Cowan v. Costco Wholesale Corp. et al

Filing 31

MEMORANDUM AND ORDER: For the reasons in the attached, Defendants' motion to dismiss is granted as to Plaintiff's manufacturing defect and express warranty claims and otherwise denied. Plaintiff's manufacturing defect and express warr anty claims are, therefore, dismissed. Discovery shall continue on Plaintiff's design defect, implied warranty, and failure to warn claims. Moreover, Defendants' 25 request for oral argument is denied as unnecessary. Ordered by Judge Pamela K. Chen on 1/5/2017. (Merin, Eric)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CHRISSY COWAN,
Plaintiff,
- against COSTCO WHOLESALE CORPORATION,
CONAGRA GROCERY PRODUCTS, LLC,
CONAGRA FOODS, INC., CONAGRA
FOODS SALES, LLC, CONAGRA FOODS
PACKAGED FOODS, LLC, and CONAGRA
FOODS ENTERPRISE SERVICES, INC.,

MEMORANDUM & ORDER
15-CV-05552 (PKC)

Defendants.
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PAMELA K. CHEN, United States District Judge:
Plaintiff Chrissy Cowan brings this action seeking damages arising out of an accident on
January 5, 2015, during which a canister of “PAM” cooking spray (the “Product”), manufactured
and sold by Defendants, allegedly exploded and injured Plaintiff. 1 Specifically, Plaintiff asserts
that on May 17, 2014, she purchased two 12-ounce canisters of the Product at Costco Wholesale
Corporation. (Dkt. 14 (“Am. Compl.”) ¶ 19.) On January 5, 2015 at approximately 8:00 p.m.,
Plaintiff was cooking with the Product, which was sitting three feet away from the stove, when it
“suddenly and without warning, exploded, burning plaintiff’s face, hair, and hands, causing
serious, significant and permanent personal injuries.” (Id. ¶¶ 21-23.)

1

The facts in this section are drawn from the allegations contained in the Amended
Complaint and materials that the Court has judicially noticed. These facts are deemed to be true
for the purposes of this motion. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (a district
court must accept the factual allegations set forth in the complaint as true, and draw all reasonable
inferences in favor of the plaintiff).

To recover for her injuries, Plaintiff brought claims in Richmond County Supreme Court
for design defect (First Cause of Action), manufacturing defect (Second Cause of Action), failure
to warn (Third Cause of Action), and breach of warranty (Fourth Cause of Action). On September
24, 2015, Defendants removed the action to this Court. Now, Defendants Conagra Grocery
Products, LLC, Conagra Foods, Inc., Conagra Foods Sales, LLC, Conagra Foods Packaged Foods,
LLC, and Conagra Foods Enterprise Services, Inc. (collectively, “Defendants”) move to dismiss
all causes of action, except Plaintiff’s failure to warn claim. 2 For the reasons discussed below,
Defendants’ motion is granted with respect to Plaintiff’s manufacturing defect and express
warranty claims and otherwise denied.
LEGAL STANDARD
To withstand a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead facts
sufficient “to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). In evaluating a 12(b)(6) motion, a district court must accept the factual
allegations set forth in the complaint as true, and draw all reasonable inferences in favor of the
plaintiff. See Nielsen, 746 F.3d at 62; Cleveland v. Caplaw Enter., 448 F.3d 518, 521 (2d Cir.
2006). A complaint that “tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement’”
will not suffice. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 555 U.S. at 557).
Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative
level[.]” Twombly, 550 U.S. at 555. A complaint should be dismissed where a plaintiff has not
“nudged [its] claims across the line from conceivable to plausible[.]” Id. at 570. In deciding a
motion to dismiss, the Court may consider the complaint, “any document attached to the complaint,

2

On April 4, 2016, Defendant Costco filed an Answer to Plaintiff’s Amended Complaint.
(See Dkt. 19.)
2

any statements or documents incorporated in the complaint by reference, any document on which
the complaint heavily relies, and anything of which judicial notice may be taken.” In re HSBC
BANK, USA, N.A., Debit Card Overdraft Fee Litig., 1 F. Supp. 3d 34, 43 (E.D.N.Y. 2014).
DISCUSSION
I.

STRICT LIABILITY CLAIMS
A.

