Herzfeld & Rubin, P.C.- Publications

Products Liability 'Abulhasan,' 'Batori': Uncertainties in Tracing Products By Michael Hoenig - New York Law Journal - February 14, 2005	Print article

To pursue a viable claim in products liability, there must be proof of "product identification." The claimant must establish that the defendant's relationship with the allegedly defective product stemmed from a sale of the product or some other transaction or connection the law recognizes as equivalent to a sale.

This does not mean that the injured plaintiff must have been a purchaser or user of the defective product. He or she may have been an innocent bystander, injured when someone else used it. In order to hold a particular defendant liable under products liability theories, however, the defendant's relationship to the product in issue must be a cognizable product liability relationship.

Typically, that involves a "sale." Thus, for example, a defendant who merely supplied a service (e.g., a repair), as opposed to a sale of the injuring instrumentality, is not a "products liability" defendant. Other tort theories, such as ordinary negligence, may be applicable to nonseller defendants who cause injury. Usually, manufacturers, wholesalers, distributors and retailers in the chain by which the defective product is placed into the stream of commerce are covered by the law of products liability.

Generally, the plaintiff must establish by competent proof that the defendant was the actual manufacturer, seller or supplier of the product claimed to be defective.¹ Failure of proof in this regard justifies dismissal of the complaint.² Accordingly, this is a burden of proof not to be taken lightly. Sometimes, difficulties in product identification can arise from passage of time, spoliation of the evidence, corporate changes and a variety of circumstances. The identity of the manufacturer or seller can be proven by circumstantial evidence but such evidence must establish that it was reasonably probable that defendant was the source of the offending product. Thus, mere possibility or evenly balanced evidence or speculation or conjecture is not enough.³

'Abulhasan v. Uniroyal-Goodrich Tire'

Two recent decisions, one state and one federal, illustrate how crucial this essential proof element is. The first, Abulhasan v. Uniroyal-Goodrich Tire Co.,⁴ is virtually "hot off the press," an Appellate Division, Third Department decision issued on Jan. 20, 2005. Plaintiff sued for his wife's injuries and death in an auto accident allegedly caused by a tire blow out. Claiming a manufacturing defect in the tire, the husband sued Uniroyal-Goodrich, alleged to be the tire manufacturer, as well as Goldring Motors, the distributor of the car on which the tire was mounted.

After some premature motion practice and then the conclusion of discovery, Uniroyal moved for summary judgment claiming that it was not the manufacturer and, further, that plaintiff failed to preserve the tire and the car, thereby preventing Uniroyal from inspecting these "crown jewels." The motion was, therefore, two-pronged: (1) defendant was not the tire manufacturer; and (2) plaintiff prejudicially spoliated the evidence. The car distributor also moved for summary judgment on spoliation grounds. The trial court denied the motions and the appeal followed.

Proof Insufficient

Uniroyal argued that plaintiff had failed to demonstrate that it was more probable than not that defendant manufactured the tire. The Third Department agreed. On this kind of motion, the defendant has an initial burden to establish that it did not manufacture the tire. Then the plaintiff must establish that "it was reasonably probable, and not merely possible, that defendant indeed manufactured the subject tire." Plaintiff offered the affidavit of N, a "forensic tire analyst." N asserted that, based on his examination of the tire remnants, photographs taken before the vehicle was disposed of and deposition testimony during discovery, it was his opinion that Uniroyal manufactured the subject tire.

To support this conclusion, N asserted that the tire had been manufactured in the United States because the letter "P" prefaced the numbers denoting the tire size. However, uncontroverted record evidence showed that tires manufactured in Canada also contained the letter "P" in their size designation. N also asserted that the tread pattern on the remaining tire fragments were "unique" to Uniroyal and the latter copyrighted them. Yet, N offered no factual basis for this statement. N also premised his opinion on the fact that a number of employees of tire plants associated with Uniroyal were unaware whether "Tiger Paw Plus" tires were manufactured at any plants other than Uniroyal's. But, said the Appellate Division, that merely proves the employees' unawareness, "one way or the other," whether such tires were made in non-Uniroyal plants.

