Case Notes

In Morgan v. Abco Dealers Inc., 01 Civ. 9564, S.D.N.Y., Dec. 11, 2007, Plaintiff, a hospital's nurse since 1990, was diagnosed with Type I, Type IV, and Class V allergic sensitivity to latex. After she claimed disability in 1999, a doctor conducting a June 14, 1999, independent medical examination opined that the plaintiff could only return to work in a 'latex-free' environment. Defendant Abco Dealers Inc., a buying cooperative of medical device distributors, sought dismissal of plaintiff's Oct. 30, 2001 product liability action alleging, among others, negligence and failure to warn. The court partly denied Abco's motion for summary judgment on claims that plaintiff's action was untimely and federally preempted, and that it did not make express warranties to plaintiff. In deeming her negligence, strict liability, and failure to warn claims time-barred, the court ruled that Abco proved that plaintiff first learned of her injury when diagnosed with an allergy to powdered gloves on Sept. 29, 1995. Also the Medical Device Amendments of 1976 preempted her breach of warranty claims as to gloves sold by Abco beginning on Sept. 30, 1998.