# Cedeno v. Broan-Nutone, LLC

> District Court, E.D. New York · September 30, 2019

URL: https://www.frixlaw.com/law-library/cases/10303229

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 30, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## How later opinions describe it (automated extraction)

- holding that federal district courts must apply the federal rate of post-judgment interest to judgments rendered in diversity actions

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------X
LUIS CEDENO and JUDITH CEDENO,

Plaintiffs, MEMORANDUM
AND ORDER
-against- 16 CV 796 (RML)

BROAN-NUTONE, LLC,

Defendant.
---------------------------------------------------X
LEVY, United States Magistrate Judge:
This diversity products liability action is before me on the consent of the parties,
pursuant to 28 U.S.C. 636(c). It arises out of an injury sustained by plaintiff Luis Cedeno (“Mr.
Cedeno”) as he was installing a range hood designed and manufactured by defendant Broan-
Nutone, LLC (“defendant”) in his daughter’s home. Mr. Cedeno alleges that the range hood
dropped on him during installation and that the metal fan scrolling inside of the unit cut and
nearly severed his right hand. (See Complaint, dated Jan. 12, 2016 (“Compl.”), Dkt. No. 1-2.)
He asserts causes of action for negligence and strict liability for design and manufacturing
defects, as well as for failure to warn. (Id. ¶¶ 31-46.) He also claims breach of implied and
express warranties. (Id.) His wife, plaintiff Judith Cedeno (“Ms. Cedeno”), brings a derivative
cause of action for loss of consortium. (Id. ¶¶ 47-50.)
Mr. and Ms. Cedeno (“plaintiffs”) commenced this action in the Supreme Court
of the State of New York, Kings County, on January 12, 2016. (See id.) The action was
removed to this court, pursuant to 28 U.S.C. § 1441(b), on February 16, 2016. (See Notice of
Removal, dated Feb. 16, 2016, Dkt. No. 1.) I held a bench trial on March 5, 6, and 7, 2019, at
which seven witnesses testified: Mr. and Ms. Cedeno; Dr. James Pugh (“Dr. Pugh”), an engineer
specializing in biomechanics and injury; Drs. Nader Paksima and Martin Wolpin (“Dr. Paksima”
and “Dr. Wolpin,” respectively), both orthopedic surgeons; Eliot Duncan (“Mr. Duncan”),
defendant’s Vice President for Product Safety; and Dr. Bruce Pinkston (“Dr. Pinkston”), a
mechanical engineer specializing in machine design. (See Trial Transcript, dated Mar. 5-7, 2019

(“Tr.”), Dkt. No. 44-1.) Based on the evidence presented at trial, the parties’ post-trial
submissions, and the applicable law, I now issue my findings of fact and conclusions of law
pursuant to Federal Rule of Civil Procedure 52(a).1 For the reasons stated below, I find in favor
of Mr. Cedeno on the design defect claim in the amount of $900,000 and Ms. Cedeno on the loss
of consortium claim in the amount of $30,000. After reducing the awards by thirty percent to
account for comparative fault, I award $630,000 to Mr. Cedeno and $21,000 to Ms. Cedeno, for
a total of $651,000.
FINDINGS OF FACT
1. Stipulated Facts

The parties stipulated to the following facts in their Amended Joint Pretrial Order.
(See Amended Joint Pretrial Order, dated Dec. 11, 2018 (“Am. JTPO”), Dkt. No. 26, at 3-4.)
The accident that is the subject of this litigation occurred on July 26, 2015 at the home of
plaintiffs’ daughter in Brooklyn, New York. (Id. at 3.) The product at issue is a vented range
hood (the “subject range hood” or the “unit”), designed and manufactured by defendant. (Id.)
Its model number is CJD330 and its serial number is 031520013124. (Id.) As manufactured and