In opposition, defendant provided the affidavit of H, a legal counsel to Uniroyal-Goodrich Canada Inc., who stated that the presence of the name "Uniroyal" on the tire wall was not proof that defendant made the tire. Indeed, at least three companies other than defendant could have manufactured it and there was no way of knowing which of those companies made the subject tire. Then Uniroyal submitted the affidavit of B, its director of industry standards and government relations, asserting that companies located in and outside the United States made tires with the words "Uniroyal," "Tiger Paw" and "Tiger Paw Plus" etched on the tire wall during the relevant period. B also said that a number depicted in a photograph of the tire wall did not identify defendant as the tire's manufacturer.

Indeed, continued B's affidavit, the first two or three characters in what plaintiff called the "Department of Transportation (DOT) identification number" have never been associated with defendant.

Finally, B averred that DOT identification numbers are always numerical whereas here the DOT number ends with the letter "T."

Spoliation Prejudicial

The Third Department panel concluded that the foregoing proof revealed only "the possibility, rather than a probability," that Uniroyal was the manufacturer of the subject tire. This was "insufficient to raise a triable issue of fact." Further, the spoliation-of-evidence issue loomed large. The Third Department concluded that summary judgment should have been granted "by reason of plaintiff's spoliation of the subject tire and the numerous photographs taken thereof." The Appellate Division said that it is "axiomatic that where critical items of evidence are willfully disposed of by a litigant before an opposing party has an opportunity to review and inspect them, elementary fairness may require that the complaint be dismissed." Though striking a party's pleadings is discretionary, given the critical nature of the missing evidence, the lower court's "failure to grant the ultimate sanction constituted an abuse of discretion."

While it was questionable whether plaintiff disposed of the evidence "with an eye towards ultimate litigation," the court observed that, immediately following the accident, plaintiff made the statement that someone was going to "pay." Further, prior to selling the car as scrap, plaintiff took numerous photos of the left rear tire but was only able to produce a few at the time of discovery. Had the car and/or the photographs been retained, defendant "almost assuredly would have been able to demonstrate whether it did or did not manufacture the subject tire." Uniroyal "has been severely prejudiced by such spoliation," said the court. Even plaintiff's own expert noted, "in a perfect world, I would have preferred to have an opportunity to inspect the entire tire." The car seller, who also moved on spoliation grounds, likewise was prejudiced and was entitled to summary judgment.

Southern District of N.Y.

In the federal decision, issued in November of last year, U.S. District Judge Shira A. Scheindlin of the Southern District of New York likewise considered a defendant's summary judgment motion contending plaintiff's failure to prove product identification. This issue arose out of large-scale litigation in the aftermath of a ski train fire which occurred over four years earlier in Austria. Some 155 passengers and crew members perished. The case is Batori v. American Permalight, Inc.⁵ Survivors and relatives sued a number of corporate defendants who designed, manufactured and sold light sticks that were present on the train at the time of the fire. Plaintiffs claimed that the light sticks caused the fire, which had started in a conductor's cabin, to accelerate, ultimately contributing to the death and serious injuries of the passengers.

Defendant American Cyanamid moved for summary judgment asserting it did not manufacture the light sticks that were on the train and, further, that plaintiffs failed to provide any evidence to raise a genuine issue of fact that defendant was the producer or seller of the product. Defendant, in the Affirmation of H, one of its counsel, offered evidence that it sold its light stick business to a firm called Omniglow in March of 1993. Additionally, H's Affirmation stated that "personal information" he received from an attorney for an Austrian company indicates that the light sticks actually on the train were purchased in 1996 and had an expiration date of 2000. Because the inventory of light sticks sold by defendant to Omniglow in 1993 was allegedly exhausted before 1995, defendant argued that it could not have manufactured the light sticks that were on the fateful train in November 2000.

