Levin v. Johnson and Johnson et al

Filing 153

MEMORANDUM & ORDER ADOPTING REPORT AND RECOMMENDATION; The parties' objections are OVERRULED and Judge Shields' R&R is ADOPTED in part and MODIFIED in part. Accordingly, the motions to dismiss are GRANTED in part and DENIED in part. The parties shall continue with discovery in accordance with Judge Shields' orders. So Ordered by Judge Joanna Seybert on 8/23/2019. C/ECF (Valle, Christine)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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ISAAC LEVIN,
Plaintiff,
MEMORANDUM & ORDER
16-CV-6631(JS)(AYS)

-againstJOHNSON AND JOHNSON, a national forprofit corporate entity, JOHNSON AND
JOHNSON CONSUMER COMPANIES, INC.,
a national for-profit entity, THE DOW
CHEMICAL COMPANY n/k/a DowDuPont, and
KIK CUSTOM PRODUCTS, INC.,

Defendants.
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APPEARANCES
For Plaintiff:
Isaac Levin, pro se
960 Cliffside Avenue
North Woodmere, New York 11581
For the Johnson
and Johnson
Defendants:

John D. Winter, Esq.
Louis M. Russo, Esq.
Michelle M. Bufano, Esq.
Patterson, Belknap, Webb & Tyler LLP
1133 Avenue of the Americas
New York, New York 10036

For Defendant Dow
Chemical:

Richard Weingarten, Esq.
Heather H. Kidera, Esq.
Joel Alan Blanchet, Esq.
Joseph B. Schmit
Phillips Lytle LLP
The New York Times Building
620 Eighth Avenue, 23rd Floor
New York, New York 10018

For Defendant KIK
Custom Products:

Francis Peter Manchisi, Esq.
Suma Thomas, Esq.
Thomas M. DeMicco, Esq.
Wilson, Elser, Moskowitz, Edelman & Dicker LLP
3 Gannett Drive
West Harrison, New York 10604

SEYBERT, District Judge:
Plaintiff Isaac Levin, proceeding pro se, commenced this
action against the Johnson and Johnson defendants (“Johnson”) on
November 30, 2016.

(Compl., D.E. 1.)

He amended his Complaint to

add Dow Chemical Company (“Dow”) and KIK Custom Products, Inc.
(“KIK”) as defendants on July 2, 2018.

(Am. Compl., D.E. 69.)

He

alleges that use of Johnson’s baby shampoo caused a tumor on his
head.

While discovery was ongoing, Dow and KIK each moved to

dismiss the Amended Complaint.
D.E. 97.)

(Dow Mot., D.E. 98; KIK Mot.,

Johnson did not move to dismiss the Amended Complaint.

Plaintiff opposed both motions.
KIK, D.E. 107.)

(Opp. to Dow, D.E. 106; Opp. to

Judge Bianco referred the motions to Magistrate

Judge Anne Y. Shields.1
The facts of this case are set forth in Judge Shields’
Report and Recommendation (R&R, D.E. 143) and will be discussed
here only for the purpose of evaluating the parties’ specific
arguments and objections.

Familiarity with the underlying record

is presumed.
I.

BACKGROUND
On

June

17,

2019,

Judge

Shields

issued

her

R&R

recommending that the Court grant the motions in part and deny
them in part, specifically by GRANTING the motions to dismiss with

1

On May 31, 2019 the case was reassigned to the undersigned.
2

respect to Plaintiff’s claims of strict liability/failure to warn
(Count 1); negligence (Count Two); breach of implied warranties
(Count 4); concert of action (Count Five); punitive damages (Count
Six); and negligent misrepresentation (Count Seven) and by DENYING
the motions to dismiss with respect to Plaintiff’s breach of
express warranty claim (Count Three) and allowing that claim to
proceed to discovery.

The R&R further recommends that Plaintiff

be granted leave to amend only with respect to his claim for breach
of implied warranty (Count Four) and that no other amendments be
allowed.

