 500, 510-11 (S.D.N.Y. 2018) (citing Speller ex rel. Miller v. Sears, Roebuck & Co., 790 N.E.2d 252, 254 (N.Y. 2003)). In such cases, the plaintiffs must establish not only that “the product [did] not perform as intended” but also that “the possibility of other causes” has been excluded. Gilks v. Olay Co., Inc., 30 F.Supp.2d 438, 443 (S.D.N.Y. 1998).
“The New York Court of Appeals has described the application of the circumstantial approach as a two-part inquiry[.]” Bozick v. Conagra Foods, Inc., No. 19-cv-4045, 2022 WL 4561779, at *32 (S.D.N.Y. Sept. 28, 2022) (citing Speller, 790 N.E.2d at 255). “It may be inferred that the harm sustained by the plaintiff was caused by a [manufacturing] defect . . . when the incident that harmed the plaintiff: (a) was of a kind that ordinarily occurs as a result of [manufacturing] defect; and (b) was not, in the particular case, solely the result of causes other than [manufacturing] defect existing at the time of sale or distribution.” Id.
In this case, the plaintiff does not proffer any evidence that the Cutter Candle deviated in quality and other performance standards from all of the other units in the same product line. See Pls.' Rule 56.1 Statement ¶¶ 23-28 (“Plaintiff does not have sufficient facts or evidence to determine whether the candles are manufactured in EPA compliant conditions.”).
Nor can the plaintiff prove a manufacturing defect based on circumstantial evidence. The plaintiff does not provide any evidence that the incident was of a kind that ordinarily occurs as a result of a manufacturing defect. See id. Moreover, the plaintiff has not excluded other obvious causes of the incident other than a manufacturing defect, see Pls.' Opp'n at 9-10, namely the match inside the Cutter Candle or the Cutter Candle's being kicked. See Moss Decl. at 14, 16, ECF No. 43-10. Therefore, the plaintiff has failed to present any evidence from which any reasonable jury could conclude that the cause of the incident was a manufacturing defect in the candle.
Accordingly, the defendants' motion for summary judgment dismissing the plaintiff's strict products liability claim based on manufacturing defect is granted.
iii.
The defendants also move for summary judgment dismissing the plaintiff's strict products liability claim based on failure to warn. See Mot. for Summ. J. at 19-21.
“A plaintiff may recover in strict products liability for the manufacturer's failure to warn of the risks and dangers associated with the use of its product. That duty generally extends to warning ultimate consumers of the dangers resulting from the foreseeable use of the product.” Urena v. Biro Mfg. Co., 114 F.3d 359, 365-66 (2d Cir. 1997) (collecting cases). “In order to recover under a failure to warn theory, a claimant must show: (1) that a manufacturer has a duty to warn; (2) against dangers resulting from foreseeable uses about which it knew or should have known; and (3) that failure to do so was the proximate cause of harm.” Quintana V. B. Braun Med. Inc., No. 17-cv-6614, 2018 WL 3559091, at *5 (S.D.N.Y. July 24, 2018). “An act cannot be the substantial cause if the injury would have occurred regardless of the content of defendant's warning.” Figueroa v. Bos. Sci. Corp., 254 F.Supp.2d 361, 370 (S.D.N.Y. 2003). “As part of satisfying those elements, a plaintiff is required to prove that the product did not contain adequate warnings.” Bozick, 2022 WL 4561779, at *35. “When a warning raises no triable questions of fact as to adequacy, however, summary judgment may be granted.” Wu Jiang v. Ridge Tool Co., 764 Fed.Appx. 43, 45 (2d Cir. 2019).
In this case, the plaintiff has failed to describe what additional warning was required and has failed to show that such a warning would have prevented the plaintiff's injury. See Pls.' Opp'n at 12-13. In other words, the plaintiff has not provided any evidence that Mr. Leon would have used the product differently had the defendants given additional warnings. As a result, the plaintiff has failed to satisfy his burden to “show . . that the failure to warn was a substantial cause of the events which produced the injury.” Burke v. Spartanics, Ltd., 252 F.3d 131, 139 (2d Cir. 2001) (quoting Billsborrow v. Dow Chem., 579 N.Y.S.2d 728, 733 (App. Div. 1992)).
