         09-0979-cv
         Snyman v. W.A. Baum Co., Inc.

                                   UNITED STATES COURT OF APPEALS
                                         F OR T HE S ECOND C IRCUIT

                                                  SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . C ITATION TO A SUMMARY ORDER FILED ON OR AFTER J ANUARY 1,
2007, IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT ’ S L OCAL R ULE 32.1.1.
W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN
ELECTRONIC DATABASE ( WITH THE NOTATION “ SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL .


              At a stated Term of the United States Court of Appeals
         for the Second Circuit, held at the Daniel Patrick Moynihan
         United States Courthouse, 500 Pearl Street, in the City of
         New York, on the 13 th day of January, two thousand and ten.

         Present: ROBERT D. SACK,
                  RICHARD C. WESLEY,
                                Circuit Judges,
                  JOHN F. KEENAN,
                                District Judge. *
         ___________________________________________________

         CARL D. SNYMAN,
                                         Plaintiff-Appellant,


         CINDY DE VILLIERS,
                                         Plaintiff,

                         - v. -                                                 (09-0979-cv)

         W.A. BAUM CO., INC.,
                           Defendant-Appellee.
         ___________________________________________________




                 *
                 The Honorable John F. Keenan, of the United States District Court for
         the Southern District of New York, sitting by designation.

                                                            1
     Appearing for Appellant:    KENNETH F. MCCALLION, McCallion
                                 & Associates LLP, New York, New
                                 York.

     Appearing for Appellee:     RICHARD BAKALOR and JANET J.
                                 LEE, Quirk and Bakalor, P.C.,
                                 New York, New York.


          Appeal from a judgment of the United States District
     Court for the Southern District of New York (Swain, J.).


 1       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

 2   AND DECREED that the judgment of the United States District

 3   Court for the Southern District of New York be AFFIRMED.

 4       Plaintiff, Carl Snyman, appeals from a Memorandum

 5   Opinion and Order of the district court entered on December

 6   22, 2008, dismissing his claims and entering judgment for

 7   Defendant, and from a Memorandum Opinion and Order of the

 8   district court entered on February 6, 2009, denying his

 9   motion to vacate the court’s Order of December 22, 2008 and

10   to reopen the case.

11       We presume the parties’ familiarity with the underlying

12   facts, the procedural history of the case, and the issues on

13   appeal before this Court.   For purposes of clarity, we

14   provide only a limited discussion of the procedural posture

15   of this matter.



                                   2
 1       Plaintiff commenced this action against Defendant, W.A.

 2   Baum Co., in April of 2004.     Defendant is a New York

 3   corporation that manufactures medical supplies.     Plaintiff

 4   is a medical professional, licensed in New Zealand.       This

 5   Court’s jurisdiction is based upon diversity of citizenship

 6   between the parties.     28 U.S.C. § 1332.

 7       In 1996, Plaintiff purchased a second-hand

 8   Baumanometer, a device that measures blood pressure,

 9   manufactured by Defendant in the United States.     In 1999,

10   the mercury in the Baumanometer was released from its

11   housing and spilled onto the floor of Plaintiff’s medical

12   office.     Plaintiff asserts multiple claims arising from

13   injuries allegedly suffered from mercury poisoning as a

14   result of exposure when the mercury spilled out of the

15   Baumanometer.

16       Snyman’s complaint raised claims for breach of

17   warranty, strict products liability and negligence.

18   Following discovery, Defendant moved for summary judgment on

19   several grounds.     The district court granted Defendant’s

20   motion for summary judgment with regard to Plaintiff’s

21   breach of warranty claim, finding it “untimely by any

22   measure.”     Snyman v. W.A. Baum Co., No. 04 Civ. 2709 (LTS)


                                     3
 1   (DFE), 2008 WL 4452139, at *4 (S.D.N.Y. Sept. 30, 2008).

 2   The district court also granted summary judgement to

 3   Defendant on Plaintiff’s negligence and strict products

 4   liability claims as they related to his claim that he

 5   suffered mercury poisoning.          Id.    Plaintiff does not appeal

 6   from these determinations as they relate to his alleged

 7   underlying mercury poisoning.

 8         In his papers submitted in opposition to Defendant’s

 9   motion for summary judgment, Plaintiff argued for the first

10   time that even if his alleged primary condition — mercury

11   poisoning — was time barred, he suffered from an additional

12   injury that was not discoverable until after April 8, 2001.

13   Id. at *5.     Plaintiff characterizes this additional injury

14   as chemical cross-sensitivity, a syndrome that is more

15   commonly known as multiple chemical sensitivity (“MCS”).

16         Because Plaintiff’s allegation that he was suffering

17   from MCS was first raised in his opposition papers, the

18   district court found that summary judgment was not warranted

19   at that time. 1     Instead, on November 3, 2008, the court


           1
             The district court allowed Plaintiff’s MCS-related claims to proceed
     under “a common law doctrine that is commonly referred to as New York’s ‘two-
     injury rule.’” Snyman, 2008 WL 4452139, at *5. As characterized by the
     district court, the “‘two injury’ rule provides that manifestations of
     injuries in toxic tort cases that do not become apparent until many years of
     exposure may be actionable if they are ‘separate and distinct’ from an earlier

                                           4
 1   issued an Order to Show Cause why Plaintiff’s MCS claims

 2   should not be dismissed as incapable of proper proof under

 3   the standards articulated in Daubert v. Merrell Dow Pharm.,

 4   Inc., 509 U.S. 579 (1993), and in Federal Rule of Evidence

 5   702.    The court ordered that Plaintiff’s memorandum of law

 6   and any supporting affidavits be served and filed no later

 7   than December 5, 2008.

