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.
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.
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 , quoting Wells
v State of New York
, 228 AD2d 581, 582 [2d Dept 1996], lv denied
NY2d 814 ). 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
; Myers v State of New
, 46 AD3d 1030 [3d Dept 2007]).
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 ; Codling
, 32 NY2d 330, 342 ). 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.
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
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  [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
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
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
. 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
, Bucchan v State of New York
, UID #2006-009-155,
Claim No. 105241, Midey, J. [Mar. 23, 2006]; Manganaro v State of New
, 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
, 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.