Design Defect

“A design defect claim . . . is premised on a manufacturer’s failure to properly design a
product, which is then placed on the market despite posing inappropriate risks.” Reed v. Pfizer,
Inc., 839 F. Supp. 2d 571, 577 (E.D.N.Y. 2012). In order “[t]o state a claim for strict products
liability under a design defect theory, a plaintiff must allege that ‘(1) the product as designed posed
a substantial likelihood of harm; (2) it was feasible to design the product in a safer manner; and
(3) the defective design was a substantial factor in causing plaintiff’s injury.” Simon v. Smith &
Nephew, Inc., 990 F. Supp. 2d 395, 403 (S.D.N.Y. 2013) (quoting Colon v. BIC USA, Inc., 199 F.
Supp. 2d 53, 83 (S.D.N.Y. 2001)); Sullivan v. Aventis, Inc., 14-CV-2939, 2015 WL 4879112, at
*7 (S.D.N.Y. Aug. 13, 2015); Cavanagh v. Ford Motor Co., 13-CV-4584, 2014 WL 2048571, at
*2 (E.D.N.Y. May 19, 2014).
In her Amended Complaint, Plaintiff alleges that the Product’s design “was defective in
that the defendants utilized extremely flammable and combustible materials and hazardous
components[.]” (Am. Compl. ¶ 27.) To substantiate this claim, Plaintiff attaches a copy of the
Product’s Material Safety Data Sheet, which identifies the various components of the Product. (Id.
¶ 27; Exhibit 4.) Plaintiff also identifies six feasible alternative gases that, if used in the Product,
she alleges “would have produced a safer design[.]” (Id. ¶ 28.) She further avers that because of
the Product’s defective design, the Product exploded, causing Plaintiff’s injuries. (Id. ¶ 36.)
Defendants argue that these allegations are insufficient to survive a motion to dismiss for two
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reasons: (1) Plaintiff’s proposed alternative design of the Product contains hydrocarbons, just as
the Product currently does, and thus her alternative-design allegations are purely speculative and
fail to demonstrate a design defect in the Product; and (2) in any event, Plaintiff’s “[Amended]
Complaint merely states legal conclusions.” (Dkt. 23 (“Defs.’ Br.”) at 7.) Neither argument is
persuasive.
Defendants’ first argument, that Plaintiff’s proposed alternative design fails to demonstrate
a design defect because it includes hydrocarbons, fails for several reasons. First, at the motion to
dismiss stage, the Court cannot definitively determine whether the purported hydrocarbon
components, i.e., petroleum gas (liquefied), propane, 2-methyl, and butane are, in fact,
hydrocarbons. While Defendants ask the Court to take judicial notice of these facts based on a
Wikipedia page and New York State statute, it would be completely inappropriate for the Court to
do so. Regarding the Wikipedia reference, there is no way for the Court to ascertain the reliability
of the underlying sources of that reference at this stage of the proceeding. See Fed. R. Evid.
201(b)(2) (“The court may judicially notice a fact that is not subject to reasonable dispute because
it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably
be questioned.” (emphasis added).) As for the New York State statute, even if the Court took
judicial notice of the statute’s inclusion of the above-listed components as hydrocarbons, this is
wholly distinct from judicially noticing that these facts are scientifically true. In any event, even
assuming that these components are hydrocarbons, the Court cannot find at this stage that the
inclusion of these particular hydrocarbons in Plaintiff’s proposed alternative design renders it
speculative or non-feasible, i.e., that there are no other types of hydrocarbons that could serve as
a feasible alternative design. Thus, Plaintiff’s Amended Complaint sufficiently alleges a design
defect, which must be proved or disproved through discovery and the fact-finding process. Ohuche

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v. Merck & Co., 11 CIV. 2385, 2011 WL 2682133, at *2 (S.D.N.Y. July 7, 2011) (denying motion
to dismiss where expert testimony was likely needed to “establish” that there was a safer feasible
alternative and such evidence was not necessary at motion to dismiss stage).
The Court also rejects Defendant’s second argument that Plaintiff’s “[Amended]
Complaint merely states legal conclusions.” (Defs.’ Br. at 7.) The Court finds that Plaintiff has
sufficiently alleged facts to support her design defect claim: the Product’s design poses harm
because it could lead to an explosion, certain alternative designs utilizing other types of gases are
available, and the alleged defect caused the Product to explode, which directly resulted in
Plaintiff’s injury. (See Am. Compl. at ¶¶ 26-28.) Such allegations are sufficient at the motion to
dismiss stage. See Sullivan, 2015 WL 4879112, at *7 (allegations adequate for design defect claim
where plaintiff asserted that mother took drug which caused birth defects in plaintiff and there
were “safer alternative designs” available because allegations were “sufficient to place Defendant
on notice on the nature of the Plaintiff’s claims”); Ohuche, 2011 WL 2682133, at *2.
Defendants’ reliance on three district court decisions to argue that Plaintiff’s allegations
are conclusory is misplaced. (See Defs.’ Br. at 7 (citing Cavanagh, 2014 WL 2048571, at *3;
Reed, 839 F. Supp. 2d at 577-78; Am. Guar. & Liab. Ins. Co. v. Cirrus Design Corp., 09-CV8357,
2010 WL 5480775, at *3 (S.D.N.Y. Dec. 30, 2010)). Indeed, the sufficiency of Plaintiff’s
allegations becomes clear when comparing Plaintiff’s allegations to those in the three cases cited
by Defendants. In all of those cases, the plaintiff’s allegations lacked basic facts, all of which are
present here. See, e.g., Cavanagh, 2014 WL 2048571, at *1 (“The Complaint does not identify
how the [product] was defectively designed, nor does the Complaint make any mention of a
feasible alternative design.”); Reed, 839 F. Supp. 2d at 577 (“[E]schewing the opportunity to plead
facts identifying [the product’s] design defect, the [plaintiffs] merely plead the legal conclusion

