New York State Court of Claims

New York State Court of Claims

MINIX v. THE STATE OF NEW YORK, #2009-038-103, Claim No. 110439


Synopsis


Claim by inmate for injuries allegedly sustained from defective Corcarft soap denied after trial. Claimant did not demonstrate that the soap was defective, nor did he demonstrate that a substantial number of users of the soap were allergic or sensitive t it, and thus, he did not establish that there was a duty to warn of the potential for injury.

Case Information

UID:
2009-038-103
Claimant(s):
JOSHUA J. MINIX
Claimant short name:
MINIX
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
110439
Motion number(s):

Cross-motion number(s):

Judge:
W. BROOKS DeBOW
Claimant’s attorney:
JOSHUA J. MINIX, Pro se
Defendant’s attorney:
ANDREW M. CUOMO, Attorney General of the State of New York
By: Michael Rizzo, Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
June 24, 2009
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

This claim seeks damages for skin irritation allegedly caused by soap that was provided by defendant while claimant was incarcerated in the Special Housing Unit (SHU) at Upstate Correctional Facility (CF) from October through December 2004. The trial of this claim was conducted by videoconference on March 25, 2009, with the parties appearing at Clinton CF in Dannemora, New York and the Court sitting in Saratoga Springs, New York. Claimant offered his own testimony; defendant offered the testimony of Department of Correctional Services (DOCS) Nurse Administrator Brian Lecuyer. Numerous documents were received into evidence. After listening to the witnesses testify and observing their demeanor as they did so, and upon consideration of that evidence and all of the other evidence received at trial and the applicable law, the Court concludes that defendant is not liable to claimant for his injuries.
FINDINGS OF FACT
On October 21, 2004, claimant was transferred from Clinton CF to Upstate CF and was admitted into the SHU, where claimant was not permitted to use his own soap. He was issued soap that was manufactured by Corcraft, an entity that has been recognized as a division of DOCS.[1] After he started using the Corcraft soap, claimant’s skin gradually dried out and became darkly discolored and blotchy. His skin constantly itched, and it became painful as the result of scratching.

Claimant testified that he reported to sick call on November 5, 2004 to seek treatment for his skin condition, and was told by a nurse that he should buy lotion to ameliorate the condition. Claimant thereafter used his cellmate’s lotion, but it did not cure the problem or provide him with any relief. Claimant testified that he made a second sick call on December 23, 2004, at which time he asked the nurse to see a doctor to determine whether his skin problems were caused by the Corcraft soap. Claimant testified that the nurse told him to drink water to address his skin condition. On December 24, 2004, claimant was transferred to Attica CF. A health screening document that was executed upon claimant’s receipt at Attica CF noted his complaints of a rash and sensitive skin, and further noted the presence of a rash on his left leg (Defendant’s Exhibit A-2).

Claimant reported to sick call at Attica CF for his continuing skin condition on February 1, 2005 and saw Nurse Turton, who diagnosed his skin condition as being cosmetic, and told him that no treatment was required and that he would not be referred to a doctor. Nurse Turton also advised claimant he should buy his own soap if he did not like the Corcraft soap (see Defendant’s Exhibit A-3). Claimant testified that his wife thereafter brought him some cocoa butter soap and lotions that helped to clear up his skin condition, which subsided around mid-March 2005.

The Court received into evidence claimant’s Exhibit 12, the “Material Safety Data Sheet” for the Corcraft soap, which states that overexposure to the soap “[m]ay irritate the skin of sensitive individuals” (id. at section 3), and that the soap can “irritate the skin of some sensitive individuals” (id., at section 7). Claimant offered no evidence regarding the purpose, use or the scope of the distribution of the Material Safety Data Sheet by DOCS.
DISCUSSION
Upon the close of claimant’s proof, defendant moved to dismiss the claim for failure to make a prima facie case due to claimant’s failure to offer expert medical testimony. The motion must be granted with respect to claimant’s causes of action sounding in medical malpractice and medical negligence, which are based upon claimant’s allegations that medical staff at Upstate CF and Attica CF should have referred him to a doctor, and that they should have provided him with over-the-counter treatments.

“Whether the claim is grounded in negligence or medical malpractice, ‘[w]here medical issues are not within the ordinary experience and knowledge of lay persons, expert medical opinion is a required element of a prima facie case’ ” (Tatta v State of New York, 19 AD3d 817, 818 [3d Dept 2005], lv denied 5 NY3d 712 [2005], quoting Wells v State of New York, 228 AD2d 581, 582 [2d Dept 1996], lv denied 88 NY2d 814 [1996]). The issues of the nature and cause of claimant’s skin condition, whether it required the care of a doctor rather than medical staff, and whether over-the-counter medications should have been provided are all medical questions outside the ordinary experience and knowledge of a layperson that require expert testimony. At trial, claimant failed to offer expert testimony – or any other competent evidence – that addresses these medical questions, and thus, he failed to establish a prima facie case of medical negligence or medical malpractice. Accordingly, the medical negligence/medical malpractice cause of action must be dismissed (see Tatta v State of New York, supra; Myers v State of New York, 46 AD3d 1030 [3d Dept 2007]).[2]

To the extent that claimant argues that defendant was ministerially negligent because the medical staff’s omissions constituted violations of defendant’s own “Health Services Policy Manual,” such a contention lacks evidentiary support because claimant offered neither the manual nor relevant excerpts thereof into evidence.

Defendant’s motion to dismiss did not, however, address claimant’s cause of action that sounds in products liability. At trial, claimant argued that defendant should be found liable to him because: (1) it manufactured a product that was defective and which was unreasonably dangerous, and that the defective product caused his injuries; and (2) knowing that the product could cause irritation, defendant failed to warn users and staff that the soap could cause skin irritation.

