Barbaro v Eastman Kodak Co.

[*1] Barbaro v Eastman Kodak Co. 2010 NY Slip Op 50246(U) [26 Misc 3d 1224(A)] Decided on January 28, 2010 Supreme Court, Nassau County Murphy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 28, 2010
Supreme Court, Nassau County

Joseph Barbaro and Dale Barbaro, Plaintiff(s),

against

Eastman Kodak Company, Defendant(s).



13400/07



Attorney for Plaintiffs Joseph and Dale Barbaro

Paul Ajlouny & Assoc., P.C.

By: Neil Flynn, Esq.

320 Old Country Rd., Suite 205

Mineola, NY 11561

Attorney for Defendant Eastman Kodak Co.

Ward Norris Heller & Reidy LLP

Scott R. Jennette, Esq.

300 State St.

Rochester, NY 14614

Karen V. Murphy, J.

This motion by the defendant Eastman Kodak Company ("Kodak") for an order pursuant to CPLR § 3212 granting it summary judgment dismissing the complaint against it in its entirety or, in the alternative, an order pursuant to CPLR § 3212(e) granting it partial summary judgment dismissing plaintiffs' claim for dermal injuries, breach of warranty and failure to warn is granted as provided herein.

In this action commenced on or about August 1, 2007, the plaintiffs seek to recover damages for personal injuries the plaintiff Joseph Barbara ("plaintiff") allegedly suffered as [*2]a result of his exposure to Kodak products during the course of his employment as a medical service technician from 1986 through August 2006. More specifically, the plaintiff claims that he was exposed by inhalation and topical means to Kodak Liquid Developer Systems Cleaner [CAT 1013176] ("Developer Cleaner") and Kodak Fixer Wash Systems Cleaner [CAT 1395110] in both powder and/or liquid form on a daily basis during the course of his employment as a Darkroom Technician for Coney Island Hospital in 1979, as a Field Service Engineer for Xonics Medical Systems from 1983 til 1986, and as a Biomedical Technician for James J. Peterson VA-Medical Center ("VA Medical Center") from 1986 til 2006. The plaintiff has identified "sodium dichromate" as the sole causative chemical agent. The Developer Systems Cleaner is the only product that the plaintiff has identified as having caused his injuries that contains that agent. The plaintiff alleges that although he used Kodak's products in conformity with its guidelines, instructions and warnings, he nevertheless developed swollen hands beginning on January 18, 1996, skin rashes beginning on May 20, 1998 and ultimately lung cancer with associated respiratory conditions in 2006. The plaintiff has advanced claims sounding in negligence, breach of warranty, failure to warn and strict products liability.

Kodak seeks summary judgment dismissing the complaint on the grounds that the Developer Systems Cleaner did not cause the plaintiff's injuries and/or was time-barred. In the alternative, Kodak seeks partial summary judgment dismissing the plaintiffs' claims for dermal injuries, breach of warranty and failure to warn.

"On a motion for summary judgment pursuant to CPLR § 3212, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Sheppard-Mobley v. King, 10 AD3d 70, 74, 778 NYS2d 98 (2d Dept. 2004), aff'd. as mod., 4 NY3d 627 (2005), citing Alvarez v. Prospect Hosp., 68 NY2d 320, 324, 501 NE2d 572, 508 NYS2d 923 (1986); Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, 476 NE2d 642, 487 NYS2d 316 [1985]). "Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." (Sheppard-Mobley v. King, supra ; Alvarez v. Prospect Hosp., supra ; Winegrad v. New York Univ. Med. Ctr., supra ). Once the movant's burden is met, the burden shifts to the opposing party to establish the existence of a material issue of fact. Alvarez v. Prospect Hosp., supra . The evidence presented by the opponents of summary judgment must be accepted as true and they must be given the benefit of every reasonable inference. (See, Demshick v. Community Housing Management Corp., 34 AD3d 518, 521, 824 NYS2d 166 (2d Dept., 2006), citing Secof v. Greens Condominium, 158 AD2d 591, 551 NYS2d 563 [2d Dept., 1990]).

In a toxic tort case, whether the action is pleaded in strict products liability, breach of warranty or negligence, in order to prove causation, a plaintiff must establish his or her [*3]"exposure to a toxin, that the toxin is capable of causing the particular illness (general causation) and that plaintiff was exposed to sufficient levels of the toxin to cause the illness (specific causation)." (Parker v. Mobil Oil Corp., 7 NY3d 434, 448, 857 NE2d 1114, 824 NYS2d 584 (2006), rearg den., 8 NY3d 828 (2007), citing McClain v. Metabolife Intl., Inc., 401 F.3d 1233, 1241, (11th Cir. 2005); Wright v. Willamette Indus., Inc., 91 F.3d 1105, 1106 (8th Cir 1996); Clarke v. Helene Curtis, Inc., 293 AD2d 701, 742 NYS2d 325 (2d Dept., 2002), citing Tardelli v. RJR Nabisco, 178 AD2d 737, 576 NYS2d 965 (3d Dept., 1991); see also, Zaslowsky v. J.M. Dennis Const. Co., 26 AD3d 372, 810 NYS2d 484 [2d Dept., 2006]). "[I]n the context of [a] motion for summary judgment to dismiss the complaint . . . [t]he defendant is required to prove the negative, to wit, that the plaintiff's injuries, whatever they may be, could not have been caused by the toxic material in question." (Lopez v. Gem Gravure Co., Inc., 50 AD3d 1102, 1108, 858 NYS2d 226 (Lifsen, J., dissenting), citing Cinquemani v. Old Slip Assoc., LP, 43 AD3d 1096, 1097-1098 [2d Dept., 2007]). "To defeat such a motion, . . . [t]he plaintiff need only show that an issue of fact exists as to whether the toxic material in question might be a cause of [his] injuries. (Lopez v. Gem Gravure Co., Inc., supra , citing Micelli v. Purex Corp., 84 AD2d 562, 443 NYS2d 269 [2d Dept., 1981]). "Therefore, the plaintiff must establish through an expert that the injuries in question could be attributable to the exposure to the toxic material, leaving to the trier of fact the ultimate determination whether there was exposure which did, in fact, cause the plaintiff's injuries." (Lopez v. Gem Gravure Co., Inc., supra , citing Clarke v. Helene Curtis, Inc., 293 AD2d 701, 701-702, 742 NYS2d 325 [2d Dept., 2002]).

