Carmona v Mathisson
Annotate this CaseDecided on March 12, 2008
Supreme Court, Bronx County
Juanita Carmona and George Carmona, Plaintiffs,
against
Kevin Ross Mathisson, M.D., Maple Eye Associates LLP, Montefiore Medical Center, "John/Jane Does" R.N., 1 through 3, whose names are unknown, Alcon Laboratories Inc., USA, Alcon Inc., Defendants.
25879/2003
For Defendant Alcon Laboratories, Inc.:
Jill D. Brenner, Esq.
Heidell, Pittoni, Murphy & Bach, L.L.P.
99 Park Avenue
New York, New York 10016
For Defendants Kevin Ross Mathisson, M.D. and Montefiore Medical Center:
Edward M. Tobin, Esq.
Clausen Miller, P.C.
One Chase Manhattan Plaza
New York, New York 10005
For Plaintiff:
Alfred L. Odom, Esq.
The Jacob D. Fuchsberg Law Firm, LLP
500 Fifth Avenue
New York, New York 10110
Lucindo Suarez, J.
Upon the notice of motion dated May 21, 2007, the affirmation and exhibits in support thereof and Alcon Laboratories, Inc.'s memorandum of law; the July 21, 2007 affirmation in opposition of defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D. and the exhibit annexed thereto; plaintiffs' September 18, 2007 affirmation in opposition; the September 25, 2007 reply affirmation; the order of this court dated November 21, 2007 directing defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D. to reveal the name of their expert witness to the other parties and stating that upon the failure to comply, this court would consider the motion without considering the affidavit of their non-medical expert; the order of this court dated January 22, 2008 denying the motion of defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D. for a protective order, directing them to advise their adversaries of the name of their expert witness and stating that upon the failure to comply, this court would consider the motion without considering the affidavit of their non-medical expert; the failure of defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D. to furnish this court with proof of such compliance; and due deliberation; the court finds:
This action is based upon an injury which plaintiff Juanita Carmona ("plaintiff") suffered on October 24, 2001 during eye surgery performed by defendant Kevin Ross Mathisson, M.D. George Carmona sues derivatively. It is alleged that during the surgery, Dr. Mathisson utilized an instrument known as a Series 20000 Legacy phacoemulsification device ("STTL") manufactured by defendant Alcon Laboratories, Inc. ("Alcon"), s/h/a Alcon Laboratories Inc., USA and Alcon Inc., which caused a burn wound to plaintiff's cornea. Plaintiffs allege strict liability, negligence, failure to warn, design defect and manufacturing defect. Alcon moves for summary judgment dismissing the complaint as against it upon the grounds: that the breach of warranty claim is time-barred; that the failure to warn claim is barred by the "learned intermediary" doctrine; that there is no evidence that the instrument caused plaintiff's injury; and that there is no evidence of a design or manufacturing defect.
The cause of action for breach of warranty accrued when the item was sold to Montefiore [*2]Medical Center in 1996, so that Alcon asserts that this action, commenced in October 2003 is time-barred pursuant to the four-year statute of limitations of Uniform Commercial Code §2-725. See Richard A. Rosenblatt & Co., Inc. v. Davidge Data Systems Corp., 295 AD2d 168, 743 NYS2d 471 (1st Dep't 2002). Plaintiffs have failed to raise a triable issue of fact with respect to the time-bar.
Under New York law it was Alcon's duty to provide adequate warnings to Dr. Mathisson as the learned intermediary, which duty it fulfilled, as demonstrated in the operator's manual for the STTL.Plaintiffs cannot demonstrate that any failure to warn was a failure to warn the medical community, not the patient. See Mulhall v. Hannafin, 45 AD3d 55, 841 NYS2d 282 (1st Dep't 2007). Plaintiffs have not raised a triable issue that the warnings contained in the STTL operator's manual were inadequate.
