Zamboni v. Aladan Corp.

• Decision Date: 20 February 2004
• Docket Number: No. CIV.A. 98-30109-MAP.,CIV.A. 98-30109-MAP.
• Citation: 304 F.Supp.2d 218
• Parties: Dino ZAMBONI and Susan Zamboni, Plaintiffs v. ALADAN CORPORATION and Bio-Flex International, Inc., Defendants
• Court: U.S. District Court — District of Massachusetts

304 F.Supp.2d 218

Dino ZAMBONI and Susan Zamboni, Plaintiffs v. ALADAN CORPORATION and Bio-Flex International, Inc., Defendants

No. CIV.A. 98-30109-MAP.

United States District Court, D. Massachusetts.

February 20, 2004.

COPYRIGHT MATERIAL OMITTED

Mark J. Albano, Dalsey, Ferrara & Albano, Springfield, MA, for Plaintiffs.

Calum B. Anderson, Danaher, Tedford, Lagnese & Neal, P.C., Hartford, CT, Anthony G. Brazil, Morris, Polich & Purdy, Los Angeles, CA, Christopher A. Callanan, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, Richard L. Edwards, Campbell, Campbell, Edwards & Conroy, PC, Boston, MA, Nancy Roux, Danaher, Tedford, Lagnese & Neal, P.C., Hartford, CT, for Defendants.

MEMORANDUM AND ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 25 & 29)

PONSOR, District Judge.

I. INTRODUCTION

Plaintiff Dino Zamboni ("Zamboni") suffers from an acute allergy to latex. He and his wife, Susan Zamboni, have instituted this suit against Aladan Corp. ("Aladan") and Bio-Flex International, Inc. ("Bio-Flex"), manufacturers of latex gloves he wore while employed in various positions at Baystate Medical Center ("BMC") in Springfield, Massachusetts. Their five-count complaint alleges: (1) that defendants were negligent in manufacturing, marketing, and distributing their latex gloves and in failing to warn Zamboni adequately of the dangers associated with latex glove use; (2) that defendants breached the implied warranty of merchantability; (3) that plaintiff Susan Zamboni suffered a loss of consortium as a result of defendants' negligence; (4) that defendant Aladan engaged in unfair and deceptive acts and practices prohibited by Mass. Gen. Laws ch. 93A, §§ 2, 9; and (5) that defendant Bio-Flex engaged in unfair and deceptive acts and practices prohibited by Mass. Gen. Laws ch. 93A, §§ 2, 9.

Defendants have moved for summary judgment on all five counts based on the statute of limitations. In a case such as this invoking diversity jurisdiction, Massachusetts law applies. Foisy v. Royal Maccabees Life Ins. Co., 356 F.3d 141 (1st Cir.2004); Pitts v. Aerolite SPE Corp., 673 F.Supp. 1123, 1127 (D.Mass.1987). Massachusetts law requires that tort actions, or contract actions to recover for personal injuries, be brought within three years after the cause of action accrues. Mass. Gen. Laws ch. 260, § 2A. Consumer protection actions brought under Chapter 93A, on the other hand, must be commenced within four years after accrual. Id. § 5A.

For the reasons set forth below, the court will allow, in part, the defendants' motions for summary judgment.

II. FACTUAL BACKGROUND

A court may only grant summary judgment where the moving party has demonstrated that there are no genuine issues of material fact for trial and, therefore, that it is entitled to judgment as a matter of law. Dasey v. Anderson, 304 F.3d 148, 153 (1st Cir.2002). The court must examine the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party's favor. Id. Accordingly, the facts set out below reflect the record as construed most favorably for the plaintiff.

On October 4, 1993, Zamboni began work at BMC as a "psych sitter," a position in which he oversaw patients under psychiatric evaluation. Occasionally, the job's responsibilities required Zamboni to don latex gloves when handling a patient. A few months after starting work, on February 15, 1994, Zamboni visited the employee health clinic at BMC with a rash on his face. The medical record of that visit documents that Zamboni suspected that the rash developed after his wife began using a new laundry detergent. The attending physician asked Zamboni if he had ever had rashes develop after contact with other latex products, such as toy balloons, to which Zamboni responded in the negative. The physician concluded that the rash may have developed as a reaction to the powder in the latex gloves Zamboni wore. The doctor advised Zamboni to use powder-free gloves in the future.

On April 10, 1994, Zamboni transferred to the position of orderly. This new position required him to wear gloves almost all the time to protect himself from his increased contact with patients. On June 10, 1994, Zamboni returned to the health clinic, this time with a rash on his hands. The medical records for this visit state that this rash differed from the earlier rash on his face. A few days later, Zamboni again reported to the clinic for treatment because the rash on his hands had worsened.