(See R&R.)
Plaintiff

objections

(D.E.

requested

147)

and

an

this

extension
Court

of

time

granted

the

to

file

request.

Plaintiff and KIK timely filed objections in accordance with the
Court’s July 15, 2019 deadline (Pl. Obj, D.E. 150; KIK Obj., D.E.
149).

Dow did not file objections.

No party responded to

Plaintiff or KIK’s objections.
This

Court

“may

accept,

reject,

or

modify

the

recommended disposition” and “must determine de novo any part of
the magistrate judge’s disposition that has been properly objected
to.”

FED. R. CIV. P. 72.

“When a party makes no objections, or

where it makes only conclusory or general objections, courts will
review the magistrate’s findings for clear error.” Pagan v. Brown,
No. 07-CV-0453, 2011 WL 3235769, at *1 (E.D.N.Y. July 28, 2011),
aff’d, 485 F. App’x 454 (2d Cir. 2012).
3

II.

THE PARTIES’ OBJECTIONS
A.

KIK’s Objections
Defendant KIK objects to the recommendation that its

motion to dismiss be denied as to Count Three (breach of express
warranty) and the R&R’s conclusion that the claim is timely.

KIK

“disagrees with Judge Shields’ finding that plaintiff complied
with the [four-year] statute of limitations by moving to amend his
complaint on November 13, 2017, which was before the expiration of
the four year period” at the end of December 2017.
2.)

(KIK Obj. at

KIK appears to believe that Plaintiff had not commenced the

amendment process until the Court ruled on his motion to amend.
KIK offers no legal basis for its argument.

The Court notes that

after Plaintiff was granted leave to amend the Complaint on June
28, 2018, he did so four days later, on July 2, 2018.
68, 71, 69.)
Plaintiff

(See D.E.

Thus, the Court agrees with Judge Shields’ that

“began

the

amendment

process

within

the

four-year

statute of limitations period and therefore his claims are deemed
timely.”

(R&R at 12.)
KIK alternatively argues that the operative date for

statute of limitations purposes is the “tender of delivery” of the
product and that Plaintiff’s Complaint does not plead a date when
KIK, a bulk supplier, tendered delivery of the product to Johnson.
(KIK Obj. at 2-3.) In its motion to dismiss, however, KIK conceded
that warranty claims against it should have been brought in 2017,
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no more than four years after Plaintiff’s last purchase of the
shampoo in December 2013.

(KIK Br., D.E. 97-1, at 7-8 (“Even if

Plaintiff purchased his last bottle of baby shampoo in December
2013, the breach of warranty claims . . . should have been
commenced no more than four years later, in 2017.”).)

KIK made no

argument that Plaintiff had not alleged a specific date for KIK’s
tender of delivery.

“[E]ven in a de novo review of a party’s

specific objections, the court will not consider ‘arguments, case
law and/or evidentiary material which could have been, but [were]
not, presented to the magistrate judge in the first instance.’”
Brown v. Smith, No. 09-CV-4522, 2012 WL 511581, at *1 (E.D.N.Y.
Feb. 15, 2012) (citing Kennedy v. Adamo, No. 02–CV–1776, 2006 WL
3704784, at *1 (E.D.N.Y. Sept. 1, 2006) (second alteration in
original); see also Wesley v. Alexander, No. 99-CV-2168, 2005 WL
1352593, at *6 (S.D.N.Y. June 8, 2005)(because magistrates play a
crucial role within the federal judicial framework by assuming
“some

of

the

burdens

imposed

[on

the

district

courts]

by

a

burgeoning caseload,” . . . “[t]he law is clear that when a
dispositive

motion

is

heard

before

a

magistrate

judge,

the

[litigants] must make all . . . arguments then and there, and
cannot

later

add

new

arguments

at

subsequent

stages

of

the

proceedings” without a compelling reason) (internal quotation
marks and citation omitted; alterations in original).