"[I]t is not always necessary for a plaintiff to quantify exposure levels precisely or use the dose-response relationship, provided that whatever methods an expert uses to establish causation are generally accepted in the scientific community." Parker v. Mobile Oil Corp., supra . The Court explained:

"the intensity of exposure to [the product] may be more important than a cumulative dose for determining the risk of [injury]. Moreover, exposure can be estimated through the use of mathematical modeling by taking a plaintiff's work history into account to estimate the exposure to a toxin. It is also possible that more qualitative means could be used to express a plaintiff's exposure. Comparison to the exposure levels of subjects of other studies could be helpful provided that the expert made a specific comparison sufficient to show how the plaintiff's exposure level related to those of the other subjects. These, along with others, could be potentially acceptable ways to demonstrate causation if they were found to be generally accepted as reliable in the scientific community." (Parker v. Mobile Oil Corp., supra ).

Nevertheless, a plaintiff must submit epidemiologic evidence to support their claim that the product at issue caused his injuries. (Parker v. Mobile Oil Corp., supra ). [*4]

A product may be defective due to the inadequate warning of the risks involved in the use of the product. (See, Johnson v. Johnson Chem. Co., 183 AD2d 64, 588 NYS2d 607 [2d Dept., 1992]). The plaintiff must prove that the manufacturer failed to warn of latent dangers resulting from the foreseeable use of his product of which it knew or should have known. (Liriano v. Hobart Corp., 92 NY2d 232, 700 NE2d 303, 677 NYS2d 764 (1998), citing Rastelli v. Goodyear Tire & Rubber Co., 79 NY2d 289, 297, 591 NE2d 222, 582 NYS2d 373 [1992]). The plaintiff must also establish that the defendant's failure to warn was a substantial factor leading to the events that caused his injury. (Nagel v. Brothers Intl. Food, Inc., 34 AD3d 545, 825 NYS2d 93 (2d Dept., 2006), citing Billsborrow v. Dow Chem, 177 AD2d 7, 16, 579 NYS2d 728 (2d Dept., 1992), citing Amatulli v. Delhi Const. Corp., 77 NY2d 225, 232, 571 NE2d 645, 569 NYS2d 337 (1991) and Derdiarian v. Felix Contr. Corp., 51 NY2d 308, 315, 414 NE2d 666, 434 NYS2d 166 [1980]). However, "where the person who would benefit from a warning is already aware of the specific hazard, the manufacturer cannot be held liable for failing to warn of that known hazard." (Stalker v. Goodyear Tire & Rubber Co., 60 AD3d 1173, 1175-76, 874 NYS2d 632 (3d Dept., 2009) quoting Steuhl v. Home Therapy Equip., Inc., 51 AD3d 1101, 1103, 857 NYS2d 335 (3d Dept., 2008); see also, (Wesp v. Carl Zeiss, Inc., 11 AD3d 965, 968, 783 NYS2d 439 (4th Dept., 2004); Mlott v. Whirlpool Corp., 252 AD2d 990, 991, 676 NYS2d 383 (4th Dept., 1998); Schiller v. National Presto Indus., 225 AD2d 1053, 1054, 639 NYS2d 217 [4th Dept., 1996]). This issue can be resolved as a matter of law. (Martin v. Hacker, 83 NY2d 1, 10, 628 NE2d 1308, 607 NYS2d 598 [1993]).

The facts pertinent to the determination of this motion are as follows:

At his examination-before-trial, the plaintiff testified that he used Kodak Developer Systems Cleaner to clean wet x-ray processing machines during his employment at Coney Island Hospital from 1975 to 1980, at Xonics Medical Systems from 1983 to 1986 and at the VA Medical Center from 1986 to 2006. He testified that he used Developer Systems Cleaner for routine monthly preventative maintenance to remove silver deposits that accumulated on the x-ray processor's tanks and rollers as well as periodically when the tanks had to be drained for repair. The plaintiff testified that the product worked very well for its intended purposes.

He testified and it is not disputed that the Developer Systems Cleaner was supplied as a liquid concentrate in 16 ounce plastic bottles. Each container made six gallons of Developer Systems Cleaner working solution. The concentrate was composed of 65-70% water, 18% Sodium Dichromate and 15-20% Sulphuric Acid. When made, the Developer Systems Cleaner was comprised of 99% water 1% Sodium Dichromate and 1% Sulphuric Acid.

The plaintiff testified that he always used the Developer Systems Cleaner in [*5]accordance with its instructions and recommendations as follows: First, he drained the developer and fixer solutions from the x-ray processor. He then took the rack and crossovers out of the developer tank and brought them to a sink if one was available; if one was not available, the rack and crossovers were kept in the tanks to be cleaned. He filled half of the fixer and developer tanks with water and turned on the recirculation pumps to run water through the lines. After cleaning the fixer tank and rollers with a different cleaning product, he turned his attention to cleaning the developer system components. He testified that he poured a portion of a bottle of the Developer Systems Cleaner concentrate into water in the developer tank as close to the water line as possible to avoid splashing. He then turned the recirculation pump on to circulate the working solution through the lines for approximately 30 minutes. The temperature of the x-ray processor was set at 70°F. While the developer cleaner was circulating through the tank, Mr. Barbaro cleaned the developer rack and crossovers at the nearby sink by soaking them in diluted Developer Systems Cleaner working solution and/or by wiping silver deposits with a Scotch-Brite pad or cloth. He then drained the tank of the developer cleaner working solution, placed the rack back into the developer tank, and flushed the system with fresh water. He then refilled the tank with fresh fixer and developer for its continued use.