Zamboni worked as an orderly for approximately one year. Throughout this time, Zamboni continued to suffer great discomfort from the skin condition on his hands. He described his hands as having "fissures" and "bleeding" and cracking. (Docket No. 28, App. A at 23.) Prior to his employment at BMC, Zamboni never had suffered from such a skin problem. During this period, BMC repeatedly provided Zamboni with different gloves to try to alleviate his condition. Zamboni generally used powder-free latex gloves, though in an emergency, if no other gloves were on hand, Zamboni used whichever gloves were immediately available.

Zamboni alleges — and Aladan does not dispute — that some of the gloves he wore were manufactured by Aladan. Bio-Flex, in contrast, contends that it did not sell gloves of any kind to BMC until after April 11, 1995, and then only sold powder-free latex gloves. Notwithstanding Bio-Flex's contention, Zamboni testified in his deposition that, during his time as an orderly, he wore latex powdered and powder-free gloves manufactured by both Aladan and Bio-flex. Furthermore, Zamboni asserts that his skin problem persisted whether he wore, or was exposed to, powdered or powder-free latex gloves.

Three months into his time as an orderly, in June 1994, the employee health clinic referred Zamboni to a dermatologist. Medical records dated June 22, 1994, indicate that the dermatologist tentatively diagnosed his skin problem as eczematous dermatitis. The record also states that "he had an allergic reaction to Latex gloves but not on his hands but rather on his face. In any case he's now using non-powdered gloves." (Docket No. 32, App. F.) Later, in November of 1994, Zamboni visited the emergency room of BMC for a non-work related burn that he sustained on his arm. In records from that visit, the phrase "latex gloves?" was written under the heading "allergies."

In November 1994, the dermatologist's office noted that Zamboni should be patch tested to see if the gloves he had been using were playing any role in causing his skin condition. After another visit to BMC's employee clinic on December 5, 1994, Zamboni was authorized to return to work with the restriction that he wear powder-free vinyl gloves and cotton liners. Despite treatment from both medical professionals at the health clinic and at the dermatologist, Zamboni's skin condition did not improve.

On March 26, 1995, BMC transferred Zamboni to the position of cardiac monitor observer ("CMO"). Zamboni testified that the reason behind this transfer was to remove him from the clinical environment in an effort to stop his skin reactions. Initially, Zamboni's symptoms greatly abated. Within a few weeks, however, his allergy symptoms returned, this time with newly developed respiratory problems. Though he was not using latex gloves (unless no other gloves were on hand in an emergency) a rash reappeared on his skin, his hands swelled, and he began having difficulty breathing.

Defendants have anchored their contention that Zamboni had notice of the cause of his skin problems partly on the timing of his academic pursuits. In 1992, Zamboni enrolled in a two-year nursing program at Springfield Technical Community College ("STCC"). In the fall of 1993, around the time that he started as a "psych sitter" at BMC, Zamboni registered for five classes in pursuit of his degree, though he withdrew from three of these shortly thereafter. The following spring semester, in 1994, he registered for only one course, but at some point before April 22, 1994, he withdrew from that course as well. That summer, Zamboni was accepted to the department of "liberal arts/general studies/health career core" for the fall semester of 1994. (Docket No. 48, App. B.)

Defendants argue that the undisputed facts of record confirm that Zamboni withdrew from his classes in the spring of 1994 because he knew at that point that he was allergic to latex and, therefore, could not complete the clinical requirements of the nursing program. They point to a portion of Zamboni's deposition testimony where he stated that he eventually left the nursing program altogether because the clinical aspect of the program required him to use gloves. In fact, the deposition testimony is not quite so clear. When asked why he had withdrawn from his classes, Zamboni stated that he quit school because of his hands, adding, "I couldn't concentrate; I was in pain; I had my eczema problem, so-called what they said, and it was just — then I was on medication, and I just lost all concentration and everything; and I was very depressed because of that." (Docket 32, App. C at 73.)

Zamboni did admit at his deposition that he had begun to suspect latex gloves caused his skin problems during his work as an orderly, sometime between April 1994 and March 1995. He further testified that, throughout this period, he told his wife about his skin problem, his diagnosis, and his treatment. She knew of all these problems as he went through them.

Zamboni was positively diagnosed with an allergy to latex in the fall of 1997. His allergy included a reactivity to airborne particles. In the fall of 1997, Zamboni's continued reactions resulted in his leaving the clinical environment at BMC for a position in administration, where he would no longer be exposed to latex gloves. On June 8, 1998, Zamboni and his wife filed this cause of action.

III. DISCUSSION

Defendants, as noted, contend that this lawsuit was...