Alcon's assertion that there is no evidence that the STTL caused plaintiff's injuries is without
merit. The transcript of the deposition testimony of Dr. Mathisson, as well as his operative
report, and the transcript of the deposition testimony of Aleksandr Avakov dated October 7,
2004, constitute evidence that the STTL caused plaintiff's injuries.
It is well settled that under the doctrine of strict products liability, a manufacturer of
a defective product will be liable to a person injured by the defective product, if the defect was a
substantial factor in bringing about the injury, where the product is being used at the time of the
injury for the purpose and in the manner normally intended. See Codling v. Paglia, 32
NY2d 330, 337, 298 NE2d 622, 625, 345 NYS2d 461, 465 (1973). Alcon had the burden of
establishing as a matter of law that there was no defect in the design or manufacture of the
device. See Ramos v. Howard
Industries, Inc., 38 AD3d 1163, 831 NYS2d 615 (4th Dep't 2007). Alcon failed to
demonstrate that the STTL, as designed and manufactured, was not defective. See Call v. Banner Inc., 45 AD3d
1470, 846 NYS2d 827 (4th Dep't 2007). The evidence presented, including, inter
alia, the affidavit of Douglas Fanney ("Fanney"), a licensed professional engineer, and the
transcript of the deposition testimony of Ira Greenberg, as well as his report dated December 3,
2001, fails to satisfy Alcon's burden. Fanney states that the STTL is designed so that an alarm
will sound if aspiration is blocked. There is no evidence that any alarm sounded on the STTL
when Dr. Mathisson noted that aspiration completely stopped. Fanney does not explain how the
heat buildup which caused plaintiff's corneal burn occurred, although he states in conclusory
fashion that it was not due to a manufacturing or design defect. Nor does Fanney discuss the lack
of evidence of an alarm sounding when the aspiration stopped during plaintiff's surgery. Fanney
stated that if the STTL is not functioning properly, a warning will be displayed on the screen;
however, there is no evidence presented that any such warning appeared on the screen when Dr.
Mathisson noted that the machine was not aspirating. Fanney also states that the ultrasound
function of the STTL will not work unless all parts are functioning properly; however, there is
evidence that the ultrasound was functioning at the time of plaintiff's injury, despite the evidence
that the machine was not properly aspirating. This circumstantial evidence that the STTL did not
function as it was intended is sufficient to raise a triable issue of fact. See Vincenty v. Cincinnati, Inc., 25
AD3d 463, 807 NYS2d 92 (1st Dep't 2006).
Ira Greenberg stated at his deposition that when he tested the machine on December 3, 2001, he was unable to find anything wrong with the system. This evidence does not explain why the aspiration stopped during plaintiff's surgery, nor does it establish that the machine did not have a design or manufacturing defect. Fanney states in his affidavit that it is difficult to [*3]imagine how a machine malfunction could result in any improper aspiration, that occlusions may occur if the vacuum setting is too low, and that the surgeon needs to manage the probe tip to clear blockages as they may occur during the phacoemulsification. These statements are not dispositive, since Fanney provides no evidence of what the vacuum setting was in this matter, nor any evidence that there were occlusions, nor any evidence that the probe tip was not properly managed in this case.
Pursuant to the order of this court dated January 22, 2008 denying a protective order to defendants Montefiore Medical Center and Kevin Ross Mathisson, M.D., this court has not considered the affidavit which they submitted for in camera inspection, as the copies furnished to the other parties were not in admissible form.
Accordingly, it is
ORDERED, that the motion of defendant Alcon Laboratories, Inc., s/h/a Alcon Laboratories Inc., USA and Alcon Inc., for summary judgment dismissing the complaint as against it is granted, solely to the extent that the causes of action against defendant Alcon Laboratories, Inc. for breach of warranty and for failure to warn are dismissed, and the motion is otherwise denied; and it is further
ORDERED, that the Clerk of the Court is directed to enter judgment in favor of defendant Alcon Laboratories, Inc. dismissing plaintiffs' causes of action against it for breach of warranty and for failure to warn.
This constitutes the decision and order of the court.
Dated: March 12, 2008
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