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that [the product] was defective.”); id. at 578 (“Plaintiffs’ design defect claim also fails for an
additional reason. Plaintiffs do not plead facts alleging the existence of a feasible alternative
design that would make the product safer[.]”); Am. Guarantee, 2010 WL 5480775, at *3 (“In their
Amended Complaint, Plaintiffs do not specify a particular design defect, nor do they make any
mention of a feasible alternative design.”).
In fact, Cavanagh, the case heavily relied on by Defendants, affirmatively supports
Plaintiff’s position. In addition to addressing the defendant’s motion to dismiss, the district court
in Cavanagh analyzed the plaintiffs’ motion to amend the complaint, specifically finding that the
plaintiffs had “corrected the pleading deficiencies” in their complaint by “(1) identifying the
defective component of [the product] (i.e., the stairs leading to the passenger cab); (2) identifying
several other alternative designs; and (3) alleging that [the plaintiff] was injured while exiting [the
passenger cab] due to the allegedly defective stairs.” Cavanagh, 2014 WL 2048571, at *6. 3
Plaintiff has made similar allegations here, which are sufficient at this stage to allow her design
defect claim to go forward. Accordingly, Defendants’ motion to dismiss is denied with respect to
Plaintiff’s design defect claim.
B.

Manufacturing Defect

“To state a claim for manufacturing defect . . . the plaintiff must allege that (1) the product
was defective due to an error in the manufacturing process and (2) the defect was the proximate
cause of plaintiff's injury.” Williamson v. Stryker Corp., 12 CIV. 7083, 2013 WL 3833081, at *4
(S.D.N.Y. July 23, 2013) (citing Colon, 199 F. Supp. 2d at 85). “Explained another way, a
manufacturing defect exists when the unit in question deviates in quality and other performance

3

Defendants did not address this section of the Cavanagh decision in their briefing.
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standards from all of the other identical units.” Cavanagh, 2014 WL 2048571, at *3 (internal
quotation marks and citation omitted).
Here, Plaintiff fails to plead a manufacturing defect claim adequately because her Amended
Complaint is devoid of any allegation that the Product had a manufacturing defect when compared
to other “PAM” cooking sprays in the market. See Sullivan, 2015 WL 4879112, at *8 (“Nowhere
does Plaintiff allege that the dose(s) [of the allegedly defective drug) administered to Plaintiff’s
mother deviated from other doses in any way.”); Cavanagh, 2014 WL 2048571, at *3 (complaint
failed to “allege that the [product] was defective as compared to other [identical products]
manufactured by Defendants”); Goldin v. Smith and Nephew, Inc., 12 CIV. 9217, 2013 WL
1759575, at *3 (S.D.N.Y. Apr. 24, 2013) (“[T]here is no reason at all to believe that the particular
[product] used in [the plaintiff’s] surgery was defective as compared to other products
manufactured pursuant to the same design.”); Reed, 839 F. Supp. 2d at 577 (“manufacturing defect
claim [did] not survive pleading” where plaintiff failed to allege “how or why the [drug] ingested
by [the plaintiff] differed from its design”). Rather, Plaintiff’s allegations relate to canisters of
“PAM” cooking spray generally, and fail to differentiate between the particular canister of “PAM”
she purchased and other canisters of the Product. (See, e.g., Am. Compl. ¶ 44 (“The defendants
failed to adequately perform a risk analysis during the manufacturing process regarding the
foreseeable use and/or misuse of its/their “PAM” cooking spray product.”). In other words,
although Plaintiff alleges that Defendants failed to conduct adequate heat, pressure, and/or wall
thickness testing, she fails to assert that Defendants specifically did not test the product she used
compared to others sold to the general public. 4

