14

‐ 1615

‐ cv

S.F. v. Archer Daniels Midland Co., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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 ʹ 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 ʺ SUMMARY ORDER ʺ ). 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in

the City of New York, on the 11 th day of December, two thousand fourteen.

PRESENT: DENNY CHIN,

SUSAN L. CARNEY,

Circuit Judges

. ROBERT W. SWEET,

District Judge

. *

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

S.F., AS PARENT AND NATURAL GUARDIAN

OF S.E.F., AN INFANT,

Plaintiff

‐ Appellant

,

v. 14

‐ 1615

‐ cv

ARCHER DANIELS MIDLAND COMPANY, CARGILL

INC., INGREDION INC., TATE & LYLE INGREDIENTS

AMERICAS, LLC, ROQUETTE AMERICA INC.,

Defendants

‐ Appellees,

* The Honorable Robe rt W. Sweet, of the United States District Court for the

Southern District of New York, sitting by designation.‐ 2

‐ PENFORD PRODUCTS CORPORATION,

Defendant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ x

FOR PLAINTIFF

‐ APPELLANT: JOHN MICHAEL HAYES, Law Office of J.

Michael Hayes, Buffalo, New York.

FOR DEFENDANTS

‐ APPELLEES STEPHEN VICTOR D ʹ AMORE (Dan K. Webb,

ARCHER DANIELS MIDLAND Scott P. Glauberman, Cornelius M. Murphy,

COMPANY, CARGILL INC., William P. Ferranti, on the brief ), Winston &

INGREDION INC., TATE & LYLE Strawn LLP, Chicago, Illinois, and Kevin M.

INGREDIENTS AMERICAS, LLC: Hogan, Phillips Lytle LLP, Buffalo, New York.

FOR DEFENDANT

‐ APPELLEE David Ray Adams, Hurwitz & Fine P.C.,

ROQUETTE AMERICA INC.: Buffalo, New York, and Peter N. Wang,

Yonaton Aronoff, Foley & Lardner LLP, New

York, New York.

Appeal from the United States District Court for the Western District of

New York (Skretny, J. ).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

.

Plaintiff

‐ appellant S.F., as parent and natural guardian of S.E.F., an infant, 1

appeals from the judgment of the district court entered April 22, 2014 dismissing S.F. ʹ s

amended complaint against defendants

‐ appellees, manufacturers of high fructose corn

syrup (the ʺ defendants ʺ ). S.F. alleges that S.E.F. ʹ s consumption of high fructose corn

syrup was a substantial factor in causing S.E.F. to develop Type 2 Diabetes. By decision

1 Fed. R. Civ. P. 5.2(a) dictates that only a minor ʹ s initials should be used in publicly filed

documents, and this rule extends to the child ʹ s parents. See P.M. v. Evans

‐ Brant Cent. Sch. Dist.

, No. 08

‐ CV

‐

168A, 2008 WL 4379490, at *3 (W.D.N.Y. Sept. 22, 2008).‐ 3

‐ and order filed April 21, 2014, the district court granted defendants ʹ 12(b)(6) motion to

dismiss S.F. ʹ s complaint, which alleged claims for negligence, gross negligence, strict

products liability resulting from design defect, and failure to warn under New York

law. We assume the parties ʹ familiarity with the facts, the procedural history, and the

issues presented for review.

We review a district court ʹ s dismissal for failure to state a claim under

Fed. R. Civ. P. 12(b)(6) ʺ de novo

, construing the complaint liberally, accepting all factual

allegations in the complaint as true, and drawing all reasonable inferences in the

plaintiff[s ʹ ] favor. ʺ Bryant v. N.Y. State Educ. Dep ʹ t

, 692 F.3d 202, 210 (2d Cir. 2012)

(alteration in original) (internal quotation marks omitted).

First, S.F. ʹ s claims for negligence, gross negligence, and strict products

liability based in design defects fail because she did not allege a safer alternative design

for high fructose corn syrup. To state a claim for defective design under New York

strict products liability law, a plaintiff must allege that: ʺ (1) the product as designed

posed a substantial likelihood of harm; (2) it was feasible to design the product in a

safer manner; and (3) the defective design was a substantial factor in causing plaintiff ʹ s

injury. ʺ Lewis v. Abbott Labs.

