Summary
In Collins, the Western District of Kentucky found the plaintiff's circumstantial evidence attempting to link the defendant latex glove manufacturer with her latex allergy was insufficient to withstand summary judgment where the attempted link was based on speculation.
Summary of this case from Brown v. Arch Wood Prot., Inc.Opinion
CIVIL ACTION NO. 3:98-CV-259-H
November 19, 2003
MEMORANDUM OPINION
This case is on conditional remand from the Judicial Panel on Multi-District Litigation. Defendant, Ansell Healthcare Products, Inc., ("Ansell") moves for summary judgment on all Plaintiff's causes of action, including claims in strict liability, negligence, breach of warranty, failure to warn, fraudulent concealment, misrepresentation, and unfair trade practices. Ansell argues Plaintiff cannot specifically identify an Ansell product as proximate cause of her injury, a latex allergy, Type I, with respiratory involvement. Plaintiff alleges that she contracted the allergy from physical contact with Ansell's defective latex gloves or by breathing airborne latex contaminants derived from those gloves. As of this date, the circumstantial evidence fails to rise to the quantum from which a reasonable jury could conclude it probable, or more likely than not, that Ansell's gloves caused Plaintiff's injuries. However, for the reasons stated, the Court will allow some additional time for Plaintiff to gather evidence.
Under Kentucky's Unfair Trade Practices Act, K.R.S. 367.170, a plaintiff in a private cause of action must assert that the item was used for personal, family, or household use. Plaintiff never asserted the gloves were used in this manner. Therefore, Ansell's motion for summary judgment on this cause of action is sustained without further discussion.
I.
Plaintiff sued a number of companies that manufactured, designed, and/or sold latex gloves used by healthcare workers. Ansell was one of those companies. Plaintiff alleges that she developed a latex allergy with respiratory involvement, because of physical contact with defective latex gloves and by breathing airborne latex contaminants occurring in a latex environment. Plaintiff's complaint states that she actually wore Ansell's gloves during her employment at Norton's Hospital. Also, Plaintiff's answers to Ansell's Revised Product Identification Questionnaire ("Questionnaire") state that she wore Ansell's gloves when Baxter Healthcare Corporation ("Baxter") gloves were unavailable, and that she was exposed to Ansell's gloves when her co-workers wore them.
In Plaintiff's complaint she listed as additional defendants: Baxter Healthcare Corporation, Allegiance Healthcare Corporation (a successor in interest of Baxter), Smith Nephew AHP, Inc., and over a hundred John Does, all of which possibly manufactured, designed, or sold powdered and/or non-powdered, sterile and/or non-sterile, latex examination and surgical gloves. The claims against Smith Nephew have been voluntarily dismissed.
In her deposition, however, Plaintiff states that she used and was exposed only to Baxter gloves while working as a nurse's assistant. Other than Baxter gloves, she could identify no other brands or manufacturers used at the hospital. Plaintiff was unaware that her Questionnaire responses identified brands other than Baxter. She testified that those answers did not come from her own personal knowledge. Plaintiff has no recollection of wearing Ansell gloves, nor any recollection of being exposed to gloves she knows or can identify as manufactured by Ansell.
Once Plaintiff discovered that her allergy could be triggered by both wearing the gloves or by breathing in latex, she was required to work in a latex free environment. She was reassigned to guest services in February, 1998.
Plaintiff signed and answered numerous times throughout Ansell's Revised Products Identification Questionnaire that all information about the different manufacturers and exposures was based wholly on her own personal recollection.
The deposition of John Phillip Cooper is the only other evidence which might support a claim against Ansell. Mr. Cooper is the Director of Distribution for Norton Healthcare. He testified that Ansell supplied some latex gloves to the hospital which were distributed throughout. Plaintiff argues that Mr. Cooper's testimony shows that the gloves were used throughout the hospital floors. Since Ansell's gloves were used in the hospital, Plaintiff could have come into contact with or been exposed to them. However, Mr. Cooper also said that Ansell's gloves were only used in the Pavilion, a facility separated from Plaintiff's place of work. Cooper stated he could not exclude the theoretical possibility of Ansell's gloves moving from one part of the hospital to another, but that it was unlikely. Additionally, Mr. Cooper testified that Norton bought only a small number of Ansell's gloves; they were only used in the Pavilion; and they were brown, white, or powder free surgeon or vinyl gloves — all of which Plaintiff denies ever using or being exposed to.
Norton Healthcare Pavilion is a separate facility from the Norton's Hospital where Plaintiff worked. The facilities are connected by speedway and all of the facilities run on the same central power system, so that re-circulated air could possibly be transferred from one facility to another. Plaintiff asserts because the allergy is also caused by breathing airborne latex contaminants, and Ansell's gloves were used in at least one area, such contaminants could be transferred over to where she worked and caused her injury.
Plaintiff's answers to the Questionnaire states all of the gloves she used or was exposed to were latex, powdered, beige or yellowish brown, and were for examination.
II.
