Plaintiffs move for an in limine ruling on (1) whether Defendants are precluded from introducing evidence at trial of an alleged malfunction of a phacoemulsification machine that Defendant Kevin Roos Mathisson used in performing eye surgery upon Plaintiff Juanita Carmona; and (2) whether Alcon Labortories Inc. (a non-party following earlier dismissal as a defendant by the Appellate Division) can be listed on the verdict sheet for apportionment of damages. This application arises because of the Appellate Division's decision in Carmona v. Mathisson, 54 AD3d 633 (1st Dept. 2008).

Background

Herein Plaintiffs seek financial damages from the remaining defendants collectively for medical malpractice committed at Montefiore Medical Center in Bronx County during the October 24, 2001 cataract operation upon Juanitia Carmona's right eye. Originally, Plaintiffs brought this action against the surgeon, hospital, and Alcon Labortories. Alcon is the developer and manufacturer of the said phacoemulsification machine used in the cataract operation that is the subject of this case (see generally, Lambert v. Park, 597 F.2d 236 [10th Cir. 1979]).

Earlier in this case, the machine's manufacturer moved for summary judgment, dismissing the complaint as it applied to the corporation. In response, this Court (Suarez, J.) granted dismissal only as to causes of action for negligence for failure to warn and for breach of warranty (see, Carmona v. Mathisson, 19 Misc 3d 1124A [Sup. Ct. Bronx 2008]). With respect to the claims alleging strict product liability and negligence based upon manufacturing and design defects, the First Department dismissed those causes of action finding that Alcon was not guilty of negligence because of Plaintiff's failure to meet its burden of proof based upon the evidence then in the record. In this regard, the appellate court determined that Plaintiffs failed to exclude all alternative causes [*2]for the injury (see, Carmona v. Mathisson, 54 AD3d 633, 634 [1st Dept. 2008]). As a result, Alcon was dismissed from the case and the only defendants remaining in this litigation are Dr. Mathisson and Montifiore Medical Center.

Defendant's Opposition

Defendants argue that they cannot be precluded from introducing evidence at trial concerning possible malfunction of the phacoemulsification machine because Alcon was originally a party to this litigation (see generally, Rodi v. Landau, 170 Misc 2d 180 [Sup Ct. Rockland 1996]). Further, they must be permitted to present expert testimony concerning possible malfunction of the machine as an alternative to a finding that they were negligent. Allegedly, this is consistent with Plaintiffs' theory in the case and with Plaintiffs' bill of particulars which specifically alleges equipment malfunction.

Plaintiffs' Position

Plaintiffs argue that collateral estoppel bars Defendants from submitting either expert report concerning Alcon's machine or testimony that relates to the alleged malfunctioning of the machine. Plaintiffs maintain that the Appellate Division found no triable issue of fact existed concerning the machine. Therefore, law of the case and res judicata prohibit Defendants from arguing a malfunction or attempting to introduce any new theory concerning this accident. Stated another way, Plaintiffs say, Defendants have no permissible defense to their claims.

Additionally, beside the fact that the First Department determined that there is no proof of a product defect, Plaintiffs point out that Defendants failed to take any steps to challenge the Appellate Division's order.

Legal Discussion

A motion in limine, by definition, is a "preliminary application," usually made at the beginning of a trial, that certain evidence, claimed to be inadmissible and prejudicial, not be referred to or offered at trial (see generally, Black's Law Dictionary [7th ed. 1999]). Plaintiffs seek a ruling, upon said motion, to preclude Defendants from introducing evidence at trial of an alleged malfunction in the phacoemulsification machine in question. Likewise, Plaintiff seeks to bar Alcon Laboratories from being listed on the verdict sheet as an alternative for apportionment of damages. Plaintiffs base their motion squarely upon the Appellate Division's decision in Carmona v. Mathisson, 54 AD3d 633 [1st Dept. 2008]) which dismissed Alcon Laboratories as a party.

Clearly, both branches of Plaintiffs' motion are intertwined and rooted in the Appellate Division decision. In that opinion, the First Department dismissed the manufacturer as party (citing Ramos v. Howard Indus., Inc.,10 NY3d 218 [2008]) because Plaintiffs failed to exclude all alternative causes for Plaintiff wife's injury in response to Alcon Labortories' successful summary judgment motion (see, Carmona v. Mathisson, 54 AD3d at 634).

Defendants correctly point out that where a remaining defendant seeks to apportion his liability with a non-party, the deciding factor becomes whether Plaintiffs had opportunity to join the nonparty to this litigation (see generally, Rodi v. Landau, supra.).^[FN1] The real test is whether Plaintiffs had opportunity to obtain personal jurisdiction over the party whose fault would be considered for apportionment purposes (see, Duffy v. County of Chautauqua, 225 AD2d 261 [4th Dept. 1996]).A finding that Alcon Laboratories should remain as a party for purposes of damage apportionment is consistent with the First Department's holding in Kharmah v. Metropolitan Chiropractic Center, 288 AD2d 94 [1st Dept. 2001]). In Kharmah, the Appellate Division found that [*3]equity required that certain co-defendants remain as apportionment sources when the trier of fact allocated medical malpractice damages even though the medical practitioners had filed for bankruptcy relief (Id.) (see also, Tancredi v. AC & S, Inc. [In re NY City Asbestos Litig.], 6 AD3d 352 [1st Dept. 2004]) (but see, In re Brooklyn Navy Yard Asbestos Litig., 971 F.2d 831 [2nd Cir. 1992]). Inability to obtain jurisdiction because of factors such as the Workers' Compensation Law (and presumably bankruptcy) does not constitute inability to obtain jurisdiction for apportionment purposes (see generally, Duffy v. County of Chautauqua, supra.; Rezucha v. Garlock Mech. Packing Co., 159 Misc 2d 855 [Sup. Ct. Broome 1993] [proof of state's culpability admissible and proportional liability share should be included when deciding to reduce any defendant's liability for non-economic loss]).

Conclusion

When the Appellate Division dismissed Alcon Laboratories because Plaintiffs failed to exclude all alternative causes for the injury, the Court did not substantively decide the issue of Alcon's negligence (see, Carmona v. Mathisson, 54 AD3d 633 [1st Dept. 2008]). Rather, the Appellate Division found that Plaintiffs failed their burden of proof.

The exception justifying excluding an entity from damage apportionment where the Court cannot obtain jurisdiction over that party does not apply to the facts at hand (see generally, Marsala v. Weinraub, 208 AD2d 689 [2nd Dept. 1994]; Antaki v. Lerman, __ Misc 2d __, 2008 NY Misc. Lexis 6164 [Sup. Ct. Nassau 2008]).^[FN2] The Court finds that the jury is to be permitted to decide damage apportionment including the non party Alcon Laboratories because that entity was originally a party to this action (see, Zakshevsky v. New York, 149 Misc 2d 52 [Sup. Ct. Kings 1990]). Equity and the interests of justice require that Defendants be permitted to introduce evidence at trial of any malfunction in the phacoemulsification machine that was used by Dr. Mathisson in performing eye surgery upon Juanita Carmona. Likewise, justice requires that the verdict sheet list Alcon Laboratories when the jury apportions damages.

The foregoing constitutes the decision and order of this Court.

Dated: Bronx, New York

March 23, 2009

___________________________________Hon. DOMINIC R. MASSARO, JSC