The plaintiff testified that pursuant to the recommended preventative maintenance protocol, the x-ray processors were cleaned once a month. He testified that the entire process took approximately two hours to complete. It took 40 minutes to clean the fixer system components and 30 minutes to clean the developer system components for a total of 70 minutes. The plaintiff testified that the number of processors he cleaned varied depending on how many there were as well as his other responsibilities. He testified that he serviced six processors at Coney Island Hospital, on average of one to two times a week when he worked as a darkroom technician processing x-ray film. He testified that as an employee of Xonics, he worked as a field service technician responsible for installing, repairing and maintaining x-ray processing equipment at various hospitals, clinics and doctors' offices in the Bronx and Manhattan but he was primarily assigned to the Long Island College Hospital, Cabrini Medical Center and the Orthopedic Institute. He estimated that x-ray processor preventive maintenance entailed 75% of his job and that he cleaned as many as four processors a day. He testified that when he was employed by the VA Medical Center, he worked as a biomechanical technician. During his first 10-12 years, in addition to his other duties, he was responsible for servicing approximately 20 x-ray processors, which resulted in his cleaning two to three a day. However, the wet analogue x-ray processors were gradually replaced with dry digital machines and so the number of x-ray processors he serviced there decreased after 1996-1998 and he took on other job responsibilities that did not require him to use Kodak products. The VA Medical Center records reflect that the plaintiff serviced 1.72 processors a week from 1986 to 2006, which according to the plaintiff's supervisor Salvatore Tatta, resulted in an average exposure to Developer Systems Cleaner of 10.3 minutes per day. [*6]

The plaintiff testified that he always wore safety goggles, neoprene rubber gloves that went five to six inches up his arm and a lab coat or long-sleeved shirt when servicing the x- ray processors. Under normal circumstances, the gloves protected his arms from contact with the Developer Systems Cleaner. He testified that Kodak recommended that its product should be used in an area with sufficient air circulation but the size of the rooms where he worked varied. At Coney Island and VA Medical Center, the rooms were approximately six by twelve feet to twelve by fifteen feet. While most of the rooms had adequate ventilation, a few did not but he nevertheless continued to work in them. He in fact testified that he complained to his supervisor when he felt that the darkroom's ventilation and exhaust parameters fell beneath Kodak's recommendations. While he testified that darkrooms had a general chemical odor, he did not recall an odor when opening a container of Developer Cleaner.

The plaintiff also testified that he received training on x-ray processors at Coney Island in 1978 when he was transferred to radiology. He took courses from Kodak and Dupont. He also learned early in his career how to perform preventative maintenance, i.e., to use the Developer Systems Cleaner and to do repairs on processors from Kodak technicians. He specifically recalled being told to avoid getting the Developer Systems Cleaner on his skin. The plaintiff testified that he was trained by his co-employees at Xonics where he received additional instructions on how to install, clean and perform preventative maintenance on x-ray processors. He further testified that at VA Medical Center, he occasionally worked with Kodak's field representatives and that in 1988, he took a four-day class on x-ray processors at Kodak in Rochester where he received class instruction as well as written materials on how to maintain and repair x-ray processors. The instructor Steve Pflanz attests that the plaintiff was specifically instructed on how to use Developer Systems Cleaner to clean x-ray processors only as directed; to use it only in its diluted form as instructed on the label; to never mist or spray it; not to inhale it; to make sure that the area was well ventilated; and, to wear chemical resistant rubber gloves, eye protection and lab clothing to avoid contact with his skin. Mr. Pflanz attests that he instructed his class to use Developer Systems Cleaner as little as possible—as a last resort—because of the defects it caused on film if residue remained in the developer tanks or got absorbed by the rollers. He told the class that it should not be used for more than 30 minutes once every one to three months.

At his examination-before-trial, the plaintiff testified that he knew that it was important to follow the manufacturer's instructions when using Developer Systems Cleaner and that he was aware of its health threats, including a suspected cancer hazard. From the label, he knew that the product contains Sodium Dichromate; that the product may cause skin and eye burns; that the product may be harmful if he got it on his skin; that the product may be absorbed into the skin; that the product may cause an allergic reaction to his skin; that he should not get the product on his skin or clothing; that he should wear gloves to avoid getting it on his skin; that he should wash it off with water immediately if he got it on his skin or [*7]clothing; that it was important to follow the manufacturer's instructions on how to use the product; that the product potentially could be dangerous to his health; and that the product may cause cancer. Similarly, the plaintiff acknowledged that from Kodak's Material Safety Data Sheet, he knew what Developer Systems Cleaner contained, that it could cause irritation, rashes, kidney damage and cancer and that it was a possible carcinogen. The Material Safety Data Sheet also warned to use gloves and eye wear. He testified that he was more careful when handling this product and took more precautions and avoided inhaling it as well as contact with his skin. He acknowledged that he clearly knew that the product was hazardous to his health.

The plaintiff testified that during the many years he serviced x-ray processors, he only got chemicals on his skin a few times . More specifically, he got chemicals on his skin three or four times when he worked at Coney Island Hospital; he got a Kodak product on his skin twice while working at Xonics but did not seek medical treatment and just washed it off with soap and water; and, he got chemical solution on himself four or five times at the VA Medical Center but could not specifically recall which kind. He removed his clothes, washed with soap and water and the burning sensation went away. The plaintiff did specifically recall getting Developer Systems Cleaner on his skin in 1996 and 2000. The VA's records in fact reflect that when he got Developer Systems Cleaner on his hands in 1996, the next day, his hands, knees and feet swelled. He was treated with hydrocortisone and Motrin for contact dermatitis. The plaintiff did not seek medical treatment when he got Developer Systems Cleaner on his skin in 2000. His records also reflect that he was treated for a rash/dermatitis in 1998 after being exposed to film developer.

As for physical symptoms, the plaintiff recalled experiencing occasional coughing at Coney Island Hospital; eye irritation, sneezing, headaches and coughing at Xonics when working in poorly ventilated areas and once or twice when working in properly ventilated rooms; and, rashes, headaches, coughing and/or burning eyes four or five times at the VA Medical Center.

