Wahba v. H & N Prescription Center, Inc.

• Decision Date: 12 May 1982
• Docket Number: No. 81 CV 3061.,81 CV 3061.
• Citation: 539 F. Supp. 352
• Parties: Joseph WAHBA, as Administrator of the Goods, Chattels and Credits of Mark Wahba, an infant under the age of fourteen years, Joseph Wahba, individually, and Afrith Wahba, Plaintiffs, v. H & N PRESCRIPTION CENTER, INC., doing business as Zuckerman's Pharmacy, Defendant.
• Court: U.S. District Court — Eastern District of New York

539 F. Supp. 352

Joseph WAHBA, as Administrator of the Goods, Chattels and Credits of Mark Wahba, an infant under the age of fourteen years, Joseph Wahba, individually, and Afrith Wahba, Plaintiffs, v. H & N PRESCRIPTION CENTER, INC., doing business as Zuckerman's Pharmacy, Defendant.

No. 81 CV 3061.

United States District Court, E. D. New York.

May 12, 1982.

Queller, Fisher & Block by Michael Weinberger, New York City, for plaintiffs.

Whitman & Ransom by John Condon Young, New York City, for defendant.

MEMORANDUM AND ORDER

WEINSTEIN, Chief Judge:

Plaintiffs seeks compensatory and punitive damages for the death of their son contending that had defendant dispensed a drug in a "child-proof" container the child would not have died. Defendant moves to strike the claim for punitive damages. For the reasons stated below, the motion must be granted.

I. Facts

In June 1980, the defendant H & N Prescription Center, Inc., doing business as Zuckerman's Pharmacy in Brooklyn, filled plaintiffs' prescription for Lomotil, a drug used to counteract stomach disorders. According to the complaint, thirty tablets were dispensed in a small plastic container unequipped with the "child-proof" cap as required by law. 16 C.F.R. §§ 1700.14, 1700.15 (1981).

Plaintiffs' two year old son came upon the container and ingested approximately twenty of the pills before being interrupted by his mother. He was rushed to the hospital, lapsed into coma and died.

The complaint pleads ten causes of action, four under federal law, pursuant to section 23 of the Consumer Product Safety Act (Act), 15 U.S.C. § 2072 (1976 & Supp. III 1980), and six pendent under state common law. Punitive damages were not included in the relief demanded in connection with the state causes of action because of the rule that such damages are not recoverable under New York law in either wrongful death, N. Y. Est. Powers & Trusts Law §§ 5-4.1, 5-4.3; Robert v. Ford Motor Co., 73 A.D.2d 1025, 424 N.Y.S.2d 747 (3d Dep't 1980), or survival actions, N. Y. Est. Powers & Trusts Law § 11-3.2; Rosenfeld v. Isaacs, 79 A.D.2d 630, 433 N.Y.S.2d 623 (2d Dep't 1980).

Defendant maintains that the state rule applies to the federal claims under the Consumer Product Safety Act. This issue appears to be one of first impression. The conclusion that the measure of recovery under the Act is a function of state rather than federal law is compelled both by the language and the legislative history of the Act.

II. Law

A. History of Act

The Consumer Product Safety Act was the fruit of years of work by the legislature and others who recognized that modern technology and merchandising methods posed increasing threats to the nation's consumers. Prior to 1972, Congress had enacted a number of laws designed to combat dangers posed by specific categories of consumer products. See, e.g., Flammable Fabrics Act of 1953, 15 U.S.C. §§ 1191-1204; Federal Hazardous Substances Act, 15 U.S.C. §§ 1261-1274; Child Protection Act of 1966 and Child Protection and Toy Safety Act of 1969, 15 U.S.C. §§ 1261-1265, 1273, 1274; Refrigerator Safety Act, 15 U.S.C. §§ 1211-1214; Poison Prevention Packaging Act of 1970, 15 U.S.C. §§ 1261, 1471-1476; Federal Caustic Poison Act, 15 U.S.C. §§ 401-411 (repealed); Radiation Control for Health and Safety Act of 1968, 42 U.S.C. §§ 263b-263n; National Traffic & Motor Vehicle Safety Act of 1966, 15 U.S.C. §§ 1391-1409, 1421-1426, 1431. This categorical approach "resulted in a patchwork pattern of laws which, in combination, extended to only a small portion of the multitude of products produced for consumers." Consumer Product Safety Act of 1972, House Commerce Committee, H.R. Rep.No.1153, 92d Cong., 2d Sess. 22 (1972), reprinted in The Consumer Product Safety Act, Text, Analysis, Legislative History (BNA), Appendix 211, 212-13 (1973). Accord, Consumer Safety Act of 1972, Senate Commerce Committee, S.Rep.No.749, 92d Cong., 2d Sess. 1-3 (1972), reprinted in The Consumer Product Safety Act, Text, Analysis, Legislative History (BNA), Appendix 61, 61-63 (1973).