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Thus, KIK’s

objections are OVERRULED and its motion to dismiss is DENIED as to
Count Three (breach of express warranty).
B.

Plaintiff’s Objections
1.

Counts One (Strict Liability/Failure to Warn),
Two (Negligence) and Seven (Negligent
Misrepresentation

Plaintiff

objects

to

the

R&R’s

recommendation

that

Counts One (strict liability/failure to warn), Two (negligence),
and Seven (negligent misrepresentation) be dismissed as timebarred.

The

R&R

applied

New

York’s

three-year

limitations for personal injury tort claims.
finds

that

“Plaintiff’s

[First,

Second,

statute

(R&R at 8.)
and

of

The R&R

Seventh]

claims

accrued, i.e., the statute began to run, at the latest, in January
2014, when his tumor was diagnosed and at which point, based on
his allegations, he had already learned about the connection
between the product and his condition.”

(R&R at 10.)

It notes

that he timely commenced the action against Johnson in November
2016 but “did not move to add either Dow or KIK as defendants until
November 2017[,]” well after the period expired in January 2017.
(R&R at 10.)
Plaintiff does not contest that the applicable statute
of limitations for these claims is three years.

Rather, he makes

a tolling argument, claiming that when he commenced the action
against Johnson in November 2016, he “lacked any knowledge that
Johnson

did

not

manufacture

a
6

drop

of

the

product

itself.

Therefore, Plaintiff had no reason to include either Dow o[r] KIK
when he first brought suit. . . .

This discovery wasn’t made until

June 2017, which led Plaintiff to immediately seek leave of court
to amend and include Dow and KIK as [ ] defendants.”
6.)

(Pl. Obj. at

He cites Judge Bianco’s ruling granting his motion to amend

the complaint to add Dow and KIK (Order, D.E. 71), where Judge
Bianco stated that Plaintiff did not have sufficient information
to add them as defendants until shortly after a June 1, 2017
discovery deadline.

(Tr., D.E. 73, 10-12:12.)

This Court notes that Judge Bianco’s order specifically
stated that Defendants had not addressed whether the proposed
amendment to add parties would be futile and did not “conclude .
. . right now that adding KIK and Dow would be futile under a
motion to dismiss standard.”

(Tr. 15:14-17.)

An amendment will

be denied as futile “if the proposed claim could not withstand a
motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6).”

Romero v.

Bestcare, Inc., No. CV 15-7397, 2018 WL 1702001, at *3 (E.D.N.Y.
Feb. 28, 2018), R&R adopted, 2018 WL 1701948 (E.D.N.Y. Mar. 31,
2018) (internal quotation marks and citation omitted).

“Arguments

as to whether the proposed claim is timely under the relevant
statute of limitations are evaluated under the futility test.”
Id. at *7 n.13. The parties did not address futility or applicable
statutes of limitations in connection with Plaintiff’s motion to
amend to add KIK and Dow, and there has been no ruling on the issue
7

in this case.

(Tr. 15:3-16:1; see A.H. Lundberg Assocs., Inc. v.

TSI, Inc., No. C14-1160, 2016 WL 9226998, at *11 (W.D. Wash. Feb.
18, 2016) (the parties should not “infer a strong inclination from
the court regarding the merits of [a] subsequent motion to dismiss
based simply on the court’s deference-bound decision on [a] motion
to amend, particularly when the court has already indicated its
desire for further briefing on the merits.”).)
Notwithstanding the decision on the motion to amend,
this

Court

finds

applicable
applies.

statute

that

Plaintiff’s

claims

of

limitations

and

no

are

barred

tolling

by

the

exception

Under New York law, which governs this action, see

Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990),
the

statute

of

limitations

begins

to

run

“from

the

date

of

discovery of the injury or from the date when such injury should
have been discovered.