1 To the extent that any finding of fact may be deemed a conclusion of law, it shall be deemed
such a conclusion, and vice versa. See Miller v. Fenton, 474 U.S. 104, 113-14 (1985) (noting the
difficulty, at times, of distinguishing findings of fact from conclusions of law).
sold, it weighs approximately twenty pounds and is thirty inches long on its longest side. (Id.)
Plaintiffs purchased it at retail from Lowes.2 (Id.)
A range hood is a kitchen appliance, typically installed above a cooking range.
(Id.) The purpose of a range hood is to facilitate ventilation during cooking. (Id.) The subject

range hood contains a fan, which exhausts fumes and smoke to the outside. (Id.) As designed
and manufactured, the subject range hood contains a cover, which prevents internal components
from coming into contact with a user when the unit is in place. (Id.) The subject range hood was
sold with an instruction manual, which states that installation “must be done by a qualified
person(s).” (Id.; see also Instruction Manual, Trial Ex. 6, at Bates Stamp 042.) Mr. Cedeno read
the instructions prior to attempting to install the unit and found them to be “totally clear.” (Am.
JTPO at 3.)
On the day of the accident, Mr. Cedeno was installing the subject range hood in
his daughter’s kitchen. (Id.) The home was being renovated at the time, and Mr. Cedeno and his
brother-in-law, Nelson Santiago (“Mr. Santiago”), were installing the appliances. (Id.) Plaintiffs

hired a general contractor to perform certain other tasks. (Id.) Prior to the accident, Mr. Cedeno
had positioned the unit on a set of screws above the stove area, where it was intended to be
mounted. (Id. at 4.) He had no difficulty lifting it into place. (Id.) He then removed and was
carrying it, without the cover in place, when he lost his footing and fell. (Id.) As he fell, the unit
slipped from his grip and fell onto him. (See id.) He does not know what precisely caused him
to lose his footing. (Id.)

2 Lowe’s Companies, Inc., Lowe’s Home Centers, Inc., Lowe’s Home Centers, LLC, and Lowe’s
Home Improvement, LCC (collectively, the “Lowe’s defendants”) were originally parties to this
action. (See Compl.) Plaintiffs stipulated to a dismissal without prejudice of all claims against
the Lowe’s defendants on February 4, 2019. (See Stipulation Amending Caption and Dismissing
Certain Parties, dated Feb. 4, 2019, Dkt. No. 27.)
2. The Subject & Exemplar Range Hoods

According to Mr. Duncan’s testimony, most range hoods use either an axial or a
centrifugal fan3 to draw in and release air. (Tr. at 238:13-22.) Dr. Pugh explained that a
centrifugal fan draws air in sideways, like a waterwheel, whereas an axial fan draws air in
directly, like an airplane propeller. (Id. at 120:14-23.) The fan scrolling is a piece of metal that
surrounds the fan and directs the flow of air. (Id. at 243:10-13.) Dr. Pugh testified that the flow
of air into a centrifugal fan is less contained than in an axial fan; therefore a centrifugal fan may
require more fan scrolling and metalwork. (Id. at 121:2-5.) Some axial fans may not utilize fan
scrolling at all. (See id. at 252:21-23.) Mr. Duncan testified that in any centrifugal fan, the
shape of the fan scrolling is very important to overall functionality. (Id. at 243:10-244:2.)
a. The Subject Range Hood
The subject range hood is a part of defendant’s Allure line and was designed
primarily for sale at Lowes. (Id. at 241:5-12.) It contains a centrifugal fan, surrounded by
galvanized steel fan scrolling. (Id. at 244:3-245:1; see also Subject Range Hood, Trial Ex. 1.)

As discussed above, it was manufactured and sold with a cover, which prevents internal
components from coming into contact with a user when the unit is in place. (Am. JTPO at 3.)
According to the instruction manual, the cover must be removed for installation.4 (See
Instruction Manual, Trial Ex. 6, at Bates Stamp 044.) Both Mr. Cedeno and Dr. Pugh testified