The plaintiff testified that he started experiencing breathing difficulties in the beginning of 2005. He saw pulmonologist Allen Blum, M.D. on November 30, 2005 and on his health questionnaire, he represented that he had smoked a pack of cigarettes a day for 25 years but stopped in 1987. When his symptoms worsened, a lung biopsy was performed on September 26, 2006 and he was diagnosed with a malignant squamous cell carcinoma in the right upper lobe. He underwent surgery on October 16, 2006, which revealed invasive moderately differentiated squamous cell carcinoma. The plaintiff went out on disability that month and filed for workers compensation alleging that his medical condition was caused by exposure to sodium dichromate in the Developer Systems Cleaner. His claim was denied and he appealed to the Department of Labor. [*8]

The last case of Developer Systems Cleaner was shipped to VA Medical Center on May 2, 1996. Kodak stopped manufacturing Developer Systems Cleaner on February 23, 2001 and last sold it on August 17, 2001. Kodak avers that it has no record of anyone ever claiming that their exposure to Developer Systems Cleaner caused cancer.

Kodak seeks to establish that the plaintiff's use of Developer Systems Cleaner did not expose him to airborne concentrations of sodium dichromate let alone enough to cause lung cancer in humans through the affidavits of, inter alia, the plaintiff's supervisor at VA Medical Center, Salvatore Tatta, Industrial Hygienist John W. Spencer, CIH, CSP, and Occupational Physician and Toxicologist Dr. John Whysner, M.D., Ph.D., D.A.B.T.

Plaintiff challenged the admissibility of the affidavit of Dennis Stainken, Ph.D. because it failed to conform to the requirements of CPLR § 2309(c). Such a defect may be cured, as was done here, by the submission of the certificate of the Clerk of the Circuit Court for Baltimore County Maryland authenticating the notary's signature and certifying that she was authorized to administer the oath. (See PRA III, LLC v. Gonzalez, 54 AD3d 917, 864 NYS2d 140 [2d Dept., 2008]).

The plaintiff's supervisor at VA Medical Center, Salvatore Tatta, attests that the last date Developer Systems Cleaner was shipped from Kodak to its facility was May 2, 1996. He explains that Developer Systems Cleaner was supposed to be used to clean the silver deposits from the x-ray processors' tanks and rollers only after less invasive means like Scotch Brite and water failed. He states that because the equipment was regularly cleaned with water and Scotch Brite, it was not necessary to use Developer Systems Cleaner on an x-ray processor more than once a month and when used, the process took under 30 minutes. Tatta attests that between 1996 till 2006, the VA Medical Center went from 13 wet x-ray processors to two so the plaintiff's use and exposure to Developer Systems Cleaner inevitably decreased significantly over those years. In fact, Biomedical Engineering Work order request forms completed by the plaintiff revealed that while he performed the cleaning service with Developer Systems Cleaner 186 times in 1992 which, according to Tatta's calculations, reflected an average of 22.2 minutes per day, by 2006 he did so only 14 times, which according to Tatta's calculations, reflected an average of 2.1 minutes per day.

Mr. Tatta notes that the plaintiff successfully completed his mandatory hazard material and safety training and attended courses sponsored by Kodak in 1988 and 1989 where he received hands-on training. And, Tatta notes that via the Material Safety Data Sheet, the plaintiff was clearly made aware of the constituents present in Developer Systems Cleaner, the protective equipment recommended and that it was to be used in well ventilated areas. Mr. Tatta also acknowledges that while the VA Medical Center was well aware of the dangers of sodium dichromate, its Industrial Hygienist and Safety Officer Rick Joao himself concluded that the Developer Systems Cleaner was "perfectly safe when used in accordance [*9]with the instructions due to the non-volatility of sodium dichromate when dissolved in water."

In support of Kodak's motion, Dr. Whysner states that there is no evidence whatsoever that dermal exposure to sodium dichromate increases the risk of let alone causes lung cancer, nor is there any evidence that the occupational use of Developer Systems Cleaner or the soluble form of sodium dichromate also known as CR VI (chromium) in a manner comparable to the plaintiff's use of it increases the risk of lung cancer. He states that while there is evidence that the risk of cancer is increased by the use of chromium VI compounds when it is used in chromate processing, pigment production and electroplating where extremely high levels of chromium VI compounds are generated as airborne particles or aerosols in those work places, that is not at all comparable to the conditions that the plaintiff worked under. Dr. Whysner in fact notes that the use of chromium III and VI in the dissolved state in the tanning and glassware washing industries, which is similar to the plaintiff's use of it, has not shown any causal relationship between chromium exposure and cancer.

Furthermore, Dr. Whysner attests that there is no evidence that the plaintiff ever aerosolized or heated the Developer Systems Cleaner to the degree necessary to generate airborne particles, that it never became airborne and the plaintiff could not have inhaled it. And, Dr. Whysner explains that exposure to the plaintiff's skin could not have caused lung cancer because chromium VI is reduced to Chromium III when absorbed by the skin, which does not readily pass cell membranes because of its molecular structure and chromium III is not considered a carcinogen.

While Dr. Whysner in fact notes that although smokers have been found to be able to handle higher doses of chromium VI than non-smokers, he notes that the plaintiff was in fact exposed to many carcinogens directly into his lungs through years of smoking and he attributes the plaintiff's use of tobacco as the major factor that caused his lung cancer.

Mr. Spencer, as well as a trained chemist and Project Leader for Kodak Film Photofinishing & Entertainment Group and the Retail Manufacturing Dispersion/ Photoprocess Group, Andrew F. Hoffman, both agree that there was no possibility of inhalation exposure to sodium dichromate or CR VI the way that the plaintiff utilized the Developer Systems Cleaner. They explain that sodium dichromate comprised less than one percent of the Developer Systems Cleaner and it has a vapor pressure of zero. Thus, they opine that inhalation is impossible when it is dissolved like it was in Developer Systems Cleaner unless the Developer Systems Cleaner is propelled into the air by misting or by boiling, which was never done here.