Summary judgment is appropriate if there is no genuine issue of material fact, construing the evidence in the most favorable light to the party opposing the motion and against the movant. See C S Fuel, Inc. v. Clark Equipment Co., 525 F. Supp. 949, 954 (E.D. Ky. 1981); see also Scheck Mechanical Corp. v. Borden Inc., 186 F. Supp.2d 724, 728-9 (W.D. Ky. 2001). Ansell argues a reasonable juror could not conclude, based on the evidence viewed in the light most favorable to Plaintiff, it was more likely than not Ansell's products caused Plaintiff's injuries. Plaintiff has the burden to establish Ansell's product was the factual and legal cause of her harm. C S Fuel, 525 F. Supp. at 954. Plaintiff cannot rest upon mere allegations of her pleadings, but must respond, with an affidavit or otherwise, setting forth specific facts showing a genuine issue for trial. Hendrickson v. Peabody Coal Co., 37 F. Supp.2d 947, 950 (W.D. Ky. 1997). Ansell argues Plaintiff cannot produce any evidence or specific facts, from her own testimony or other parts of the record, that she used or was exposed to Ansell's product in order to prove causation.III.
The threshold requirement of a products liability claim is identification of a product or instrumentality which causes an injury. For the moment, the Court will assume that Ansell's latex gloves are defective because the medical record apparently does establish that a defect in the latex used to manufacture certain gloves triggers allergic reactions in many persons. However, Plaintiffs difficulty is tracing her injury to Ansell's particular product. As Kentucky's highest court has said:
Raising the inference of negligence, however, is not sufficient alone because plaintiff has the burden of proving that the negligence was a substantial factor in the result, or was the proximate cause of the injury. The thread of causation must begin with [the defective product causing the injury], an identifiable instrumentality. If this must . . . be inferred, then the manner in which the accident occurred rests in surmise or speculation, and the plaintiff cannot recover even [if] there is evidence supporting the charge of negligence.Rollins v. Avery, 296 S.W.2d 214, 216-17 (Ky. 1956).
By her own testimony, Plaintiff cannot identify Ansell's product as the instrument causing her injury. Plaintiff cannot establish, demonstrate, or produce evidence that she ever used or was exposed to any Ansell product. In her deposition, Plaintiff disavows coming in direct contact with other than Baxter gloves. Where Plaintiff specifically disavows knowledge about or the truth of answers provided in response to interrogatories, the Court cannot accept those answers as valid evidence.
The Court can only conclude that the gloves she actually came in contact with and wore were Baxter gloves. In the Questionnaire, Plaintiff said she used Baxter gloves and only used Ansell's gloves when those were out. However, she then contradicts her answers in the Questionnaire when she candidly admitted she was not the source of the information reflected in the discovery responses indicating usage of Ansell's gloves. Therefore, the only evidence of direct exposure is to Baxter gloves. She has no knowledge of ever wearing Ansell's gloves or being treated and touched by someone wearing Ansell's gloves.
Plaintiff argues because Ansell's gloves were used in part of the hospital, they could have caused her allergy. While this is a reasonable theory, so far as the Court can determine, it has an evidentiary foundation quite insufficient to sustain the reasonable inferences necessary to support it. Circumstantial evidence must be enough to elevate a theory from a mere possibility to an inference that it is more likely than not that Ansell's gloves caused Plaintiff's injury. Holbrook v. W.A. Rose, 458 S.W.2d 155, 158 (Ky. 1970); see also Perkins v. Trailco Manufacturing and Sales, 613 S.W.2d 855, 857 (Ky. 1981) (citations omitted). Here, the circumstances surrounding Plaintiffs injury fails to justify such an inference.
True, Ansell's gloves were used at Norton Hospital, though primarily in a different building from where Plaintiff worked. It is possible that persons wearing Ansell's gloves moved from place to place. However, one can only speculate about this. Plaintiff actually wore Baxter gloves every day. She was exposed to co-workers wearing Baxter gloves every day. Unquestionably, Plaintiff received exposure to Baxter gloves. Her direct exposure to Ansell, while possible, is merely speculation.
Absent evidence of contact exposure, Plaintiff theorizes that airborne contaminants from Ansell's product caused her allergy. A pedway does connect the different buildings and re-circulated air can possibly deliver the offending latex from Ansell's product. Such inference seems quite speculative under the circumstances. To infer causation, a fact finder must conclude airborne particles from Ansell gloves traveled through the air from one distinct section of Norton's Hospital to another where they came into Plaintiff's presence. A fact finder must then infer that these airborne particles of Ansell latex were a substantial and proximate cause of her injuries, rather than the Baxter gloves which Plaintiff wore on a regular basis. "It is not sufficient, [to prove causation], to present a number of circumstances about which one might theorize as to the cause of the accident." Briner v. General Motors Corp., 461 S.W.2d 99, 102 (Ky. 1971). The Court finds no factual or medical evidence upon which a reasonable fact finder could conclude that the substantial and proximate cause of Plaintiff's allergies are more likely than not her exposure to Ansell latex gloves. The exposure which is proven is to Baxter latex gloves. The rest is speculation at this point.
IV.
Plaintiff's only other argument is that her testimony, in her Deposition and Questionnaire, do not constitute her only proof of Ansell's causation. Plaintiff says she has not received all the evidence or record from the Judicial Panel on Multi District Litigation, from which this case was remanded. Plaintiff says that evidence from the Multi District Litigation establishes causation between Ansell's gloves and her allergy. Because no discovery schedule is established, Plaintiff has not deposed Ansell representatives. However, all other company defendants were permitted to depose Plaintiff before remanding to this Court. Plaintiff states she is in the process of obtaining discovery through her Multi District counsel. She requests additional time to complete these efforts. The Court is unsure if this additional causation evidence will prevent summary judgment for Ansell. However, the Court is willing to allow Plaintiff additional time to obtain the evidence supporting her claim against Ansell. If the Court is not convinced the additional evidence proves causation, for purposes of summary judgment, Ansell's motion will be sustained at that time.
The Court will enter an order consistent with this Memorandum Opinion.