In 1967 Congress established the National Commission on Product Safety to examine methods of protecting consumers against unreasonable risks of injury from household products and to propose remedies for existing legal inadequacies. Act of Nov. 20, 1967, Pub.L.No.90-146, 81 Stat. 466. After more than two years of study, the Commission submitted its final report to Congress in June, 1970. In 1972 the Act established the Consumer Products Safety Commission, an independent federal regulatory agency vested with broad authority to protect against hazardous consumer products. Pub. L.No.92-573, 86 Stat. 1207 (1972), 15 U.S.C. §§ 2052-2082. See generally P. Sherman, Products Liability for the General Practitioner, §§ 4.04-4.06 (1981).

One of the Act's primary purposes, and one of the Commission's principal means of fulfilling its mission, has been the promulgation of uniform national safety standards for consumer products. 15 U.S.C. § 2051(b)(3). The statute contains a comprehensive enforcement scheme including such measures as civil and criminal penalties, injunctive remedies and seizure. Id. §§ 2069-2071, 2073 (1976 & Supp. II 1978).

B. Express Provision for Damages in Act

In addition the Act expressly affords a private right of action to any person who sustains injury by reason of any knowing violation of a consumer product safety rule. Section 2072(a) of title 15 provides:

Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found or has an agent, shall recover damages sustained, and may, if the court determines it to be in the interest of justice, recover the costs of suit, including reasonable attorneys' fees (determined in accordance with section 2059(e)(4) of this title) and reasonable expert witnesses' fees: Provided, That the matter in controversy exceeds the sum or value of $10,000, exclusive of interest and costs, unless such action is brought against the United States, any agency thereof, or any officer or employee thereof in his official capacity. (Emphasis added.)

15 U.S.C. § 2072(a) (1976 & Supp. IV 1980).

Although the Act's measure of recovery, "damages sustained," is employed in more than fifty federal laws, the meaning of the term has rarely been decided. The one interpretation rendered by the Supreme Court concluded that the phrase limited recovery to actual compensatory damages in a labor relations matter. Local 20, Teamsters Union v. Morton, 377 U.S. 252, 260-61, 84 S.Ct. 1253, 1258-59, 12 L.Ed.2d 280 (1964). The case is of limited significance, however, because it is distinguishable on the independent ground that punitive sanctions do not comport with national labor policy. See International Board of Electrical Workers v. Foust, 442 U.S. 42, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979); Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842 (1967); Local 60, United Board of Carpenters v. NLRB, 365 U.S. 651, 81 S.Ct. 875, 6 L.Ed.2d 1 (1961); Republic Steel Corp. v. NLRB, 311 U.S. 7, 61 S.Ct. 77, 85 L.Ed. 6 (1940). In other contexts, courts have allowed punitive damages to be assessed pursuant to statutes authorizing recovery of "damages sustained," but with no generally applicable supporting rationale. Hometowne Bldrs., Inc. v. Atlantic National Bank, 477 F.Supp. 717 (E.D.Va.1979) (damages caused by violation of criminal banking law awarded under 12 U.S.C. § 503); Wright v. Chicago Burlington & Quincy R. R., 223 F.Supp. 660 (N.D.Ill.1963) (damages for prejudicial treatment by a common carrier assessed under 49 U.S.C. § 8).

Since the statute's words are inconclusive, the court must consider whether an award of punitive damages under the Act would "conflict with the congressional judgment reflected both in the language of the federal statute and its legislative history." Teamsters Local 20 v. Morton, 377 U.S. 252, 260, 84 S.Ct. 1253, 1258, 12 L.Ed.2d 280 (1964).

C. Legislative History of Damage Provision

The bill proposed by the National Commission on Product Safety provided for recovery of treble damages in addition to the cost of suit and a reasonable attorney's fee. National Commission on Product Safety, Consumer Product Safety Bill § 30 (1970), reprinted in The Consumer Product Safety Act, Text, Analysis, Legislative History (BNA), Appendix 31, 56 (1973). So too did the original house bill. H.R.15003, 92d Cong., 2d Sess. (1972). The National Commission viewed treble damages as a desirable deterrent as well as an important incentive to consumers to press private claims as a supplement to public enforcement of safety programs. See National Commission on Product Safety, Final Report 118 (1970). In the face of opposition from members of the Administration and others, however, the treble damages provision was deleted. See, e.g., Hearings on Consumer Product Safety Act Before the House Committee on Interstate and Foreign Commerce, Part 3, 92d Cong., 1st & 2d Sess., Serial No. 92-61, at 972 (1972) (statement of Secretary of Health, Education and Welfare, Elliot L. Richardson), quoted in W. Kimble, Federal Consumer Product Safety Act, § 344, at 268 n. 10 (West 1975). The measure finally enacted limited recovery to "damages sustained" plus attorneys' fees; recovery of experts' fees was subsequently authorized. Consumer Product Safety Commission Improvements Act of 1976, Pub.L.No.94-284, § 10(c), 90 Stat. 507.

Treble damages and punitive damages share common functions: both are penalties imposed for the purposes of punishing the offender and deterring future offenses. See John Mohr & Sons, Inc. v. Jahnke, 55 Wis.2d 402, 198 N.W.2d 363 (1972); Johnson v. Joseph Schlitz Brewing Co., 33 F.Supp. 176, 177, 182 ...