A manufacturer may be answerable in strict products liability when it manufactures a defective product that causes injury (see Robinson v Reed-Prentice Div. of Package Mach. Co., 49 NY2d 471, 478 [1980]; Codling v Paglia, 32 NY2d 330, 342 [1973]). However, there can be no recovery under a theory of strict products liability if it is not shown that the product at issue was defective (see Jerry v Borden Co., 45 AD2d 344, 348-349 [2d Dept 1974] [to sustain claim of strict products liability against manufacturer, plaintiff must demonstrate that hair straightening product that caused baldness was defective either in formulation or in manufacture]). The mere fact that an injury ensued after use of a product does not ipso facto mean that the product was defective. Here, although the ingredients of the Corcraft Soap are listed on the Material Safety Data Sheet that was received into evidence, claimant offered no evidence that the soap was defective in its formulation or manufacture (see id.). Claimant’s effort to establish that the soap was defective by demonstrating that other inmates suffered irritated skin after using the Corcraft soap is unavailing because claimant sought to prove such injuries to others by a proffer of inadmissible evidence.[3]

Turning to claimant’s theory that defendant should be liable for failing to warn of the potentially deleterious effects of the Corcraft soap, a duty to warn of an alleged danger in the use of an apparently safe product may exist where the product may become unreasonably dangerous in its use (Kaempfe v Lehn & Fink Prods. Corp., 21 AD2d 197, 199-200 [1st Dept 1964], affd 20 NY2d 818 [1967] [considering the duty to warn where a consumer of deodorant was injured by an ingredient to which she was allergic]). However, “[i]n the case of the nonpoisonous and reasonably safe product in general use, the duty to warn depends upon whether or not it was reasonably foreseeable by the [manufacturer] that a substantial number of the population may be so allergic [or sensitive] to the product as to sustain an injury of consequences from its use” (Kaempfe v Lehn & Fink Prods. Corp., at 200).

Claimant failed to prove by a preponderance of the credible evidence that defendant knew or should have known that a substantial number of users of the Corcraft soap were allergic or sensitive to it. Claimant failed to adduce evidence to demonstrate that his skin’s reaction to the soap – that was apparently used universally throughout the DOCS system – was anything more than an isolated skin reaction borne of claimant’s skin sensitivity. As noted above, claimant’s effort to establish that other inmates suffered skin irritation from the Corcraft soap failed on hearsay grounds. Moreover, even if claimant had successfully demonstrated that four other inmates suffered irritation from the Corcraft soap, that evidence, without more, is insufficient to demonstrate that a substantial number of the population may be allergic or sensitive to the Corcraft soap (see Kaempfe v Lehn & Fink Prods. Corp., supra). Thus, claimant did not demonstrate that a duty to warn arose.

In summary, claimant did not establish a prima facie case of medical negligence or medical malpractice. Further, claimant failed to demonstrate by a preponderance of the credible evidence at trial that defendant was ministerially negligent, that the Corcraft soap was defective, or that defendant had a duty to warn of the potential for irritation to consumers who might have a sensitivity to the soap
CONCLUSION
Defendant is not liable to claimant for his injuries, and the claim must be dismissed. The Chief Clerk is directed to enter judgment in favor of defendant, dismissing the claim. Any motions not previously ruled upon are hereby DENIED.

Let judgment be entered accordingly.


June 24, 2009
Albany, New York

HON. W. BROOKS DEBOW
Judge of the Court of Claims




[1]. Claimant’s Exhibit 12, a document labeled “Material Safety Data Sheet” for “Corcraft Deoderant Soap (Antibacterial).” identifies Corcraft and DOCS as related entities. Corcraft Industries has been repeatedly recognized as a division of DOCS (see e.g., Bucchan v State of New York, UID #2006-009-155, Claim No. 105241, Midey, J. [Mar. 23, 2006]; Manganaro v State of New York, UID #2004-015-599, Claim No. 105912, Collins, J. [July 16, 2004]; Santos v State of New York, UID #2002-029-216, Claim No. 102473, Motion No. M-64661, Mignano, J. [Sep. 23, 2002]; O’Connor v State of New York, UID #2001-013-502, Claim No. 91134, Patti, J. [Sep. 27, 2001]). At trial, defendant did not dispute that Corcraft was a division of DOCS, or that defendant should be liable to claimant as a manufacturer of the soap.
[2]. Claimant’s reliance on CPLR § 3012-a (f) for the proposition that he need not proffer expert testimony is unavailing, as that provision of law excuses a pro se litigant from submitting a certificate of merit with a medical malpractice claim when it is filed, but does not dispense with the requirement of expert proof at trial.
[3]. Claimant offered into evidence four exhibits (Claimant’s Exhibits 7 through 9 and 13) that are affidavits of other inmates, who aver that the Corcraft soap causes them to suffer various skin problems. Defendant objected to these exhibits on hearsay grounds. After reviewing the exhibits, the Court sustains defendant’s objection, and Exhibits 7 through 9 and 13 are not received into evidence (compare Zenkel v Oneida County Creameries Co., 104 Misc 251 [Sup Ct, Monroe County 1918], affd 188 App Div 905 [4th Dept 1919] [testimony of witness who had become ill after eating same brand of cheese as plaintiff was competent, admissible proof of character of the cheese]; compare also Sawyer v Dreis & Krump Mfg. Co., 67 NY2d 328, 336 [1986] [questions permitted of witness to establish that witness was aware of prior accidents that were similar to plaintiff’s accident]).