LEIBSTEIN v. LAFARGE NORTH AMERICA INC.

• Decision Date: 12 February 2010
• Docket Number: Civil Action No. 06-CV-6460.
• Citation: 689 F. Supp.2d 373
• Parties: Jeffrey LEIBSTEIN and Elena Leibstein, Plaintiffs, v. LAFARGE NORTH AMERICA INC., Lafarge Building Materials, Inc., one or more of which d/b/a Lafarge Corp., and the Home Depot, Inc., Defendants.
• Court: U.S. District Court — Eastern District of New York

689 F.Supp.2d 373

Jeffrey LEIBSTEIN and Elena Leibstein, Plaintiffs, v. LAFARGE NORTH AMERICA INC., Lafarge Building Materials, Inc., one or more of which d/b/a Lafarge Corp., and the Home Depot, Inc., Defendants.

Civil Action No. 06-CV-6460.

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

February 12, 2010.

Dankner & Milstein, P.C., by Jay W. Dankner, Esq., New York NY, for Plaintiffs.

Goodwin Procter, LLP, by Richard L. Matheny, III, Esq. (Pro Hac Vice), Kathryn Starnella, Esq., Amanda S. Hitchcock, Esq. (Pro Hac Vice), Washington, DC, for Defendants.

Hurwitz & Fine, P.C., by Harry F. Mooney, Esq., for Defendants.

MEMORANDUM & ORDER

HURLEY, Senior District Judge:

I. INTRODUCTION

Presently before the Court is a motion for summary judgment filed by defendants¹ Lafarge North America Inc. ("Lafarge") and The Home Depot, Inc. ("Home Depot") (collectively, "Defendants") pursuant to Federal Rule of Civil Procedure 56, and a cross-motion for leave to amend their Complaint filed by plaintiffs Jeffrey Leibstein ("Leibstein") and Elena Leibstein (collectively, "Plaintiffs") pursuant to Federal Rule of Civil Procedure 15. Plaintiffs seek recovery on the following three² causes of action: Strict Products Liability (Count I & V), Negligence (Count II & VI), and Loss of Consortium (Count VIII). Defendants' summary judgment motion targets all three causes of action. Plaintiffs oppose Defendants' motion and cross-move for leave to amend their Complaint to allege violations of the labeling requirements of the Federal Hazardous Substances Act ("FHSA"), 15 U.S.C. §§ 1261-1278 (2000). For the reasons stated below, both motions are DENIED.

II. BACKGROUND

The following facts are undisputed unless otherwise noted. On November 28, 2004, Leibstein purchased twelve ninety-four-pound bags of Type I Portland cement (the "Product") at the Home Depot store in Freeport, New York. (Defs.' Local Civ. R. 56.1 Statement of Material Facts ("Defs.' 56.1") ¶ 32.) Leibstein purchased the Product for use in the installation of a radiant-heat floor in his basement. (Pls.' Revised Resp. to Defs.' Local Civ. R. 56.1 Statement of Material Facts ("Pls.' 56.1") at 13, ¶ 4; Defs.' 56.1 ¶ 44.) The Product, although sold by Home Depot, was manufactured and packaged by Lafarge. (Pls.' 56.1 at 12, ¶¶ 1 & 2.) Before purchasing the Product, Leibstein read the warning labels on the front and back panels of the Product's packaging. (Defs.' 56.1 ¶ 41.) The warning label on the front panel indicated: "CAUTION," "CORROSIVE," "CONTAINS PORTLAND CEMENT THAT IS INJURIOUS TO EYES, SKIN, LUNGS, AND DIGESTIVE SYSTEM," "KEEP OUT OF REACH OF CHILDREN," "SEE BACK PANEL." (Defs.' 56.1 ¶ 34; see also Defs.' 56.1 Ex. 9-10.) The warning label on the back panel indicated, in relevant part, as follows: "AVOID CONTACT WITH SKIN OR EYES: Contact with skin and eyes may cause irritation, corrosion, or severe burns. Wear suitable eye protection, gloves, and protective clothing. Sensitive people may develop allergic dermatitis upon contact." (Defs.' 56.1 ¶ 37; see also Defs.' 56.1 Ex. 11-12.)