Based on Tatta's calculations, Mr. Spencer concludes that the plaintiff performed on average of .34 x-ray processor cleanings a day, amounting to 10.3 minutes a day while [*10]employed at the VA Medical Center. While he acknowledges that it can be inhaled when boiled or sprayed, Mr. Spencer represents that sodium dichromate is highly soluble in water and for that reason, "it is not possible to inhale sodium dichromate when it is dissolved in solution" and "there is no possibility of airborne exposure to sodium dichromate when used as directed to clean the developer components of x-ray processors."

To further establish that the plaintiff could not have inhaled sodium dichromate while working with the Developer Systems Cleaner, Kodak relies on two studies it conducted. Mr. Spencer states that these studies were conducted in accordance with methods endorsed by the National Institute of Occupational Safety and Health and the Occupational Safety and Health Association. The first study was performed on March 31, 2009 in the Radiology Department of the VA Medical Center. Mr. Tatta attests that the x-ray room where the first test was performed was in a substantially similar condition as it was when the plaintiff used it. In fact, Patricia Hartleben, an employee of Kodak's Photochemical Division of the Film, Photofinishing & Entertainment Group, attests that at her request, a Kodak bench chemist mixed a one-liter batch of Developer Cleaner in accordance with the product specifications at [Kodak's] WWW Photodevelopment Lab in Rochester, and then transferred the solution to (2) 500 ml. bottles and on March 25, 2009, they were shipped to the VA Medical Center for the test. Andrew F. Hoffman attests that he supervised lab technician Michael Haight's preparation of a sample of Developer Systems Cleaner, using 812 grams of water, 225 grams of the Developer Systems Cleaner and 224 grams of sulphuric acid. Biomechanical technician Urick Mathurin cleaned the Kodak M6B processor that the plaintiff had maintained with the Developer Systems Cleaner that had been mixed by a Kodak chemist in accordance with product specifications. Six personal air samples were taken from Mathurin's breathing zone both within the dark room and adjacent to the sink basin while he cleaned the developer tank and washed the developer rollers at the sink. Those samples were sent to Galson Laboratories, an American Industrial Hygiene Association ("AIHA") with American Association for Laboratory Accreditation, and New York State Department of Health accreditation. The President of Galson Labs, F. Joseph Unangst represents in his affidavit that "no sodium dichromate was detected."

Mr. Spencer further explains that a second air monitoring test was performed on August 27, 2009 in a test chamber configured to the same dimensions as the darkroom in the Bronx VA Hospital using the OSHA ID-215 method, which can detect an airborne concentration of sodium dichromate at extremely low levels, ten times lower than the method utilized the first time. The test was done by an experienced field service technician on the same M6B x-ray processor as the first test. Once again, the Developer Systems Cleaner used was prepared by a Kodak chemist in accordance with the product specifications. Ten personal and area air samples were taken while the cleaning was done and they were sent to Galson Labs for analysis. Mr. Spencer represents that the results again failed to detect any measurable quantity of sodium dichromate above the tolerable limit. Mr. Spencer in fact [*11]opines that the plaintiff's environmental exposure to sodium dichromate was 12 times greater than his occupational exposure.

Based on the empirical data and tests, Kodak opines that the Developer Systems Cleaner could not have caused the plaintiff's illness. Kodak additionally notes that the plaintiff was a smoker for 25 years and his exposure to contaminants that way cannot be ruled out.

Claims to recover for personal injuries suffered as a result of exposure to toxic substances must be brought within three years of the discovery of the injury. Plaintiff testified that he suffered injuries to his skin in 1996 and 2000. Thus, any such claims were required to be advanced by 2003. This action was not commenced until 2007. The plaintiff's claim for dermal injuries is dismissed.

The Statute of Limitations for a claim for breach of warranty is four years from the date of delivery of the defective project. Uniform Commercial Code (UCC) § 2-725(2). Kodak's last shipped Developer Systems Cleaner to the VA Medical Center was on May 22, 1996. In fact, its last shipment of Developer Cleaner to anyone was in August, 2001. The breach of warranty claim is dismissed.

Having reviewed Kodak's product label, instructions and Material Safety Data Sheets, Mr. Spencer opines that Kodak provided the plaintiff with appropriate warnings and precautionary instructions regarding the use of Developer Cleaner. The label noted that Developer Systems Cleaner was a "suspect cancer hazard" that "may cause cancer" and the Material Safety Data Sheets noted under "Exposure Effects" that it was a "suspect carcinogen." Furthermore, the plaintiff acknowledged that he knew that the product was not to be misted, sprayed or inhaled and that good ventilation was required. In fact, he admitted complaining to his supervisor when he thought that the ventilation was inadequate. He also knew to avoid contact with his skin and to dress appropriately, i.e., gloves and goggles. He also knew to wash it off immediately if he got it on his skin. He in fact testified that he was careful in how he handled the Developer Systems Cleaner and took more precautions to avoid getting it on his skin and breathing it. In fact, in his Workers' Compensation statement he represented:

"The warning label clearly stated that this chemical [sodium dichromate] can cause cancer. I, of course, knew that I worked with this chemical frequently for many years [and] I knew from previously reading the warning labels on the chemical bottle, which I used on a near daily basis on the job that it was a cancer causing agent. After being diagnosed with cancer, I reread the label to confirm my suspicions."

Kodak has in fact established that the plaintiff was specifically cautioned that [*12]Developer Systems Cleaner should not be misted, sprayed or inhaled and that good ventilation was necessary when using the product. In addition, he was warned that he must wear goggles, gloves and a lab coat. In fact, the plaintiff himself has testified regarding his knowledge of the potential health hazards of Developer Systems Cleaner including its cancer causing potential and that he knew to avoid getting it on his skin, breathing it and that good ventilation was required when using it. Kodak has established its entitlement to summary judgment dismissing the failure to warn claim, also.