3 A centrifugal fan may also be referred to as a “centrifugal blower” or a “squirrel cage blower.”
(Tr. at 238:19-21.)

4 At trial, Mr. Duncan testified that the cover should be in place during installation. (Tr. at
251:14-16.) However, his testimony is contradicted by the instruction manual itself, which
clearly directs the user to remove the cover in preparation for installation and to replace it only
once the unit has been screwed into place above the cooking range. (See Instruction Manual,
Trial Ex. 6, at Bates Stamps 044-46.) The manual even contains pictures of individuals working
on the inside with bare hands and the cover removed. (Id. at 045.)
that the keyholes through the which the unit attaches to a wall or cabinet are located on the inside
of the unit and cannot be accessed with the cover in place. (See Tr. at 43:13-19, 129:2-8.)
Dr. Pugh testified that the edge of the fan scrolling is sharp enough to slice a sheet
of copy paper, and that this capability indicates a sharpness level of approximately 350.5 (Id. at

108:11-109:2.) He further testified that a sharpness level of 350 is “equivalent to . . . the
sharpness of a household knife that has not been prepared, has not been honed, has not been
tended to regularly, but which is usable in the kitchen . . . to cut meat, to cut vegetables.” (Id. at
109:4-7.) Dr. Paksima, plaintiffs’ medical expert, testified that the nature of Mr. Cedeno’s
injury, which he described as “a sharp laceration” with little collateral tissue damage, spoke to
the sharpness of the object that caused it. (Id. at 219:1-16.) Dr. Pinkston, defendant’s
mechanical engineering expert, admitted that the object that caused plaintiff’s injury had to have
been sharp. (Id. at 341:2-4.)
It was Dr. Pugh’s opinion that the sharpness of the fan scrolling posed a danger to
a user installing the subject range hood because the edges are unprotected and because one

would not ordinarily expect there to be sharp edges on the inside of the unit. (Id. at 112:11-25.)
He further testified that the sharp edges could have been covered, rolled, flattened, or folded
without any noticeable effect on the machine’s functionality. (Id. at 113:2-114:7, 126:4-127:4.)
Dr. Pinkston agreed that each of Dr. Pugh’s proposed safety measures was feasible, though
potentially costlier. (See id. at 335:3-10, 341:5-18.) The subject range hood and cover, both
introduced into evidence at trial as Exhibit 1, are pictured separately below:

5 Dr. Pugh did not state which scale of measurement he was referring to when he testified that
the sharpness level of the scrolling was approximately 350, but presumably he was applying the
Brubacher Edge Sharpness Scale (“BESS”).
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The Cover
b. The Exemplar Range Hoods
In addition to the subject range hood, plaintiffs introduced into evidence two
6 . . .
exemplar range hoods, the Nutone” and the Zephyr, both of which contain axial fans encased

6 . . . .
The Nutone range hood is also referred to in the testimony as the Mantra. (See Tr. 252:3-6.)

within a metal or plastic covering. (Id. at 119:21-120:14, 123:3-6.) The Nutone, which was
designed and manufactured by defendant (id. at 119:22-25), does not contain scrolling at all (id.
at 252:21-23). Rather, it uses a galvanized steel “air box” to direct the flow of air. (Id. at
252:23-253:1.) The internal components are housed within the air box, so that they are not
exposed to the user. (See Nutone Range Hood, Trial Ex. 2.) The Zephyr similarly employs
plastic cowling to encase its fan and internal components. (See Tr. at 123:3-6, 254:20-21; see
also Zephyr Range Hood, Trial Ex. 3.) The Nutone and the Zephyr, introduced into evidence at
trial as Exhibits 2 and 3, respectively, are pictured below:

Exhibit 2: The Nutone

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Exhibit 3: The Zephyr
Mr. Duncan testified that two important considerations in designing a range hood
are efficiency and sound, the goal being to move as much air possible with as little noise as
possible. (See id. at 239:3-16.) Dr. Pugh testified that a range hood with an axial fan can be
designed to be even quieter than one with a centrifugal fan, while maintaining the same level of
efficiency. (Id. at 121:19-122:17.) He further testified that the materials and processes
necessary to produce both exemplars were available at the time that the subject range hood was
designed and manufactured. (Id. at 121:7-10, 123:7-10.) While Mr. Duncan testified that the
Nutone is louder than the subject range hood. (id. at 252:18), it was Dr. Pinkston’s opinion that a
typical consumer would not notice a difference in ordinary operation between a range hood using
a centrifugal fan and one using an axial fan (see id. at 351:20-23).
3. The Accident
On the day prior to the accident, Mr. Cedeno and Mr. Santiago read and discussed
the instruction manual in its entirety, and planned for the installation. (Id. at 39:20-40:5.) They
further prepared for the installation by fitting the unit into the wall and preparing the mounting

