De La Cruz v. Ecolab Inc.

Background

Robert De La Cruz brought a product-liability action against Ecolab Inc. He alleged that exposure to Ecolab’s Apex Presoak product caused a chemical burn that later required amputation of his right leg below the knee and his left fifth toe. His claims were based on Ecolab’s alleged failure to warn that Apex Presoak could cause chemical burns.

De La Cruz was working as a temporary dishwasher at the Waldorf Astoria Hotel. After being told to wash dishes, he used a blue liquid from a wall-mounted pump to hand-wash plastic trays. He did not know that the liquid was Apex Presoak, which was intended for soaking silverware before machine washing. The product was supposed to be diluted by adding one pump to two gallons of water. The record stated that the dispenser was labeled “Apex Presoak,” and that an operational chart with written instructions and pictures was posted above it. De La Cruz said he did not recall whether he saw posters or instructions in the kitchen.

After his shift, De La Cruz noticed that his pants and socks were soaked with the liquid and water. When he removed his shoes and socks, he saw blisters on his feet. Medical records described burns to both feet. He later underwent a skin-graft operation and additional surgeries, including amputations. The records also noted that he had severe uncontrolled diabetes, diabetes-related peripheral artery disease, and chronic kidney disease.

Motion and legal standard

Ecolab moved for summary judgment, a ruling that ends a claim without a trial when the evidence shows no genuine dispute over a fact important to the outcome and the moving party is entitled to judgment under the law. Ecolab argued, among other things, that De La Cruz could not show Ecolab knew or should have known that Apex Presoak could cause chemical burns. Ecolab also moved to exclude testimony from De La Cruz’s experts.

Under New York law, a failure-to-warn claim requires proof that the manufacturer had a duty to warn, breached that duty by failing to provide an adequate warning about a product danger, that the failure was a direct cause of the injury, and that the plaintiff suffered loss or damage. A manufacturer’s duty includes warning about hidden dangers from foreseeable uses that the manufacturer knew or should have known about.

Court’s analysis

The court held that De La Cruz had not produced evidence that Ecolab knew or should have known Apex Presoak could cause chemical burns. The court identified possible forms of such evidence, including relevant medical studies, reports of similar incidents, filed cases, public news reports, and product-testing results. But De La Cruz’s opposition to summary judgment did not address this issue, and the undisputed evidence showed that, other than De La Cruz’s injury, Ecolab had received no report associating Apex Presoak with a skin burn.

The court considered the testimony of De La Cruz’s expert toxicologist, Dr. Michael J. McCabe, Jr. Dr. McCabe opined that Apex Presoak caused De La Cruz’s burns, but stated that his opinion applied to “Mr. De La Cruz and Mr. De La Cruz only.” He also acknowledged that factors specific to De La Cruz’s body made him susceptible to chemical burns. The court concluded that this opinion, developed with the benefit of hindsight, did not show what Ecolab knew or should have known when De La Cruz used the product.

The court also noted that Dr. McCabe’s report cited three sources concerning possible skin irritation or burning from certain ingredients, but De La Cruz did not include those references in his opposition or argue that they should have put Ecolab on notice of a risk of skin burns.

Disposition

The court granted Ecolab’s motion for summary judgment. It directed the Clerk of Court to terminate the pending motion, enter judgment for Ecolab, and close the case. Because summary judgment resolved the case, the court did not reach Ecolab’s separate motion to exclude De La Cruz’s expert testimony.