On December 5, 2004, Leibstein recruited his two teenage sons to help mix the Product with sand and water. (Pls.' 56.1 at 14, ¶ 5; Defs.' 56.1 ¶ 52.) Leibstein's sons carried the mixed cement in buckets down to the basement and deposited the mixture in a pile in one corner of the room. (Pls.' 56.1 at 14, ¶ 5; Defs.' 56.1 ¶¶ 52 & 53.) As Leibstein spread the cement over the basement floor, he knelt in the mixture for approximately thirty minutes, from about 12:30 PM until sometime after 1:00 PM. (Defs.' 56.1 ¶¶ 53 & 54; see also Pls.' 56.1 at 11-12, ¶ 54.) While he worked with the Product on December 5, 2004, Leibstein wore leather work boots with rubber soles, blue jeans, a flannel shirt, and cloth gloves with rubberized palms. (Defs.' 56.1 ¶ 49; Pls.' 56.1 at 14, ¶ 6.) While Leibstein knelt in the mixture, he did not notice any wetness or dampness on his skin; nor did he experience a burning sensation or pain. (Pls.' 56.1 at 14, ¶ 8.) After he stood up, Leibstein noticed his blue jeans were "damp around the knee area." (Defs.' 56.1 ¶ 54; see also Pls.' 56.1 at 11-12, ¶ 54.) Leibstein brushed off "any excess lumps or anything hanging on" to his blue jeans and then continued to "work from his feet for most of the rest of the day." (Defs.' 56.1 ¶ 54; see also Pls.' 56.1 at 11-12, ¶ 54.) Leibstein removed his blue jeans later that evening when he undressed to take a shower, around 6:30 or 6:45 PM; at that point, he noticed his knees were "black." (Defs.' 56.1 ¶ 56.) Leibstein was eventually diagnosed with third-degree burns. (Pls.' 56.1 at 14-15, ¶ 11.) Leibstein underwent "debridement procedures and skin grafting surgery as part of his medical treatment followed by extensive physical therapy." (Pls.' 56.1 at 15, ¶ 12.) He has been "left with scarring and restrictions of movement and flexibility." (Pls.' 56.1 at 15, ¶ 12.)

Plaintiffs' Complaint alleges that Defendants failed to provide adequate warnings concerning the Product's hazards and that Defendants' failure to provide such warnings caused Leibstein's injuries. (See Compl. ¶¶ 12-13, 22-23 & 42-43.) Defendants argue that summary judgment is warranted because the Complaint does not specifically allege violations of the FHSA, but rather "alleges a failure to warn based upon duties arising from the common law of the State of New York." (Defs.' Mem. in Supp. of Mot. for Summ. J. ("Defs. SJ Mem.") 2.) Defendants contend that any such causes of action are preempted by the FHSA. (Defs. SJ Mem. 2.) Plaintiffs suggest, however, that "the Court should read the Complaint broadly to find the necessary elements of a claim for violations of the FHSA" already implicit in the Complaint, even in the absence of an amendment. (Pls.' Mem. in Opp'n to Mot. for Summ. J. and in Supp. of Cross-Mot. for Leave to Amend ("Pls. Mem.") 7.) In the alternative, Plaintiffs cross-move for leave to amend the Complaint to specifically allege violations of the FHSA. (Pls.' Mem. 7.) Defendants counter that even if the Complaint were amended to allege violations of the FHSA, summary judgment would still be warranted because (1) FHSA violations did not cause Leibstein's injuries, (2) Leibstein was a "knowledgeable user," and (3) the hazard was "open and obvious." (Defs. SJ Mem. 2-3.) As such, Defendants contend that Plaintiffs' cross-motion for leave to amend should be denied as futile. (Defs. SJ Mem. 2-3.) However, in the event the Court concludes that there are genuine issues of material fact regarding (1) whether FHSA violations caused Leibstein's injuries, (2) whether Leibstein was a "knowledgeable user," and (3) whether the hazard was "open and obvious," Defendants urge the Court to exercise its "discretion to construe the existing Complaint as alleging an FHSA cause of action" so as to avoid further delay in this litigation. (Defs.' Mem. in Opp'n to Cross-Mot. for Leave to Amend 3.)

The parties effectively agree, then, that the existence (or lack thereof) of genuine issues of material fact with regard to the three arguments listed above is ultimately determinative of both motions presently before the Court. If the Court concludes that there are no genuine issues of material fact with regard to any one of these three arguments and that Defendants are entitled to judgment as a matter of law on that argument, then Defendants' motion for summary judgment should be granted and Plaintiffs' motion for leave to amend should be denied as futile. If the Court concludes that there are genuine issues of material fact with regard to all three arguments, then Defendants' motion for summary judgment should be denied and the Compliant should be construed as alleging FHSA causes of action even in the absence of an amendment and, as such, Plaintiffs motion for leave to amend should be denied as unnecessary. The parties further agree that FHSA issues are properly joined and ready for decision. (See Defs.' 56.1 ¶ 3.)

III. SUMMARY JUDGMENT STANDARD

Summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56") is only appropriate where admissible evidence, in the form of affidavits, deposition transcripts, or other documentation, demonstrates both the absence of a genuine issue of material fact and one party's entitlement to judgment as a matter of law. See, e.g., Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir.2008); Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir.1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also SCR Joint Venture L.P. v. Warshawsky, 559 F.3d 133, 137 (2d Cir.2009); Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.2007). No genuine issue of material fact exists when the movant demonstrates, on the basis of the pleadings and submitted evidence, that no rational jury could find in the non-movant's favor. See, e.g., Warshawsky, 559 F.3d at 137; Chertkova v. Conn. Gen'l Life Ins. Co., 92 F.3d 81, 86 (2d Cir.1996) (citing Fed.R.Civ.P. 56(c)). In deciding a summary judgment motion, a court must resolve all factual ambiguities and draw all reasonable inferences in favor of the non-movant. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir.1987).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show there is a genuine issue of material fact to be tried. See, e.g., Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir.1996). The non-movant must present more than a "scintilla of evidence," Del. & Hudson Ry. Co. v. Cons. Rail Corp., 902 F.2d 174, 178 (2d Cir.1990) (quoting ...