While there is indisputably evidence that sodium dichromate causes lung cancer, that alone is not adequate: Evidence that the product itself causes cancer is required. Parker v. Mobile Oil Corp., supra , Kodak has established a lack of general causation: There is no evidence that Developer Systems Cleaner causes lung cancer. Furthermore, via Dr. Whysner and Mr. Spencer's affidavit, Kodak has also established that given the manner in which he used Developer Systems Cleaner, the plaintiff could not have inhaled sodium dichromate. Kodak in fact verified that fact in its two test runs. No measurable quantities of sodium dichromate were detected in the numerous air samples taken. And, whether the job be performed once or hundreds and hundreds of times, there is no evidence that that result would be affected. Kodak has also established that there are no epidemiological studies that demonstrate that sodium dichromate in the form used by plaintiff causes lung cancer. Studies done in glassware cleaning in laboratories and the tanning industry, which are comparable to the plaintiff's use of sodium dichromate, did not produce any statistically significant evidence of an increase in lung cancer. While the studies in the chromate production, chromate pigment production and the chromium plating industries demonstrated an increase in the risk of lung cancer, Kodak has demonstrated that the use of sodium dichromate was markedly different there in form, manner and quantity. Those studies are simply incomparable.

Kodak has also established that the plaintiff's skin exposure to the Developer Systems Cleaner could not have caused his cancer. The Chromium VI compounds found in sodium dichromate are quickly reduced in the skin to Chromium III, which is not considered a carcinogen.

Furthermore, despite his present denial, the plaintiff's medical record unequivocally confirms that he smoked approximately a pack of cigarettes a day for 20-25 years. Dr. Whysner opines that that increased his risk of lung cancer by a factor of 10 as opposed to non-smokers. This indisputable cause precludes recovery here.

Kodak has also established its entitlement to summary judgment dismissing the strict products liability and negligence claims.

The burden accordingly is shifted to the plaintiff to establish the existence of a [*13]material issue of fact with respect to each claim.

In opposition to Kodak's motion, the plaintiff has submitted his own affidavit as well as the affidavits of Dennis Stainken, Ph.D. and Carl Friedman, M.D.

The plaintiff's failure to disclose Dr. Friedman's identity despite the filing of the Note of Issue and Certificate of Readiness renders his affidavit inadmissible. Construction by Singletree, Inc. v. Lowe, 55 AD3d 861, 866 NYS2d 702 (2d Dept., 2008); see also, Yax v. Development Team, Inc., 67 AD3d 1003, ___N.Y.S.2d___ (2d Dept., 2009); Gerardi v. Verizon New York, Inc., 66 AD3d 960, 888 NYS2d 136 (2d Dept., 2009); Wartski v. C.W. Post Campus of Long Island University, 63 AD3d 916, 917, 882 NYS2d 192 (2d Dept., 2009). In any event, even were both of the plaintiff's experts' affidavits considered, they have failed to establish the existence of a material issue of fact.

When seeking to establish causation in a comparative setting, the plaintiff must proffer a scientific measurement or a reliable estimate of the plaintiff's exposure in comparison to the subjects whose exposure has already been established. See, Todman v. Yoshida, 63 AD3d 606, 881 NYS2d 422 (1st Dept. 2009); Nawrocki v. Coastal Corp., 45 AD3d 1341, 845 NYS2d 896 (4th Dept., 2007), lv den., 48 AD3d 1213 (4th Dept., 2008), lv den., 10 NY3d 710 [2008]). Furthermore, to establish causation, the expert must "reliably rule out reasonable alternative causes of [the alleged harm] or idiopathic causes." (Henricksen v. ConocoPhillips Co., 605 F. Supp. 2d 1142, 1162 (E.D. Wash. 2009), quoting Soldo v. Sandoz Pharmaceuticals Corp., 244 F. Supp. 2d 434, 567 (W.D. Pa. 2003). Although a plaintiff need not rule out all alternative causes, "where a defendant points to a plausible alternative cause and the [defendant's expert] offers no explanation for why he or she has concluded that it was not the sole cause, that [expert's] methodology is unreliable." (Henricksen v. Conoco Phillips Co., supra , citing Heller v. Shaw Indust., Inc., 167 F.3d 146, 156, (3rd Cir. 1999), quoting In re Paoli R.R. Yard PCB Litigation, 35 F.3d 717, 759, n 27 (3rd Cir. 1994); see also, Olsovi v. Salon DeBarney, 118 AD2d 839, 500 NYS2d 325 (2d Dept., 1986) (plaintiff must reasonably exclude all other possible causes), Ravo v. Lido, 17 AD2d 476, 482, 236 NYS2d 135 (2d Dept., 1962), as amended, 18 AD2d 1022 [2d Dept., 1963]).

As the plaintiff points out, he worked with the Developer Systems Cleaner in several different settings for over 30 years. The plaintiff entirely discounts any information supplied by Salvatore Tatta. He attributes bad motives to him because he and another employee filed age discrimination charges against him as well as reprisal charges after he retaliated. More importantly, he points out that Tatta was an administrative supervisor with no hands-on experience performing the work he did thereby severely limiting his knowledge of his work. The plaintiff had already been working with Kodak's product for 21 years when Tatta became his supervisor. As for Tatta's reliance on the work orders to calculate the plaintiff's exposure [*14]to Developer Systems Cleaner, the plaintiff maintains that that paperwork regularly went undone, particularly with respect to repairs, and it is therefore not a reliable measure of his work. The plaintiff himself represents that he used far more bottles of Developer Systems Cleaner than Tatta calculated. As for the limited amount of Developer Systems Cleaner remaining in the plaintiff's office, the plaintiff represents that it was stored everywhere in the hospital where it was used and that Kodak had in fact gratuitously provided it to the VA Medical Center free of charge as an incentive to purchase its film products.

