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The Rogak Report: 07 Feb 2013: Products Liability - Counterfeit Products

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  • Lawrence
    TOOTHPASTE MAKER NOT LIABLE FOR INJURY CAUSED BY COUNTERFEIT PRODUCT SOLD AT CLOSEOUT STORE Pellon v Colgate-Palmolive Co.
    Message 1 of 1 , Feb 7, 2013
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      TOOTHPASTE MAKER NOT LIABLE FOR INJURY CAUSED BY COUNTERFEIT PRODUCT SOLD AT CLOSEOUT STORE

      Pellon v Colgate-Palmolive Co. 
      2013 NY Slip Op 50161(U)
      Decided on February 4, 2013
      Supreme Court, Richmond County
      Maltese, J.


      The defendant, Colgate-Palmolive Company ("Colgate"), moves for summary judgment dismissing the plaintiff's complaint. The motion is granted. 

      This is a product liability action to recover for injuries that the plaintiff allegedly sustained as a result of ingesting tainted toothpaste. On or about May 16, 2007 the plaintiff purchased toothpaste from a store operated by the defendant, Dollar Worth, Inc. ("Dollar Worth"). The plaintiff testified that the toothpaste she purchased came in Colgate packaging, but she had thrown out the box. She did however keep the tube and the remaining contents.

      Testimony taken at the plaintiff's deposition shows that she became very ill after ingesting the toothpaste purchased at the Dollar Worth store. She was admitted to the hospital as a result of this illness, and alleges that she sustained the following injuries as a result of ingesting the tainted toothpaste: colitis involving the descending colon; diverticulosis; esophagitis; gastro intestinal injuries; and gastroenteritis.

      Brenden Dean, a manager at the Dollar Worth, stated that the store sold closeout goods. Mr. Dean acknowledged that the Colgate toothpaste that the store sold did not come directly from Colgate, but rather it came from a "middleman." Furthermore, Mr. Dean testified that the store did not employ any quality control procedures to confirm that the toothpaste was legitimate Colgate toothpaste.

      Walter Drabik, a technical associate in the oral care packaging group, testified for the defendant Colgate. During his testimony Mr. Drabik concluded that the toothpaste in question was counterfeit. To arrive at this conclusion Mr. Drabik pointed out that the thread profile on the nozzle of the tube did not match Colgate's standards. Additionally, the opening where the toothpaste comes out was of a different diameter, and that the Colgate double hinge cap was not on the product. Furthermore, the font used on the tube for the phrase "great regular flavor" was a different font from that used by Colgate; and that the font varied from letter to letter.

      In addition to examining the toothpaste tube, Mr. Drabik submitted the contents of the toothpaste tube to Colgate's laboratory. The testing laboratory demonstrated that the toothpaste contained .56% diethylene glycol ("DEG"), which is hazardous and should not be present in toothpaste.

      Colgate moved for summary judgment dismissing the plaintiff's complaint against it because it did not manufacture the toothpaste in at issue in this litigation. 

      "[A] defendant who seeks summary judgment claiming that it did not manufacture the allegedly defective product has the initial burden of establishing that, as a matter of law, it did not manufacture the product in question; the plaintiff must then rebut this showing with affirmative evidence sufficient to create a reasonable inference that the defendant's product caused the injury."

      Here, the plaintiff submitted adequate testimony demonstrating that Colgate did not manufacture the toothpaste at issue in this action. Therefore, it is incumbent on the plaintiff to come forward with evidence to rebut that showing. The plaintiff has failed to demonstrate any of their claims against Colgate-Palmolive for negligent packaging, distribution and sale, or in failing to safeguard and protect their toothpaste from tampering.

      Plaintiff also failed to demonstrate any design defect or manufacturing defect, as well as any breach of the implied warranties of fitness for use and merchantability. Plaintiffs did not demonstrate that Colgate-Palmolive failed to warn or notify the plaintiff or any foreseeable user of the dangers and risks of using their toothpaste product. Colgate-Palmolive is not responsible for counterfeit products sold in the marketplace that violate their trade name and trademarks, which was evident here. Accordingly, the case against Colgate-Palmolive is dismissed. The case against the distributor and seller will proceed to trial.

      Accordingly, it is hereby:

      ORDERED, that the motion for summary judgment made by the defendant, Colgate-Palmolive Company is granted and the complaint is dismissed as to it

      Comment:  I like closeout stores, but I would never put anything in my mouth that comes from them.  This case illustrates why.

      Larry Rogak

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