In any event, FIFRA preempts any rule that imposes a requirement that diverges from those set out in FIFRA. See Bates v. Dow Agrosciences LLC, 544 U.S. 431, 454 (2005) (citing 7 U.S.C. § 136v). The plaintiff in this case admits that the warnings on the Cutter Candle's label comply with FIFRA. See Defs.' Rule 56.1 Statement ¶ 17; Pls.' Rule 56.1 Statement ¶ 17. To the extent that the plaintiff seeks to propose additional warnings, the plaintiff has failed to explain how those warnings would not be preempted by FIFRA. See Pls.' Opp'n at 12-13.
Accordingly, the defendants' motion for summary judgment dismissing the plaintiff's strict products liability claim for failure to warn is granted.
iv.
The defendants also move for summary judgment dismissing the plaintiff's claims for negligence.
“Under New York law, strict liability and negligence are functionally equivalent.” Cosh v. Atrium Med. Corp., No. 18-cv-8335, 2020 WL 583826, at *2 (S.D.N.Y. Feb. 6, 2020) (citing design defect, manufacturing defect, and failure to warn cases). “Both negligence and strict products liability (under New York Law) require a showing of a product defect . . . [and] that a defect in the product was a substantial factor in causing the injury.” Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 86 (2d Cir. 2006) (citing Fritz v. White Consol. Indus., Inc., 762 N.Y.S.2d 711 (App. Div. 2003)). “[B]ut to show negligence, the plaintiff must also prove that the injury caused by the defect could have been reasonably foreseen by the manufacturer[.]” Id. (citing Robinson v. Reed-Prentice Div. of Package Mach. Co., 403 N.E.2d 440, 443-44 (N.Y. 1980)).
The parties have not briefed the issue of reasonable foreseeability; in fact, the parties do not brief the negligence claims separately from the strict liability claims. See generally Mot. for Summ. J; Pls.' Opp'n. Because the defendants are entitled to summary judgment dismissing the plaintiff's strict liability claims, the defendants are also entitled to summary judgment dismissing the plaintiff's negligence claims.
Accordingly, the Court also grants summary judgment dismissing the plaintiff's negligence claims based on design defect, manufacturing defect, and failure to warn.
v.
The defendants also move for summary judgment dismissing the plaintiff's claims for breach of various express and implied warranties. See Compl. at 12.
“[I]n the case of a counseled party, a court may, when appropriate, infer from a party's partial opposition that relevant claims or defenses that are not defended have been abandoned.” Jackson v. Fed. Exp., 766 F.3d 189, 198 (2d Cir. 2014). Because the plaintiff has not attempted to defend his claims for breach of express and implied warranties in the face of the motion for summary judgement to dismiss all claims, the plaintiff has abandoned his claims for breach of express and implied warranties. See Nemes, 521 F.Supp.3d at 347.
Accordingly, the defendants' motion for summary judgment dismissing the plaintiff's breach of warranty claims is granted.
vi.
Finally, the defendants move for summary judgment dismissing Mrs. Leon's loss of consortium claim. See Mot. for Summ. J. at 1 n.3.
“[A] spouse's cause of action for loss of consortium [does not] exist[] in the common law independent of the injured spouse's right to maintain an action for injuries sustained.” Liff v. Schildkrout, 404 N.E.2d 1288, 1291 (N.Y. 1980). Because the Court grants summary judgment dismissing Mr. Leon's claims, the defendants' motion for summary judgment dismissing Mrs. Leon's loss of consortium claim is granted.
vii.
Finally, the defendants argue that “SBI is independently entitled to summary judgment because it did not manufacture, sell, or distribute the Cutter Candle.” Mot. for Summ. J. at 2. Because the Court grants summary judgment dismissing all of the plaintiffs' claims, it is unnecessary to reach this argument.
CONCLUSION
The Court has considered all of the arguments raised by the parties. To the extent not specifically addressed, the arguments are either moot or without merit. For the foregoing reasons, the defendants' motion to exclude the plaintiffs' expert testimony and motion for summary judgment dismissing all the claims are granted. The Clerk is directed to close ECF No. 42. The Clerk is also directed to enter judgment dismissing this case and closing the case.
SO ORDERED.