Discovery occurs when the injured party

discovers the primary condition on which the claim is based.”
Trisvan v. Heyman, 305 F. Supp. 3d 381, 396 (E.D.N.Y. 2018)
(quoting Bethpage Water Dist. v. Northrop Grumman Corp., 884 F.3d
118, 125 (2d Cir. 2018) (citing N.Y. C.P.L.R. § 214–c)).

“A delay

before the connection between the symptoms and the injured’s
exposure to a toxic substance is recognized does not delay the
start of the limitations period [and] [t]he three-year statute of
limitations of CPLR 214–c(2) runs from the time a plaintiff
discovers an injury, that is, from the time [ ]he realizes that [
8

]he has the physical manifestations of illness, regardless of when
[ ]he learns of the cause.”

Id. (internal quotation marks and

citations omitted).
Plaintiff
should apply here.

argues

that

New

York’s

tolling

provision

That provision provides:

where the discovery of the cause of the injury
is alleged to have occurred less than five
years after discovery of the injury . . . an
action may be commenced or a claim filed
within one year of such discovery of the cause
of the injury . . . [In such case,] plaintiff
or claimant shall be required to allege and
prove that technical, scientific or medical
knowledge and information sufficient to
ascertain the cause of his injury had not been
discovered, identified or determined prior to
the expiration of the period within which the
action or claim would have been authorized.
N.Y. C.P.L.R. 214-c.
apply.

The Court finds this provision does not

Section 214-c “enact[ed] a discovery rule for tort cases

based on exposure to toxic substances that cause imperceptible
injuries at the time of exposure.”
C.P.L.R. § 214-c.

That rationale for tolling the statute of

limitations does not apply here.
injuries in January 2014.
cause.

Practice Commentary, N.Y.

Plaintiff was aware of his

He was also aware of their alleged

Section 214-c will not toll the time to add additional

defendants where the injury and cause are known.

Judge Barbara S.

Jones of the Southern District of New York considered and rejected
Plaintiff’s exact argument.

Like Judge Jones, the Court finds

that
9

[t]he discovery rule does not apply in this
case. [Plaintiff] knew the [alleged] cause of
his injury . . . when he was diagnosed . . .
in [January of 2014]. [ ] Thus, Plaintiff
cannot allege in the Complaint, let alone
prove, that the cause of the injury remained
unknown because the ‘technical, scientific or
medical
knowledge’
had
not
yet
been
discovered. Essentially, Plaintiff relies on
the argument that the discovery rule should
apply in cases where the plaintiff does not
know who caused the injury versus what caused
the injury. [ ] [T]he language of the statute
referring to ‘technical, scientific or medical
knowledge’ does not support this reading.
Since Plaintiff knew the cause of his injury
in [January of 2014], the discovery rule does
not apply in this case and cannot toll the
statute of limitations.
Fisher v. APP Pharm., LLC, 783 F. Supp. 2d 424, 431 (S.D.N.Y. 2011)
(emphasis

in

original).

Thus,

Plaintiff’s

objections

are

OVERRULED and Counts One, Two, and Seven are DISMISSED.
2.

Count Four (Breach of Implied Warranty)

Plaintiff next objects to the R&R’s finding that he did
not adequately allege the elements of breach of implied warranty
(Count Four).

As the R&R recommends that Plaintiff be granted

leave to amend Count Four, the Court OVERRULES this objection as
moot.

Count Four is DISMISSED without prejudice and with leave to

amend.
3.

Count Five (Concert of Action)

Plaintiff also objects to the R&R’s finding that he did
not adequately allege concert of action (Count Five).
at 12-15.)

(Pl. Obj.

According to the R&R, Plaintiff has not alleged “what
10

common plan the Defendants devised, how each of the [D]efendants
committed a tort and which Defendants’ tortious conduct was in
support of this alleged common plan.”

(R&R at 22.)