The plaintiff also disputes Tatta's representation that preventive maintenance only took 30 minutes. He states it took two to three hours. Furthermore, the plaintiff states that there were more than 20 x-ray processing machines when he went to work at VA Medical Center and so he did at least two dozen preventive maintenance procedures a month, plus repairs. He also states that when he left VA Medical Center, there were six x-ray processors and he maintained and repaired all of them. In addition, he explains "[w]hen [he] put the product into the process and then replaced the rack into the tank (after having used the product to clean the racks in the slop sink), [he] would often encounter a series of malfunctions that would have to be resolved before [he] could drain the systems cleaner from the tank. These repairs, as well as standard [preventive maintenance] practices would cause the machine and the product solution to be agitated in the open tank, which caused bubbles or froth to form on the surface of the liquid. The solution would also be agitated when [he] used it to scrub the rollers or rotate the rollers in the solution as directed by the manufacturer." Furthermore, "[o]n hundreds of occasions, [he] encountered leaks and spills during both preventive maintenance and repair work. This would result from a detached hose, broken drain valve(s), leaky internal tubing or other defect in the machine, which would cause the product to spill out and splash." He opines that "[he] was generally exposed to the chemicals during the entire time [he] had to do the preventive maintenance, i.e., two hours," as well as when he was performing repairs, which was on a nearly daily basis, each of which required at least one bottle of the product. He represents that the VA Medical Center's x-ray processors were in constant use, which necessitated above average maintenance as well as repairs.

The plaintiff states that the Material Safety Data Sheets ("MSDS") were kept under lock until approximately 2000. He notes that while the product label does not so warn, the MSDS contained specific warnings about inhaling mists and vapors, and, had he known that all along, he would have used a respirator.

Dr. Stainken is an expert in environmental toxicology and ecological research on the transport, fate and effect of pollutants in humans and the environment. He maintains that CR VI, also known as sodium dichromate, "can be evaporated or volatized in water" and "can be inhaled in airborne water droplets or aerosols and water vapor." Kodak in fact does not dispute this. Dr. Stainken also maintains that CR VI is carcinogenic to humans. Kodak does [*15]not dispute that either. Dr. Stainken notes that the plaintiff's job—maintaining and repairing x-ray processors—exposed him to CR VI and that there was theoretically the possibility of the plaintiff's dermal or respiratory exposure. Again, this is not disputed. He also notes the need for adequate ventilation, which Kodak also acknowledges.

In an attempt to establish that the plaintiff was in fact exposed to CR VI, Dr. Stainken relies on the principal that "a liquid stream falling into a tank of liquid or onto a floor creates bubbles and mists," and "if the liquid is a water solution of a solid (such as the Kodak product), evaporation of the water takes place after mist formation, and a system of dry particles in atmospheric suspension having the same composition of the material dissolved in the mother liqu[id] results." He also opines "[m]isting can also result from small bubbles of froth that accumulate on the surface of a solution which burst creating mists of the solution. Heat rising from the solution surface or when heated solutions are poured will propel the aerosol and mist upward." Dr. Stainken also relies on the principal that "a falling liquid can splash and form suspended droplets (mists), and as the liquid falls onto a liquid (as in filling and pouring), the drop on a liquid surface leads to formation of a crater in the liquid." He explains "[a]t the crater wall, a sheet of liquid is raised above the surface. This sheet is unstable and tiny droplets appear at the upper rim. As these tiny droplets form, they become mist which will rise with air and heated air convection currents, into the air above (i.e., the breathing zone of Mr. Barbaro)." Dr. Stainken goes on to note that "in the case of solutions such as the Kodak product, these aerosols and mists can entrain (carry) Chromium IV." He states that the processor tank was heated to 95°and the dryer heater was on at 120° and that "[t]he hydration reaction of the sulfuric acid solution is also exothermic. The heat, agitation and emanation of sulfuric acid aerosol would also be capable of entraining Chromium VI in the aerosol." He notes the mixing of the concentrate into the working solution; pouring the working solution into tanks; cleaning rollers in the tanks; cleaning rollers in the slop sink with the working solution; emanation of vapor/fumes from the tanks/machine(s) while he worked at the sink; reaching into the machines to clean spillage; emptying and rinsing of tanks; emptying and rinsing of slop sink, as well as spills and repair work; and soaking and agitating rollers to clean the system, which all placed the plaintiff in proximity to the solution during splashing, agitation and ripping as well as heat of the solution which would cause misting. He further opines that spillage, slashing, dripping and condensation/settling of liquid aerosols and mists would leave dried deposits of CR VI, available as dusts in the plaintiff's work zone. He notes that the relevant amounts of CR VI in air becomes additive with multiple cleanings of machines and work at the slop sink and that bending over the materials places the breathing zone in proximity to the material and the machine interior. Dr. Stainken calculates the plaintiff's exposure measurement and finds it far in excess of the OSHA limit.

Having reviewed Kodak's records including product labels, the depositions, the Material Safety Data Sheets and pertinent scientific literature, Dr. Stainken opines to a [*16]reasonable degree of scientific certainty that the ingredients of Developer Systems Cleaner, sodium dichromate and sulfuric acid, are completely soluble in water and that these materials can form aerosols and mists containing Chromium VI, which become airborne during use. He explains that this occurs when mixing and pouring solutions, working at the slop sink, bending over and adding/removing solutions, and working on the machines. He notes that during these processes, the plaintiff was in intimate contact with the machines and cleaning solutions and his immediate breathing zone was in close proximity to the mists and aerosols. Moreover, he notes that physical activity is known to increase the depth and rate of breathing, increasing the potential for inhalation. In addition, the plaintiff had dermal exposure throughout the use of the product. His conservative estimates of the plaintiff's exposure are above safety limits and within the ranges that even Kodak's experts point out have been associated with excessive rates of lung cancer.

Dr. Stainken notes that the potential for exposure was additive and chronic since the plaintiff was cleaning multiple machines over extended time using the product. He further notes that the potential for harmful exposure was reflected in the increased safety notations in the product's Material Safety Data Sheets for ventilation, warnings about inhalation, and respiratory protection. Based on his analysis of the plaintiff's work descriptions and materials, it is his scientific opinion that the plaintiff was exposed to Chromium VI above safety limits and within ranges associated in the studies cited by Kodak's experts with cancer causation. Dr. Stainken fails to address the effects of the plaintiff's smoking history.