holes. (See id. at 40:20-24; 43:23-44:6.) The general contractor had previously installed the
wiring. (Id. at 40:6-12.) Mr. Cedeno testified to his own background as an auto mechanic and as
a pinball machine, copy machine, and computer technician. (See id. at 29:5-32:23.) Based on
his professional background, as well as his prior experience installing a range hood at his

brother’s home, he felt qualified to perform the installation. (Id. at 34:17-35:9.)
On the following day, the day of the accident, Mr. Cedeno hung the unit in the
space where it was to be installed to ensure that it fit properly. (Id. at 45:3-12.) Once he was
satisfied that it fit, he removed the unit, stepped backwards, and turned towards the counter to
place it down. (Id. at 45:13-18.) As he was placing the unit down, he lost his footing and fell.
(Id. at 45:19-20.) As he fell, he lost his grip on the unit and it dropped from a height of
approximately one foot onto his arm and a portion of his chest. (Id. at 46:1-3, 57:11.) He
testified that he is unsure which portion of the unit cut him, but believes that it was the fan
scrolling. (See id. at 57:15-58:15.)
Mr. Cedeno was working alone with the unit at the time (see id. at 45:4-5), though

his sister-in-law, Elizabeth Santiago (“Ms. Santiago”), was in the room and witnessed the
accident (see Transcript of Deposition of Elizabeth Santiago, dated Jan. 11, 2018 (“Santiago
Dep. Tr.”), Trial Ex. 14, at 11:25-12:6). He testified that he is not prone to falls, did not feel
dizzy, and was not taking any medications that would have affected his balance. (Tr. at 56:20-
57:3.) He further testified that he was wearing sneakers at the time of the accident and that the
floor was free of any debris that could have tripped him. (Id. at 56:17-19, 87:2-18.)
4. Plaintiffs’ Injuries

a. Mr. Cedeno

Mr. Cedeno’s treating surgeon, Dr. Robert Hotchkiss, described Mr. Cedeno’s
injury in his notes as a “near amputation.” (Dr. Hotchkiss’ Records, Trial Ex. 12, at Bates
Stamps 001, 003.) According to the medical records introduced into evidence at trial, as well as
the testimony of Dr. Paksima, the laceration extended from skin to bone, severing veins,
muscles, seven tendons,7 the right wrist ligation branch of the radial artery, the superficial radial
nerve, and the capsule of the wrist joint.8 (See id. at Bates Stamps 036-038; Tr. at 209:2-210:1,
219:15-16.) Dr. Paksima further testified that there was little collateral tissue damage, which
indicates a “clean cut.” (Tr. at 219:1-16.) The injury was to his right hand, which is his
dominant hand. (Id. at 70:7-10.)
Immediately following the accident, Mr. Cedeno was treated at the emergency
room of Mount Sinai Hospital, Brooklyn. (Id. at 47:1-48:10; Mount Sinai Emergency Room
Records, Trial Ex. 8.) He was bleeding profusely and lost a large amount of blood on the way to
the hospital. (Id. at 47:3-8.) Once the bleeding was controlled, he was transferred to Kings
County Hospital. (Id. at 48:2-17; Kings County Hospital Records, Trial Ex. 9.) The following
day, he underwent surgery at the Hospital for Special Surgery to repair the damaged structures in
his wrist and hand. (Id. at 49:10-24.) During the time between the accident and his surgery, Mr.