Plaintiff

argues that “at a minimum, [he] has sufficiently alleged that the
Johnson Defendants worked in concert with Dow and KIK in the
manufacture, distribution, marketing and promoting the product to
the public at large as ‘safe.’”

(Pl. Obj. at 13.)

However, as

the R&R notes, “[p]arallel activity among companies developing and
marketing the same product, without more . . . is insufficient to
establish the agreement element necessary to maintain a concerted
action claim.”

Rastelli v. Goodyear Tire & Rubber Co., 79 N.Y.2d

289, 295, 591 N.E.2d 222, 224, 582 N.Y.S.2d 373 (1992) (internal
quotation marks and citation omitted).

In conducting a de novo

review, the Court finds that the Amended Complaint does not
plausibly allege concert of action.

Plaintiff’s objection is

OVERRULED and Count Five is DISMISSED.
4.

Repleading

Plaintiff objects to the R&R’s finding that repleading
Counts One, Two, Five, Six, and Seven would be futile because the
problems with them are substantive and improved pleading will not
cure the deficiencies, and to the recommendation that he only be
granted leave to amend Count Three.
As discussed, Counts One, Two, and Seven, the Court holds
that they are time-barred, a substantive issue that repleading
11

will not cure.

Thus, Plaintiff’s objection is OVERRULED and

Plaintiff is not given leave to replead Counts One, Two, and Seven.
As
concert

of

discussed,
action,

Plaintiff

and

the

has

Court

not

adequately

agrees

recommendation that Count Five be dismissed.

with

alleged

the

R&R’s

However, the Court

MODIFIES the R&R to the extent that it grants Plaintiff leave to
replead Count Five.

The Court finds that the Amended Complaint

does not contain sufficient factual allegations to support his
claim

that

“Defendants

knew

that

the

product

should

contain

warnings on the risk of cancer and allergic skin reactions posed
by consumers using the product, but purposefully sought to suppress
such information and omit warnings to its consumers so as not to
negatively

affect

Defendants.”

sales

and

maintain

(Am. Compl. ¶ 75.)

the

profits

of

the

However, based on Plaintiff’s

representations regarding emails exchanged between Defendants,
there is a possibility that he could include sufficient facts if
given the opportunity to replead.
The Court notes that Plaintiff does not object to the
recommendation that Count Six (punitive damages) be dismissed.
Without objection, in reviewing the recommendation that Count Six
be dismissed for clear error, the Court finds none, and thus, Count
Six is DISMISSED.

Because Plaintiff does not object to the

dismissal of Count Six, the Court does not construe his objections

12

as

to

repleading

to

include

an

objection

to

the

R&R’s

recommendation that he not be allowed to replead Count Six.
CONCLUSION
Thus, the parties’ objections are OVERRULED and Judge
Shields’ R&R is ADOPTED in part and MODIFIED in part. Accordingly,
the motions to dismiss are GRANTED in part and DENIED in part.
The motions are granted with respect to Counts One, Two, Four,
Five, Six, and Seven, and those counts are DISMISSED.
are DENIED with respect to Count Three.

The motions

Plaintiff is given leave

to replead Count Four (breach of implied warranties) and Count
Five (concert of action) in accordance with Judge Shields’ R&R and
this Order.

If Plaintiff wishes to amend his Amended Complaint

as to Count Four and Count Five, he shall do so within 30 days of
this Order.

If he does not do so within 30 days, his claims for

breach of implied warranty (Count Four) and concert of action
(Count Five) will be DISMISSED.
Second

Amended

Complaint.

Complaint

(D.E. 69.)

will

Plaintiff is cautioned that any
completely

replace

the

Amended

Thus, if Plaintiff also wishes to proceed

with Count Three (breach of express warranty), which has not been
dismissed, he shall include it in the Second Amended Complaint.

13

The parties shall continue with discovery in accordance
with Judge Shields’ orders.

SO ORDERED.

/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
Dated: August
23 , 2019
Central Islip, New York

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