4

Plaintiff tacitly acknowledges the weakness of her manufacturing defect claim, by
asserting in her opposition that the alleged errors in testing “contributed to the production of
defendants’ defective product.” (Dkt. 22 (“Pl.’s Aff.”) ¶ 24.) This is exactly the point. Nothing
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On this issue, the district court’s decision in Miccio v. Conagra Foods, Inc. is directly on
point. There, the court found that the plaintiff had adequately pled a manufacturing defect claim,
by alleging, inter alia, that the defendant “carelessly allowed the specific can of cooking spray that
injured [the plaintiff] to be manufactured and distributed into the stream of commerce when it (as
opposed to other [Keck’s Premium Food Release] spray cans properly manufactured and
distributed) was capable of exploding by simply sitting on a room temperature shelf.” Miccio v.
Conagra Foods, Inc., 6:16-CV-006140, 2016 WL 7410785, at *3 (W.D.N.Y. Dec. 20, 2016)
(internal quotation marks and citation omitted). No such allegations exist here. Thus, Plaintiff
fails to sufficiently plead a manufacturing defect claim, and that claim must be dismissed. 5
II.

NEGLIGENCE CLAIMS
Defendants also move to dismiss any negligence claims Plaintiff may be asserting.

Plaintiff’s Amended Complaint does not indicate whether her design and manufacturing defect
claims are being brought pursuant to a strict liability or negligence theory. And in her opposition
brief, despite Defendants moving for dismissal of her negligence claims, Plaintiff frames the
entirety of her case in the context of strict products liability, except for a handful of sporadic
references to general “negligence.” (See, e.g., Dkt. 22 at ECF 10, 11.) In any event, “[u]der New

Plaintiff alleges with respect to the manufacturing process is unique to the Product; rather, this
allegation applies generally to all canisters of “PAM.”
5

Because the Court finds Plaintiff’s manufacturing claim deficient based on her failure to
allege how the Product was manufactured differently than other canisters of “PAM,” it need not
address Defendants’ other arguments regarding Plaintiff’s manufacturing defect claim. The Court
notes, however, that it is not persuaded by Defendants’ argument that Plaintiff’s complaint is
deficient as to this claim because it fails to “supply any facts regarding the manufacturing process.”
(Defs.’ Br. at 8.) In fact, within this Circuit, courts have expressly held the opposite. See, e.g.,
Williamson, 2013 WL 3833081, at *1 (refusing to “require Plaintiffs to allege specific facts about
the manufacturing process” because “requi[ring] plaintiff to possess technical or scientific
knowledge about the inner workings of the product . . . would contravene the notice pleading
requirement of Federal Rule of Civil Procedure 8, even under the Iqbal-Twombly standard”).
8

York law, the elements of negligence claims based on design defect [and] manufacturing
defect . . . theories are the same as those under strict liability.” Miccio, 2016 WL 7410785, at *6
(internal citations omitted); see also Cavanagh, 2014 WL 2048571, at *5; Am. Guarantee, 2010
WL 5480775, at *3 (“[C]ourts have noted that, for the purposes of analyzing a design defect claim,
the theories of strict liability and negligence are virtually identical.”); Castaldi v. Land Rover N.
Am., Inc., 06-CV-1008, 2007 WL 4165283, at *11 (E.D.N.Y. Nov. 21, 2007) (“The standard of
fault in manufacturing defect cases is simply strict liability, regardless of whether the claim is
characterized as negligence or strict liability.”). Therefore, to the extent Plaintiff is alleging a
design or manufacturing defect claim grounded in a negligence theory, the claims survive and fail,
respectively, for the same reasons as discussed above with respect to Plaintiff’s strict liability
claims. Gunn v. Hytrol Conveyor Co., 10-CV-00043, 2013 WL 2249241, at *8 n.16 (E.D.N.Y.
May 22, 2013) (granting summary judgment as to manufacturing defect claim under strict liability
and negligence theories “[b]ecause manufacturing defect claims are analyzed identically” under
both theories); id. at *10 n.17 (granting summary judgment as to design defect claim under strict
liability and negligence theories because “[u]nder New York law, design defect claims are virtually
identical” under both theories”).
III.

BREACH OF WARRANTY CLAIMS
A.

