Blandino v Ceragem Inc. (2009 NY Slip Op 51901(U))

Blandino v Ceragem Inc.

2009 NY Slip Op 51901(U) [24 Misc 3d 1246(A)]

Decided on September 9, 2009

Supreme Court, Kings County

Schneier, J.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

In this personal injury products liability action, defendant Ceragem International, Inc. ("Ceragem") moves, pursuant to CPLR § 3212, for summary judgment dismissing the complaint against it and for an Order, "requiring Jade & Health Products Inc. and/or Ceragem Inc. to defend and indemnify Ceragem International, Inc. "pursuant to their obligations set forth in its agreement with" Ceragem International Inc.

Ceragem manufactures the Ceragem Thermal Massager. The Thermal Massager is a bed-like device equipped with projectors that roll up and down the length of the user's body. These projectors provide heat and a thermal massaging action to the user. The projectors can operate in an automatic mode or a manual mode depending on which mode is chosen on the remote control. In the automatic mode, the projectors move up and down the user's back in a pre-programmed pattern. In the manual mode the projectors remain stationary until the user operates the remote control to move the projectors up or down.

Defendants Jade & Health Products, Inc. and Ceragem, Inc. (collectively, "Jade"), operated a sales center at 93-30 Roosevelt Avenue, Suite 4B, Jackson Heights, New York, where the Thermal Massager was sold.

On October 13, 2004, plaintiff, Adilia Blandino, attended a sales session at Jade. Plaintiff watched a video and attended a lecture on the use of the Thermal Massager and then used it. Plaintiff alleges that after ten minutes on the Thermal Massager, she began to feel a burning sensation in her buttocks, and that after a total of 15 minutes of lying on the Thermal Massager, she sustained severe burns on her buttocks.

The Thermal Massager that the plaintiff was using was manufactured by Ceragem and was sold to Jade on or about February 1, 2004. Plaintiff's products liability claims against Ceragem are that the Thermal Massager bed was defectively manufactured and/or defectively designed and/or that the Thermal Massager's warnings were inadequate.

On or about October 27, 2003, Jade executed a Distribution and Licensing Agreement with Ceragem which obligates Jade only to defend and indemnify Ceragem for all damages "arising out of the acts or omissions of the Licensee (Jade)."

Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v Kirchoff, 14 AD3d 493 [2nd Dept 2005]). "Issue finding, rather than issue determination is the court's function. If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied." (Celardo v Bell, 222 AD2d 547 [2nd Dept 1995]).

A defendant moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact. (Alverez v Prospect Hosp., 68 NY2d 320 [1986]); Napolitano v. Suffolk County Dept. of Public Works, 2009 NY Slip Op. 06319 [2d Dept]). Once the defendant has satisfied this obligation, the burden shifts and the plaintiff in opposing the motion must now demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557, 560 [1980]).

"A party injured as a result of a defective product may seek relief against the product manufacturer or others in the distribution chain if the defect was a substantial factor in causing the injury" (Speller v Sears, Roebuck & Co.,100 NY2d 38, 41 [2003]). "A product may be defective when it contains a manufacturing flaw, is defectively designed or is not accompanied by adequate warnings for the use of the product" (Liriano v Hobart Corp., 92 NY2d 232, 237 [1998];

Ceragem moves for summary judgment on the grounds that plaintiff has failed to articulate any specific theories of products liability against Ceragem based upon defective design, defective manufacture or failure to warn.

Ceragem submits in support of its motion for summary judgment two affidavits by the professional engineer, Dr. Donald E. Allison, who opines in his affidavit of February 9, 2009 in pertinent part:

Dr. Donald E. Allison then opines in his affidavit of June 10, 2009 in pertinent part:

Ceragem has met its initial prima facie burden of establishing that

it is entitled to summary judgment as a matter of law.

Ceragem argues that plaintiff has failed to adduce any evidence that the Thermal Massager was defective as an unintended result of the manufacturing process. However, in a products liability case a plaintiff may proceed in the absence of evidence identifying a specific manufacturing flaw if the plaintiff proves that the product did not perform as intended and excludes all other causes for the product's failure that are not attributable to the defendant manufacturer (Speller v Sears, Roebuck & Co., supra).

Plaintiff submits in opposition, the deposition testimony of the plaintiff and the affidavit of the professional engineer, Eric Heiberg.

Nowhere in the affidavit of Eric Heiberg does he articulate the existence of any manufacturing defect in the Thermal Massager bed or does he exclude any causes for the alleged product failure. Thus, plaintiff in her opposition to Ceragem's prima facie showing of entitlement to summary judgment as a matter of law fails to raise any triable issue of fact to substantiate her claim of a manufacturing defect. Accordingly, this claim is dismissed.

