CLARKE v. HELENE CURTIS INC

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Supreme Court, Appellate Division, Second Department, New York.

Nnika CLARKE, Respondent, v. HELENE CURTIS, INC., Appellant.

Decided: April 29, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, HOWARD MILLER and STEPHEN G. CRANE, JJ. Lynch Rowin, LLP, New York, NY, (Marc Rowin and Karen L. Kirshenbaum of counsel), for appellant. Teperman and Teperman, New York, NY, (Robert Damino of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Schmidt, J.), dated June 5, 2001, which denied its motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

The plaintiff allegedly developed hidradenitis suppurativa, a dermatologic disease of the sweat glands, after using the defendant's product “Degree” aerosol deodorant.   The plaintiff seeks recovery for her injuries on the theory of breach of implied warranty.   Following discovery, the defendant moved for summary judgment on the grounds that there was no causal relationship between its product and the plaintiff's disease and that an insignificant number of consumers have suffered adverse reactions to its product.   The Supreme Court denied the motion and the defendant appeals.   We reverse.

 “[W]hether the action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer's burden to show that a defect in the product was a substantial factor in causing the injury” (Tardella v. RJR Nabisco, 178 A.D.2d 737, 576 N.Y.S.2d 965;  see Santorelli v. Apple & Eve, 282 A.D.2d 731, 732, 724 N.Y.S.2d 352).  “ ‘The cornerstone rule in products liability is that proof of mere injury furnishes no rational basis for inferring that the product was defective for its intended use.’   The plaintiff must demonstrate, at a minimum, that her injuries are the direct result of the [product] applied * * * and that [the product is] the sole possible cause of those injuries” (Olsovi v. Salon DeBarney, 118 A.D.2d 839, 840, 500 N.Y.S.2d 325, quoting Helene Curtis Indus. v. Pruitt, 385 F.2d 841, 853 [5th Cir.], cert. denied 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652).

 The defendant established its prima facie entitlement to summary judgment by demonstrating that there was no causal relationship between its product and the plaintiff's disease, an essential element of the cause of action to recover damages for breach of implied warranty (see Villariny v. Aveda Corp., 264 A.D.2d 415, 416, 693 N.Y.S.2d 446;  Kracker v. Spartan Chem. Co., 183 A.D.2d 810, 811, 585 N.Y.S.2d 216;  Olsovi v. Salon DeBarney, supra;  Finkelstein v. Chevron Chem. Co., 60 A.D.2d 640, 641, 400 N.Y.S.2d 548).   The plaintiff's evidence in opposition failed to raise a triable issue of fact on causal relationship.   The opinion of the plaintiff's expert physician, a general practitioner, that the plaintiff's disease was triggered by her use of the defendant's product, was speculative and conclusory, and was “devoid of any reference to a foundational scientific basis” (Romano v. Stanley, 90 N.Y.2d 444, 452, 661 N.Y.S.2d 589, 684 N.E.2d 19).   The only other evidence submitted by the plaintiff consisted of the content of certain medical texts contained in the affirmation of her attorney, which constituted inadmissible hearsay (see Sperin v. Good Samaritan Hosp., 250 A.D.2d 755, 672 N.Y.S.2d 254;  Winant v. Carras, 208 A.D.2d 618, 619, 617 N.Y.S.2d 487) and was, therefore, insufficient to defeat the defendant's summary judgment motion (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   In addition, the speculative assertion of the plaintiff's attorney that there may be large numbers of other consumers who have had adverse reactions to the defendant's product but who never complained was insufficient to rebut the defendant's showing that an insubstantial number of consumers have complained of skin reactions to its product (cf.  Hafner v. Guerlain, 34 A.D.2d 162, 164, 310 N.Y.S.2d 141;  Kaempfe v. Lehn & Fink Products Corp., 21 A.D.2d 197, 200, 249 N.Y.S.2d 840, affd. 20 N.Y.2d 818, 284 N.Y.S.2d 708, 231 N.E.2d 294).   Consequently, the Supreme Court erred in denying the defendant's summary judgment motion.

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