Proof Fails

In response, plaintiffs contended that there existed genuine factual issues as to defendant's "ultimate involvement with the light sticks in question" and requested additional discovery in order to "more fully oppose defendant's motion." Judge Scheindlin observed that, while defendant claimed not to have manufactured the subject light sticks, "it failed to offer competent evidence to support this contention." Although defendant offered a sales agreement as evidence of sale of the light stick business to Omniglow in 1993, defendant's remaining assertions of fact — exhaustion of that inventory by 1995 and manufacture of the subject light sticks in 1996 — were mere affirmations by defendant's counsel H but were not stated to be based on personal knowledge. H simply stated that, as a member of the firm representing defendants, he is "fully familiar with the facts and circumstances of this matter."

Further, to the extent H's assertions were based on what the Austrian attorney advised him, they "would be inadmissible hearsay if offered at trial and must therefore be disregarded."

Did these deficiencies doom the motion? "No," held the court. Plaintiff had an obligation to come forward and make a sufficient showing on an essential element with respect to which it has the burden of proof. Thus, while the moving party bears initial responsibility to inform the court of the basis for its motion, "there is no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent's claim." Summary judgment is appropriate, after adequate time for discovery, when the opposing party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. When the party opposing summary judgment fails to make such a showing there is a complete failure of proof concerning an essential element of the case rendering all other facts "immaterial."

Plaintiffs' Failure

So it was with the product identification issue. Plaintiffs "failed to offer any evidence suggesting that American Cyanamid manufactured or sold the light sticks that were on the train at the time of the accident." Under New York law, the plaintiff bears the burden of establishing that the product accused of causing the injury is defendant's product. Plaintiff had the burden of showing a genuine issue of fact regarding whether defendant produced or sold the light sticks which were on that fiery train. Because of plaintiff's failure to make any showing concerning this essential element, summary judgment is proper. Plaintiff's argument that they must be granted additional discovery in order to "more fully oppose" defendant's motion was rejected.

Federal Rule of Civil Procedure 56(f) governs requests for additional discovery. The party must file an affidavit explaining: (1) what facts are sought and how they are to be obtained; (2) how those facts are reasonably expected to create a genuine issue of material fact; (3) what effort the affiant has made to obtain them; and (4) why the affiant was unsuccessful in those efforts.

Here plaintiff's counsel submitted an affidavit requesting specified discovery but offered no explanation as to how this would create a genuine issue of material fact. Nor were other indicia of Rule 56(f)'s requirements set forth. "A discovery request based on 'speculation as to what could potentially be discovered' is insufficient to defeat summary judgment." Accordingly, the request for additional discovery was denied and summary judgment was granted.

Uncertainties in Tracing

Readers will note that in each case failure to prove product identification doomed the claims not because the moving defendant's proof was convincingly dispositive that it did not make or sell the product. Rather, it was plaintiff's failure to offer competent evidence as to an essential element of its case and on which it had the burden of proof. Product identification is a sine qua non of the product claim's viability. In an era of mergers and acquisitions, bankruptcies and sales of company assets, increased global trade and imports of products made by unfamiliar entities abroad, and the extended lives of older products, whether because they are more durable or because repair specialists have learned how to keep them going, we can expect continued uncertainties in tracing some products to their producers or sellers. Product identification is likely to remain a significant issue for both sides in some cases.

Michael Hoenig is a member of Herzfeld & Rubin

Endnotes:________________________________________________________________________________________________________
1. Healey v. Firestone Tire & Rubber Co., 87 NY2d 596 (1996); Hymowitz v. Eli Lilly & Co., 73 NY2d 487, 504 cert. denied, 493 U.S. 944 (1989).
2. D'Amico v. Manufacturers Hanover Trust Co., 173 AD2d 263, 569 NYS2d 962 (1st Dept. 1991).
3. See Comment to NY PJI 2:141.
4. 2005 NY Slip Op 00296 (3d Dept., Jan. 20, 2005).
5. 2004 U.S. Dist. LEXIS 23233 (SDNY Nov. 16, 2004); New York Law Journal, Nov. 23, 2004, p. 23.