Ceragem's next argument is that it is entitled to summary judgment on plaintiff's design defect claim because there is no evidence that a safer, feasible design alternative existed at the time the thermal massager was manufactured. In opposition, in the affidavit of the professional engineer, Eric Heiberg, he opines "within a reasonable degree of engineering certainty" that the subject thermal massager was defectively designed because there was no limit on the time that the heat projectors remain in any one location in manual mode. He states "had Ceragem limited the time that the projectors remain in any one location to less than 3 minutes, when in the manual mode this incident would not occurred." In his affidavit, he also notes that Ceragem was obviously aware of the need to limit the [*4]projectors to a maximum of 3 minutes in any one location because the warning printed on the remote control says as much. Mr. Heiberg also declares "within a reasonable degree of engineering certainty" that "alternate, safer designs were feasible" and available to Ceragem. He notes that in the automatic mode, the manufacturer limits the time that the projectors remain in any location to less than 3 minutes. He states that the defendant "could have employed the same technology to limit the time that the projectors remain in any one location in manual mode as well."

Eric Heiberg in his affidavit also opines, "within a reasonable degree of engineering certainty" that "Ms Blandino's injuries are consistent with the bed being in the manual mode at the time of the incident".

Ceragem argues that the Heiberg affidavit should not be considered because: "[a] plaintiff cannot defeat an otherwise proper motion for summary judgment by asserting a new theory of liability for negligence for the first time in opposition to the motion" (Araujo v. Brooklyn Martial Arts Academy, 304 AD2d 779, 780 [2d Dept 2003], quoting, Winters v St. Vincent's Med. Ctr. of Richmond, 273 AD2d 465 [2d Dept 2000]. In Araujo, the plaintiff alleged, for the first time in opposition to the summary judgment motion, that his slip and fall was caused by a defective handrail. The plaintiff had previously alleged that his accident was caused by a wet spot on the stairs. Thus, the allegation raised in the Araujo opposition papers was not only new, it was inconsistent with her previous position.

Furthermore, Araujo was a slip and fall case where the plaintiff should have knowledge of how the accident occurred. In a products liability case, such as this one, the mechanism of the injury is only apparent after an examination by a trained specialist. Thus, the theory of liability set forth by the plaintiff in her opposition papers is not new within the meaning of Araujo.

Ceragem also argues that Heiberg's affidavit should not be considered because it is not based on facts contained in the record. It is "settled and unquestioned law that opinion evidence must be based on facts in the record or personally known to the witness" (Simo v. New York City Transit Authority, 13 AD3d 609 [2d Dept 2004], quoting, Cassano v. Hagstrom, 5 NY2d 643, 646 [1959]. Ceragem does not question Heiberg's assertion that the projector's were capable of remaining in place for more than 3 minutes while in manual mode. Rather, Ceragem argues that the evidence establishes that the massager was not in manual mode at the time of plaintiff's accident. This is a question of relevance, not admissibility. [*5]

Accordingly, the affidavit of Eric Heiberg is properly before the Court and is sufficient to establish the existence of a triable issue of fact as to whether or not a safer, feasible design alternative existed.

Ceragem also moves to dismiss the claims based upon a failure to warn. In order too succeed on a failure-to-warn claim, a plaintiff is "required to prove that the product did not contain adequate warnings and that the inadequacy of those warnings was the proximate cause of the injuries" (Mulhall v. Hannafin, 45 AD3d 55, 58 [1st Dept 2007]). Ceragem argues that the alleged failure to warn was not a proximate cause of plaintiff's injuries because any warning would have been superfluous because plaintiff alleges that she obeyed the directions of Jade's employees to remain on the massager despite feeling a burning sensation. However, whether the warnings which accompany a product are adequate is usually a question of fact for the jury (Johnson v. Johnson Chem. Co., 183 AD2d 64 [2d Dept 1992]).

In the instant case, Eric Heiberg in his affidavit opines "within a reasonable degree of engineering certainty" that:

Accordingly, the affidavit of Eric Heiberg, is sufficient to establish the existence of a triable issue of fact as to the adequacy of the warning accompanying the Thermal Massager bed.

Lastly, Ceragem argues that plaintiff's misuse of the Thermal Massager vitiates her claims of manufacturing or design defect pursuant to the Court of Appeals precedent in Robinson v Reed (49 NY2d 47 [1980]), This is a mischaracterization of the Robinson holding; the Robinson Court did not hold that a misuse of the product alone will defeat claims of strict products liability.

Ceragem moves for contractual indemnification from Jade pursuant to its Distributorship and Licencing Agreement with Jade. "A court may render a conditional judgment on the issue of indemnity pending determination of the primary action in order that the indemnitee may obtain the earliest possible determination as to the extent to which he or she may expect to be reimbursed [*6]provided that there are no issues of fact concerning the indemnitee's active negligence" (George v. Marshalls of MA, Inc., 12 NY3d 931, 932 [2d Dept 2009]). In the instant case, there are issues of fact concerning Ceragem's active negligence. Accordingly, this motion is denied.

Based on the foregoing, defendant, Ceragem International, Inc.'s motion is granted only to the extent of dismissing plaintiff's claim of a manufacturing defect and is denied in all other respects.