Glen Berg, et al., Plaintiffs,andjamie Lubin, et al., Plaintiffs-appellants, v. Underwood's Hair Adaption Process, Inc., et al., and Kanekaamerica Corporation and Monsanto Company,defendants-appellees.kaneka America Corporation and Monsanto Company, Third-partyplaintiffs, v. Christine Underwood, Third-party Defendant, 751 F.2d 136 (2d Cir. 1984)

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U.S. Court of Appeals for the Second Circuit - 751 F.2d 136 (2d Cir. 1984) Argued Dec. 7, 1984. Decided Dec. 26, 1984

Steven Bennett Blau, New York City (Defina & Blau, P.C., New York City, of counsel), for plaintiffs-appellants.

William F. Sondericker, New York City (Olwine, Connelly, Chase, O'Donnell & Weyher, Robert J. Kochenthal, Jr., New York City, of counsel), for defendant-appellee, Kaneka America Corp.

Joseph M. Costello, New York City (Costello & Shea, New York City, of counsel), for defendant-appellee, Monsanto Co.

Before FEINBERG, Chief Judge, and OAKES and NEWMAN, Circuit Judges.


Plaintiffs-appellants were injured in New York when a licensed medical practitioner implanted synthetic fibers into their scalps as a treatment for baldness. They allege that defendants-appellees, who manufactured or assisted in the distribution of the fibers for use in hairpieces, wigs and other products, are liable on theories of strict products liability and negligence for failing to warn of the hazards of this unintended, but foreseeable, misuse. Appellants claim that the duty to warn was particularly strong since appellees had advance knowledge that various practitioners were using the fibers for implants.

The United States District Court for the Southern District of New York, Whitman Knapp, J., initially denied appellees' motion for summary judgment on the ground that the law imposes upon them a duty to "do all that is commercially feasible" to warn of the potential dangers of surgical implantations of the fibers--including, for example, placing "notices in trade journals or warnings on packages of the fibers or on products such as wigs from which the fibers could be extracted." Upon reargument, the court reversed its earlier ruling and granted appellees' motion for summary judgment. The judge concluded that appellees could not have prevented plaintiffs' injuries even with extensive warnings and labels, because the products were widely available from numerous sources, including those with whom appellees had no contact. Even if appellees' distributees had refused to sell the fibers to the doctor who performed the implants, he could have obtained them elsewhere. Thus, appellees could not be faulted for failing to warn their distributees or to place labels on packages. The district court rejected as impractical, and not supported by the case law, plaintiffs' contention that appellees had a duty to warn all possible sources of the product, and the general public, of the potential hazard.

We agree with the district court and find no basis in New York law, which the parties apparently agree is the governing law, for imposition of such a far reaching obligation on appellees. Plaintiffs were injured by a bizarre and deliberate abuse by a licensed medical practitioner of a nonmedical commercial product. In light of the wide availability of the fibers, and the doctor's apparent disregard of the injurious effects of the implantations, we do not believe a New York court would impose liability on these appellees. The duty to guard against a potential misuse of a product does not extend this far. New York courts have reached similar conclusions in related cases involving appellee Kaneka America Corporation. Sabatini v. Kleiman, et al., No. 4658/80 (N.Y.Sup.Ct., Dec. 5, 1983); Denni v. Kleiman, et al., No. 21760/80 (N.Y.Sup.Ct., Dec. 5, 1983); Tanase v. Underwood, No. 42777/79 (N.Y.Sup.Ct., June 30, 1982); but see, Yanakas v. Underwood, et al., No. 11440/80 (N.Y.Sup.Ct., Aug. 13, 1984).