7 According to the post-operative report, the following tendons were severed: (1) the right
extensor carpi radialis brevis (ECRB); (2) the right extensor carpi radialis longus (ECRL); (3) the
right extensor digitorum communis (EDC); (4) the right extensor indicis proprius (EIP); (5) the
right extensor pollicis longus (EPL); (6) the right abductor pollicis longus (APL); and (7) the
right extensor pollicis brevis (EPB). (See Dr. Hotchkiss’ Records, Trial Ex. 12, at Bates Stamp
036; see also Diagram of Extensor Tendons, Trial Ex. 16.)

8 The capsule is a watertight compartment which holds the joint fluid. (Tr. at 209:18-20.)
Cedeno testified that he experienced “excruciating” pain. (Id. at 59:14-60:8.) Following his
surgery, Mr. Cedeno underwent approximately eight to nine months of physical therapy,
continuing until he reached the maximum level of improvement. (Id. at 65:23-66:2, 220:3-7.)
As a result of his injury, Mr. Cedeno continues to experience a number of

physical limitations, including loss of grip strength, loss of web space between his thumb and
index finger,9 and a decreased range of motion. (Id. at 200:21-205:19.) Due to the damage to
his superficial radial nerve, he also has a loss of sensation in his right hand, as well as an
increased sensitivity to cold. (Id. at 197:14-200:20.) At a practical level, he has difficulty
picking up and holding objects, particularly small ones, and has decreased stamina in his right
hand. (Id. at 70:11-24; 221:3-8.) He can no longer engage in certain recreational activities that
he once enjoyed, such as playing his guitar. (Id. at 70:24-71:5.) He also has difficulty working
with circuit boards, which was previously a hobby of his. (Id. at 70:14-22.) The loss of
sensation makes him vulnerable to injury, since he may not be able to feel a cut or burn. (Id. at
198:5-8.) He also continues to experience pain, which he relieves using topical analgesics such

as Icy Hot. (Id. at 221:5-6.) Dr. Paksima testified that these changes are likely to be permanent.
(Id. at 223:15-20.)
b. Ms. Cedeno

Ms. Cedeno was at Lowe’s when the accident occurred; therefore she did not
witness the accident. (Id. at 169:11-15.) She first found out about the accident when she
received a phone call from Ms. Santiago, saying that Mr. Cedeno was hurt badly, was bleeding,
and was taken to the emergency room (Id. at 169:19-170:1.) After receiving the phone call, she

9 Web space refers to the space between an individual’s fingers. (Tr. 202:17-20.) An individual
with decreased web space will not be able to fully open his or her hand to grasp objects. (Id. at
202:20-203:3.)
immediately left the store and went to the hospital. (Id. at 170:3-6.) As she walked towards the
building, she noticed a trail of blood, which turned out to be Mr. Cedeno’s. (Id. at 170:10-18.)
When she entered Mr. Cedeno’s hospital room, she found him covered in blood and making
pained sounds. (Id. at 171:6-9.) She testified that when she first saw his hand, it did not look

like it was part of his body. (Id. at 175:2-8.)
In the months following the accident, Ms. Cedeno assumed the role of caregiver
for her husband. (Id. at 177:12-18.) She administered his medications and helped him with
bathing and feeding. (Id.) She also had to take responsibility for household chores that Mr.
Cedeno would ordinarily have done. (Id. at 178:1-5.) While Ms. Cedeno is now retired (id. at
165:22-24), she was still working at the time and therefore had to balance her professional
responsibilities with caring for her husband (id. at 177:24-178:5). She described this period as
extremely stressful. (Id. at 177:25.) Ms. Cedeno initially attended her husband’s physical
therapy sessions, but had to stop because it was too difficult to see him in pain. (Id. at 178:23-
179:7.) She also testified to a lack of intimacy and to her husband’s increased irritability in the