Dr. Friedman, a fellow of the American Society of Legal and Industrial Medicine, has reviewed the plaintiff's medical records, epidemiological studies regarding the carcinogenicity of chromium compounds in industrial settings including work place exposure to soluble chromium compounds allegedly like those found in this case, as well as Dr. Spencer and Whysner's reports. He has also personally examined and interviewed the plaintiff. He concludes to a reasonable degree of medical and scientific certainty that the plaintiff's lung cancer was caused by his 30 year exposure to the Developer Systems Cleaner which contained hexavalent chromium. Dr. Friedman likens the plaintiff's exposure to chromium to that sustained by workers in the chromate pigment production industry, who have consistently shown excess risks for lung cancer. Dr. Friedman notes that workers in that industry are exposed to chromates not only in the pigments but also from soluble chromium compounds in the raw materials used in their production. In fact, he notes most recently the EPA study cited by Dr. Whysner confirmed that inhalation exposure to 4 mg/m3 was conclusively determined to create an excessive risk of lung cancer and in fact, based in part on these findings, OSHA has set a permissible exposure limit of between .01 and .15 mg/m3 for workplace exposure to inhalable CR VI.

While he acknowledges that the human body does in fact have strong defenses to the carcinogenic effects of CR VI, he notes that they are not infallible and do not negate [*17]causation. What he characterizes as critical is the amount of exposure, the possible route and the elimination of causative factors. On that note, Dr. Friedman notes that the carcinogenic effect of CR VI has been known for a long time and the respiratory tract has been identified as the primary affected area. He notes that plaintiff was regularly exposed to CR VI for over 30 years in numerous different work places with varying levels of air quality control. He opines that in the course of his employment, the plaintiff was exposed to airborne CR VI, which was misted into his air space by virtue of his pouring, heating, mixing and agitating the product concentrate and working solution. Dr. Friedman notes that according to Dr. Stainken's calculations, not only was the plaintiff exposed to airborne levels in excess of OSHA's permitted levels, his exposure was repetitive and cumulative over 30 years. He concludes to a reasonable degree of medical certainty that the plaintiff's lung cancer was caused by his exposure to CR VI in the soluble solution produced by Kodak that he used in his work place.

As for the plaintiff's smoking, Dr. Friedman opines that whether he smoked a half pack a week or a pack a week for 10 years, it is not a significant factor in evaluating the cause of his disease because it is an extremely low level of smoking history. He represents that there are no relevant applicable studies to compare the relative risks posed by smoking as the plaintiff did versus exposure to CR VI.

Dr. Stainken's opinion fails because it is not based on facts in the record or empirical scientifically reliable data. See, Diaz v. New York Downtown Hosp., 99 NY2d 542, 544-545, 784 NE2d 68, 754 NYS2d 195 [2002]). While he seeks to establish that the Developer Systems Cleaner was misted because the x-ray processor was heated while it was cleaned, the temperature that the plaintiff testified to, i.e., 70 degrees, was irrefutably hardly hot enough to cause misting. While he seeks to establish misting via spills and splashes, that directly contravenes the plaintiff's testimony regarding how cautious he was when using the Developer Systems Cleaner. More importantly, there is no scientific evidence that any of those things cause misting. And, the plaintiff did not testify to observing mists and misting never occurred during Kodak's tests. In any event, his failure to counter causation by smoking renders his opinion unreliable.

Dr. Friedman's opinion fails because he relies on Dr. Stainken's unreliable estimate of the plaintiff's exposure to Developer Systems Cleaner as the basis for his causation opinion. Furthermore, the circumstances presented in the studies he relies on, i.e., chromate

processing, pigment production and electroplating, are not even remotely comparable to those found here and he has failed to address studies that are in fact comparable where risks and causation were not found, i.e., the glassware washing and tanning industries. For those reasons, causation has not been established. Furthermore, Dr. Friedman has failed to rule out the possibility that the plaintiff's history of smoking caused his lung cancer. While Dr. Friedman simply contests the amount that the plaintiff smoked, the accuracy of the plaintiff's [*18]voluminous medical records as well as his previous verification of them cannot be so cavalierly disregarded at this juncture based on his present denial. (See, Maye v. Stearns, 19 AD3d 902, 902-903, 798 NYS2d 152 (3d Dept., 2005); Blackwell v. Fraser, 13 AD3d 157, 158, 787 NYS2d 224 [1st Dept., 2004]).

While via his affidavit, the plaintiff raises issues of fact regarding agitation and spilling of the Developer Systems Cleaner, again, there is no reliable scientific evidence that that caused it to become airborne subjecting the plaintiff to the risk of inhaling it.

The plaintiff has not met his burden of establishing the existence of a material issue of fact. (See, Parker v. Mobile Oil Corp., supra ; see, McGrath v. Transitional Services of New York for Long Island, 63 AD3d 1121, 883 NYS2d 542 (2d Dept., 2009); DiDomenico v. Long Beach Plaza Corp., 60 AD3d 618, 875 NYS2d 133 (2d Dept., 2009), lv dism., 17 NY2d 762 (2009); Lewin v. County of Suffolk, 18 AD3d 621, 795 NYS2d 659 [2d Dept., 2005]).

The plaintiff's claim that he was not warned that he was being exposed to mists via his regular use of the product and had he been warned, he would have worn a respirator fails because, again, there is simply no admissible evidence that he was exposed to mist. In addition, as per the plaintiff's testimony at his examination-before-trial, he was well aware of the cancer causing risks posed by Developer Systems Cleaner and further warnings would have been cumulative.

Kodak's motion is granted in its entirety and the complaint is dismissed.

The foregoing constitutes the Order of this Court.

Dated: January 28, 2010

Mineola, NY_________________________________

J. S. C.

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