 8          Plaintiff failed to respond to the court’s Order within

 9   the allotted time.        Consequently, on December 22, 2008, the

10   court dismissed Plaintiff’s MCS-related claims.                Snyman v.

11   W.A. Baum Co., No. 04 Civ. 2709 (LTS) (DFE), 2008 WL

12   5337075, at *1 (S.D.N.Y. Dec. 22, 2008).              On January 7,

13   2009, Plaintiff moved the court, pursuant to Federal Rule of

14   Civil Procedure 60(b), to vacate its order dismissing the

15   case.    Snyman v. W.A. Baum Co., No. 04 Civ. 2709 (LTS)

16   (DFE), 2009 WL 306505, at *1 (S.D.N.Y. Feb. 6, 2009).                  The


     medical problem caused by the same problem, even if the statute of limitations
     on the previous injury has expired.” Id. We note that while several New York
     State appellate division courts have mentioned such a rule, see, e.g.,
     DiStefano v. Nabisco, Inc., 282 A.D.2d 704, 705, 724 N.Y.S.2d 444, 445 (2d
     Dep’t 2001); Oliver Chevrolet, Inc., v. Mobil Oil Corp., 249 A.D.2d 793, 795,
     671 N.Y.S.2d 850, 852 (3d Dep’t 1998); Fusaro v. Porter-Hayden Co., 145 Misc.
     911, 927, 548 N.Y.S.2d 856, 860 (N.Y. Sup. Ct. 1989), aff’d 170 A.D.2d 239,
     565 N.Y.S.2d 357 (1st Dep’t 1991), and several federal courts have assumed its
     existence under New York law, see, e.g., New Haven Terminal Corp. v. Lake, 337
     F.3d 261, 268 (2d Cir. 2003); Braune v. Abbott Labs., 895 F. Supp. 530, 555-56
     (E.D.N.Y. 1995), the New York Court of Appeals has never adopted a “two
     injury” rule. Unless, and until, the New York Court of Appeals definitively
     establishes the existence of a “two injury” rule in New York, the matter
     remains open.

                                           5
 1   court denied Plaintiff’s    motion, stating that “[a]n

 2   attorney’s negligence . . . does not provide ground for

 3   relief under Rule 60(b)(1).”    Id. (internal quotation marks

 4   omitted).    And, the court continued, “the attorney of record

 5   bears sole responsibility to prosecute his client’s claim,

 6   keep track of deadlines and respond to motions filed on the

 7   docket.”    Id. (internal quotation marks omitted).

 8       This Court reviews a district court’s ruling on a

 9   motion made pursuant to Rule 60(b) for abuse of discretion.

10   Transaero, Inc. v. La Fuerza Aera Boliviana, 162 F.3d 724,

11   729 (2d Cir. 1998).    It is well-established that “Federal

12   Rule of Civil Procedure 60(b) decisions by district courts

13   are accorded deference.”    Grace v. Bank Leumi Trust Co., 443

14   F.3d 180, 187 (2d Cir. 2006).       Under the circumstances of

15   this case, the district court did not abuse its discretion

16   in declining to grant Plaintiff’s Rule 60(b) motion.

17       The Order to Show Cause was sent to two different

18   attorneys who, at the time, represented Plaintiff.       As we

19   have previously held, “where a party fails to act with

20   diligence, he will be unable to demonstrate that his conduct

21   constituted excusable neglect.”       State St. Bank & Trust Co.

22   v. Inversiones Errazuriz Limitada, 374 F.3d 158, 177 (2d


                                     6
 1   Cir. 2004) (internal quotation marks omitted).      Further, the

 2   district court may properly consider the merits of the

 3   underlying action in determining whether to grant a motion

 4   pursuant to Rule 60(b).     See Davis v. Musler, 713 F.2d 907,

 5   915 (2d Cir. 1983).     In this case, the relevant factors

 6   weigh in favor of finding that the district court’s exercise

 7   of discretion was proper.     The record supports a finding

 8   that counsel for Plaintiff failed to act with diligence.

 9       The district court went on to reach the question of

10   whether Plaintiff had met his burden in demonstrating that

11   the evidence proffered regarding his MCS-related claims

12   satisfies the requirements of Daubert and Federal Rule of

13   Evidence 702.   Snyman, 2009 WL 306505, at *2.     We decline to

14   reach this issue and affirm on the ground that the district

15   court properly exercised its discretion in denying

16   Plaintiff’s Rule 60(b) motion.      This holding is sufficient

17   to decide the appeal.     Therefore, we refrain from reaching

18   the broader issue of the scientific validity of a claim for

19   MCS under Daubert and Federal Rule of Evidence 702.      See,

20   e.g., PDK Labs., Inc. v. United States Drug Enforcement

21   Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J.,

22   concurring in part and concurring in judgment) (stating “the


                                     7
 1   cardinal principle of judicial restraint — if it is not

 2   necessary to decide more, it is necessary not to decide more

 3   — counsels us to go no further.”).

 4       The Court has reviewed Plaintiff’s remaining arguments

 5   and finds them to be without merit.   Accordingly, the

 6   judgment of the district court is hereby AFFIRMED.

 7

 8                              For the Court
 9                              Catherine O’Hagan Wolfe, Clerk
10
11                              By: __________________________




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