approximately six months following the accident. (Id. at 180:17-181:3.) While her relationship
with her husband has largely returned to normal, she testified that today he is “a little more
irritable and a little more lack[ing] [in] patience” than he was before the accident. (Id. at 181:6-
7.) However, she testified she could not be sure that this increased irritability is attributable to
his injury, since “[h]e’s not the type to tell me” when he is in pain. (Id. at 181:8-10.)
CONCLUSIONS OF LAW
1. Liability
Under New York law, which applies in this diversity action, there are four
theories under which a plaintiff may pursue recovery against a manufacturer based upon a claim
of products liability: (1) strict liability; (2) negligence; (3) breach of express warranty; and (4)
breach of implied warranty. Oden v. Boston Sci. Corp., 330 F. Supp. 3d 877, 888 (E.D.N.Y.
2018); Lara v. Delta Int’l Mach. Corp., 174 F. Supp. 3d 719, 740 (E.D.N.Y. 2016). In order to
prevail under any of these theories, a plaintiff must show that the product at issue was defective

and that the defect was the actual and proximate cause of plaintiff’s injury. Lara, 174 F. Supp.
3d at 740 (citing Voss v. Black & Decker Mfg. Co., 450 N.E.2d 204, 208-09 (N.Y. 1983)). New
York law recognizes three types of product defects: (1) design defects; (2) manufacturing
defects; and (3) defective or inadequate warnings. Voss, 450 N.E.2d at 207; McCarthy v. Olin
Corp., 119 F.3d 148, 154-55 (2d Cir. 1997). Plaintiffs in this case allege all three types of defect,
and assert their design and manufacturing defect claims under theories of both strict liability and
negligence.
a. Design Defect
A defectively designed product is “one which, at the time it leaves the seller’s
hands, is in a condition not reasonably contemplated by the ultimate consumer and is

unreasonably dangerous for its intended use; that is one whose utility does not outweigh the
danger inherent in its introduction into the stream of commerce.” Scarangella v. Thomas Built
Buses, 717 N.E.2d 679, 681 (N.Y. 1999) (internal quotation marks omitted). In order to
establish a prima facie case of design defect under New York law, a plaintiff must show that: (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 the
plaintiff’s injury. Oden, 330 F. Supp. 3d at 888; Lara, 174 F. Supp. 3d at 740. New York courts
treat design defect claims sounding in either negligence or strict liability as functionally
synonymous; therefore they may be analyzed concurrently using the same elements.10 Oden,
330 F. Supp. 3d at 887; see also Adams v. Genie Indus., 929 N.E.2d 380, 384 (N.Y. 2010).
Taken together, the first two elements function as a risk-utility balancing test,
which is used to determine whether the product is unreasonably dangerous. See Trisvan v.

Heyman, 305 F. Supp. 3d 381, 404 (E.D.N.Y. 2018). The relevant question is “whether . . . if
the design defect were known at the time of manufacture, a reasonable person would conclude
that the utility of the product did not outweigh the risk inherent in marketing a product designed
in that manner.” Adams, 929 N.E.2d at 384 (quoting Voss, 450 N.E.2d at 108); see also Trisvan,
305 F. Supp. 3d at 404. In Voss, the New York Court of Appeals articulated a non-exclusive list
of factors that may be considered in making this determination:
(1) the utility of the product to the public as a whole and to the
individual user; (2) the nature of the product—that is, the
likelihood that it will cause injury; (3) the availability of a safer
design; (4) the potential for designing and manufacturing the
product so that it is safer but remains functional and reasonably
priced; (5) the ability of the plaintiff to have avoided injury by
careful use of the product; (6) the degree of awareness of the
potential danger of the product which reasonably can be attributed
to the plaintiff; and (7) the manufacturer’s ability to spread any
cost related to improving the safety of the design.