Express Warranty 6

For a breach of express warranty claim to survive a motion to dismiss, Plaintiff must allege
that “there was an affirmation of fact or promise by the seller, the natural tendency of which was

6

Plaintiff does not attempt to oppose Defendants’ motion to dismiss Plaintiff’s express
warranty claim. (Dkt. 24 (“Defs.’ Reply”) at 1.) Plaintiff does, however, cite the legal standard
for an express warranty claim in her opposition brief and thus, out of an abundance of caution, the
Court analyzes that claim herein.
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to induce the buyer to purchase and that the warranty was relied upon to [P]laintiff’s detriment.”
DiBartolo v. Abbott Labs., 914 F. Supp. 2d 601, 625 (S.D.N.Y. 2012) (internal quotation marks
and citations omitted); see Reed, 839 F. Supp. 2d at 578 (“A successful claim of a breach of express
warranty requires proof that an express warranty existed, was breached, and that plaintiff had relied
on that warranty.”). “A breach of express warranty claim require[s] a plaintiff to plead some
affirmative statement of fact that forms the basis of the warranty. The statement must be definite
enough so that its ‘natural tendency [is] ... to induce the buyer to purchase.” Becker v. Cephalon,
Inc., 14 CIV. 3864, 2015 WL 5472311, at *7 (S.D.N.Y. Sept. 15, 2015) (internal quotation marks
and citations omitted) (alteration in original).
Here, Plaintiff fails to allege an express warranty claim adequately in order to survive a
motion to dismiss. Nowhere in her Amended Complaint does Plaintiff assert an “affirmative
statement of fact” made by Defendants that she relied upon in purchasing the Product. Id. at *7.
Instead, Plaintiff relies on the general allegation that Defendants “expressly . . . warranted to the
general public and to [Plaintiff] that their ‘PAM’ cooking spray was safe for the use intended.”
(Am. Compl. ¶ 59.) 7 Such an allegation, which does not describe how the “safe” representation
was made or how Plaintiff’s purchase of the Product was based on seeing that representation, falls
woefully short of the pleading requirements for an express warranty claim. See Horowitz v. Stryker
Corp., 613 F. Supp. 2d 271, 286 (E.D.N.Y. 2009) (“Plaintiff does not even describe how [the
representation the product was ‘safe’] was made. Without sufficient allegations identifying the
conduct at issue, plaintiff has failed to give defendants notice of the grounds of her claim.”) (citing

7

At the pre-motion conference, Plaintiff suggested that in purchasing the Product, she
relied upon affirmative representations made in television advertisements. The Court declines to
consider this statement because Plaintiff did not allege this in her Amended Complaint nor raise
the issue in her opposition brief.
10

New York law); Goldin, 2013 WL 1759575, at *6 (“Plaintiff has not alleged with sufficient
specificity the requisite representation by [defendants.]”). Accordingly, Plaintiff’s breach of
express warranty claim must be dismissed.
B.

Implied Warranty

For a breach of implied warranty claim to survive a motion to dismiss under New York
law, Plaintiff must allege the following: “(1) that the product was defectively designed or
manufactured; (2) that the defect existed when the manufacturer delivered it to the purchaser or
user; and (3) that the defect is the proximate cause of the accident.” Simon, 990 F. Supp. 2d at 407
(internal quotation marks and citation omitted); Cavanagh, 2014 WL 2048571, at *5. “Liability
under strict products liability and implied warranty theory are essentially the same.” Id. at *5
(internal quotation marks and citation omitted); Goldin, 2013 WL 1759575, at *5.

Not

surprisingly, in moving to dismiss Plaintiff’s implied warranty claim, Defendants make the same
arguments they made in moving to dismiss the design defect claim. Because the Court finds that
Plaintiff has sufficiently alleged a design defect claim, Plaintiff’s implied warranty claim also
survives. See Sullivan, 2015 WL 4879112, at *8 (“Defendant's argument as to Plaintiff's claim for
breach of implied warranty is largely premised on dismissal of her claims for design defect and
manufacturing defect. As the Court has found that Plaintiff's design defect claim survives, these
arguments are moot.”).
CONCLUSION
For the reasons discussed above, Defendants’ motion to dismiss is granted as to Plaintiff’s
manufacturing defect and express warranty claims and otherwise denied.

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Plaintiff’s

manufacturing defect and express warranty claims are, therefore, dismissed. Discovery shall
continue on Plaintiff’s design defect, implied warranty, and failure to warn claims. 8

SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: January 5, 2017
Brooklyn, New York

8

The Court denies Defendants’ request for oral argument as unnecessary. (Dkt. 25.)
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