, No. 08 Civ. 7480(SCR)(GAY), 2009 WL 2231701, at *4

(S.D.N.Y. July 24, 2009) (citing Voss v. Black & Decker Mfg. Co.

, 59 N.Y.2d 102, 106

‐ 08

(1983)) (internal quotation marks omitted). ʺ New York courts generally consider strict

products liability and negligence claims to be functionally synonymous. ʺ Goldin v.‐ 4

‐ Smith & Nephew, Inc.

, No. 12 Civ. 9217(JPO), 2013 WL 1759575, at *6 (S.D.N.Y. Apr. 24,

2013) (citing Denny v. Ford Motor Co.

, 87 N.Y.2d 248, 258 (1995)) (internal quotation

marks omitted). S.F. failed to plead a safer alternative form of high fructose corn syrup,

and S.F. ʹ s attorney conceded as much during oral arguments. As the district court

noted, while S.F. may be suggesting that high fructose corn syrup should not be used at

all, a design

‐ defect claim will not stand if the only alternative is an outright ban. See

Clinton v. Brown & Williamson Holdings, Inc.

, 498 F. Supp. 2d 639, 648 (S.D.N.Y. 2007);

Adamo v. Brown & Williamson Tobacco Corp.

, 11 N.Y.3d 545, 551 (2008).

Second, all of S.F. ʹ s claims rely on ʺ market

‐ share liability theory, ʺ and we

reject its application to this case. The doctrine ʺ provides an exception to the general rule

that

. . . a plaintiff must prove that the defendant ʹ s conduct was a cause

‐ in

‐ fact of the

injury. ʺ Hamilton v. Beretta U.S.A. Corp.

, 96 N.Y.2d 222, 240 (2001). Under New York ʹ s

market

‐ share liability theory, first adopted in Hymowitz v. Eli Lilly & Co.

, 73 N.Y.2d 487

(1989), a defendant manufacturer may ‐‐ in limited circumstances ‐‐ ʺ be presumed liable

to the extent of its share of the relevant product market. ʺ In re Methyl Tertiary Butyl

Ether ( ʺ MTBE ʺ ) Prods. Liab. Litig.

, 725 F.3d 65, 115 (2d Cir. 2013). Market

‐ share liability,

however, ʺ has been sparingly adopted ʺ and ʺ [i]ts application has been largely rejected

by the courts primarily on the ground that the product in question was not fungible. ʺ

Matter of N.Y. State Silicone Breast Implant Litig.

, 631 N.Y.S.2d 491, 493 (Sup. Ct. 1995).

Here, defendants manufactured a product that was used in non

‐ fungible products‐ 5

‐ identifiable by brand names. See Brenner v. Am. Cyanamid Co.

, 699 N.Y.S.2d 848, 853

(App. Div. 1999) (rejecting market

‐ share liability where ʺ the finished product that was

used by consumers

. . . was not fungible ʺ ); DaSilva v. Am. Tobacco Co.

, 667 N.Y.S.2d 653,

655 (Sup. Ct. 1997) (rejecting market

‐ share liability where plaintiffs could identify

brands). Hymowitz is the only Court of Appeals case to apply market

‐ share liability,

and the facts of that case are unique. 2 We decline to extend market

‐ share liability to

S.F. ʹ s case substantially for the reasons articulated by the district court in its thorough

and well

‐ reasoned order.

We have reviewed S.F. ʹ s remaining arguments and conclude they are

without merit. Accordingly, we AFFIRM the judgment of the district court.

FOR THE COURT:

Catherine O ʹ Hagan Wolfe, Clerk

2 ʺ We stress, however, that the DES situation [pregnant women ingesting the drug

diethylstilbestrol] is a singular case, with manufacturers acting in a parallel manner to produce an

identical, generically marketed product, which causes injury many years later, and which has evoked a

legislative response reviving previously barred actions. ʺ Hymowitz

, 73 N.Y.2d at 508.