450 N.E.2d 208-209; see also Fasolas v. Bobcat of N.Y., 128 N.E.3d 627, 633 (N.Y. 2019).
Taking into account these factors, I find that plaintiffs have established by a
preponderance of the evidence that the design of the subject range hood was unreasonably

10 In 2002, the Second Circuit characterized “the degree of overlap between negligence and strict
liability for design defects” as being “unsettled” because the New York Court of Appeals had not
ruled directly on the issue. See Jarvis v. Ford Motor Co., 283 F.3d 33, 62 (2d Cir. 2002). More
recently, it has recognized that “New York courts generally consider strict products liability and
negligence claims to be functionally synonymous.” See S.F. v. Archer Daniels Midland Co., 594
F. App’x 11, 12 (2d Cir. Dec. 11, 2014) (summary order) (quoting Goldin v. Smith & Nephew,
Inc., No. 12 CV 9217, 2013 WL 1759575, at *6 (S.D.N.Y. Apr. 24, 2013)).
dangerous, and therefore have satisfied the first two prongs of the prima facie case. The court
finds credible Dr. Pugh’s testimony that the fan scrolling is approximately as sharp as a dull
kitchen knife. (See Tr. at 109:4-7.) Given (1) the downward-facing orientation of the fan
scrolling (see Subject Range Hood, Trial Ex. 1), (2) the necessity of installing the unit at a height

(see Tr. at 127:5-13), (3) the fact that the instruction manual expressly states that the cover must
be removed for installation (see Instruction Manual, Trial Ex. 6, at Bates Stamp 044), and (4) the
fact that a user must place his or her hands inside of the unit and in close proximity to the fan
scrolling in order to access the keyholes (see Tr. at 43:13-19, 129:2-12), the court finds that the
design of the unit created a substantial and foreseeable risk that the unit could fall on a user
during installation and that the fan scrolling could cut him or her. Moreover, through the expert
testimony of Dr. Pugh, plaintiffs established that a safer design employing an axial fan was both
available and feasible at the time the subject range hood was manufactured. (See Tr. at 121:7-
124:24.) Plaintiffs also established that the existing design, using a centrifugal fan, could have
been modified to be made safer by covering, folding, flattening, or rolling the sharp edge, and

that doing so would have been both feasible and economical at the time of manufacture. (See id.
at 124:24-127:4.)
I also find that the design of the subject range hood was an actual and proximate
cause of Mr. Cedeno’s injury. Under New York law, actual causation is present where, but for
the act or omission at issue, the plaintiff’s injury would not have occurred. See Sawyer v. Wight,
196 F. Supp. 2d 220, 227 (E.D.N.Y. 2002). Proximate causation is present where the act or
omission at issue was a substantial factor in causing the plaintiff’s injury. See id.; see also Voss,
450 N.E.2d at 110 (“The tie which proximate cause is to provide . . . must be between the design
defect of the product and the injury—that is, the plaintiff must show that the design defect in the
product was a substantial factor in causing his injury.”) There may be more than one substantial
factor, and thus more than one proximate cause, involved in causing an injury. See Barban v.
Rheem Textile Sys., No. 01 CV 8475, 2005 WL 387660, at *8 (E.D.N.Y. Feb. 11, 2005).
“Plaintiff need not demonstrate . . . that the precise manner in which the accident happened, or

the extent of injuries, was foreseeable.” Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666,
670 (N.Y. 1980). However, where the actions of either a third person or the plaintiff intervene
between the defendant’s conduct and the injury, the plaintiff must show that the intervening acts
were “a normal and foreseeable consequence of [the] defendant’s conduct.” Henry-Lee v. City
of New York, 746 F. Supp. 2d 546, 571 (E.D.N.Y. 2010).
Multiple witnesses testified at trial that, had the sharp edges inside of the unit
been protected, the accident would not have resulted in the near-amputation of Mr. Cedeno’s
hand. (See Tr. at 122:18-124:5, 281:10-14; 336:10-20.) Having inspected both the subject
range hood and the two exemplar range hoods, the court agrees; therefore, I find that the design
of the subject range hood was an actual and substantial cause of Mr. Cedeno’s injury. While

defendant argues that it was not reasonably foreseeable that a person would drop the unit onto his
or her hand with the cover removed (see Defendant’s Proposed Findings of Fact & Conclusions
of Law, dated Apr. 21, 2019 (“Def.’s Post-Tr. Br.”), Dkt. No. 43, at 16), for the reasons
explained above, the court disagrees. The unit had to be installed at a certain height and without
the protective cover. Therefore, I find that plaintiffs have met their burden in showing actual and
proximate causation. Because I find liability on the design defect claim, I make no finding on
manufacturing defect or failure to warn.
b. Comparative Fault
Defendant raises the affirmative defense of comparative fault which, in New
York, is available “[i]n any action to recover damages for personal injury,” including one
brought under a theory of strict liability. N.Y. C.P.L.R. § 1411; Arbegast v. Bd. of Educ. of S.

New Berlin Cent. Sch., 480 N.E.2d 365, 370 (N.Y. 1985); Gottesman v. Graham Apartments,
Inc., No. 65447/2011, 2015 WL 1839746, at *29 (N.Y. Civ. Ct. Apr. 5, 2015). New York is a
pure comparative fault jurisdiction; therefore “the culpable conduct attributable to the claimant
. . . shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished
. . . proportion[ally].” N.Y. C.P.L.R. § 1411; see also Korean Air Lines Co. v. McLean, 118 F.
Supp. 3d 471, 491 (E.D.N.Y. 2015).
“Culpable conduct” refers not only to negligent conduct, but any “conduct which,
for whatever reason, the law deems blameworthy.” Arbegast, 450 N.E.2d at 370. For this
reason, the New York Court of Appeals has stated that “comparative causation” is a more
accurate description of the process of assigning fault. Id. It has further stated that the finder of

fact should analyze comparative fault from a “holistic perspective,” considering “the culpable
conduct attributable to the [plaintiff as] compared with the total culpable conduct which caused
the damages” and “fix[ing] the relationship of each party’s conduct to the injury sustained.”
Rodriguez v. City of New York, 101 N.E.3d 366, 377 (N.Y. 2018) (quoting Arbegast, 480
N.E.2d at 370-71); see also Integrated Waste Servs., Inc. v. Azko Nobel Salt, Inc., 113 F. 3d 296,
300 (2d Cir. 1997) (“[L]iability is split between plaintiffs and defendants based on the relative
culpability and causal significance of their conduct.” ) (footnote omitted).
In this case, the court has already determined that the defective design of
defendant’s product was a substantial factor in causing Mr. Cedeno’s injury. The court now
finds that Mr. Cedeno’s tripping and dropping the unit was an additional substantial factor in
causing his injury. The exact reason that Mr. Cedeno tripped and fell is an enduring question in
this case, and one to which we may never know the answer. Mr. Cedeno testified at trial that, as
he backed away from the stove area and began to turn towards the counter, his “feet got caught

up somehow.” (Tr. at 45:13-18.) He does not know what precisely caused him to trip. (Id.; see
also Am. JTPO at 4.) He testified that he was wearing appropriate footwear at the time of the
accident and that the floor was clear of any debris that could have tripped him. (Tr. at 56:17-19,
87:2-18.) He also testified that he is not prone to falls, did not feel dizzy, and was not taking any
medications that would have affected his balance. (Id. at 56:20-57:3.) The only witness to the
accident was Ms. Santiago, whose testimony adds little clarity to Mr. Cedeno’s account. (See
Santiago Dep. Tr. at 12:17-18) (“He had it out, and then he was backing up, and the next thing I
know, he fell.”).) While we do not know what caused Mr. Cedeno to trip, liability for the portion
of the damages attributable to his tripping must fall somewhere. I find that it would be unfair for
it to fall entirely on defendant, and thus it is appropriate to apportion fault in this case. In

recognition of the care with which Mr. Cedeno approached the entirety of the installation
process, while also acknowledging the critical causal role that his tripping played in causing his
injury, I assign seventy percent of the total fault to defendant and thirty percent to Mr. Cedeno.11

11 I do not assign any fault to Mr. Cedeno for carrying the unit without a cover. As previously
discussed, the removal of the cover was necessary for installation and Mr. Cedeno was in the
process of installing the unit when the accident occurred. (See Tr. at 43:13-19, 129:2-12.) Even
defendant’s expert, Dr. Pinkston, stated that he would not fault Mr. Cedeno for moving the unit
without the cover in place because “[i]t is not an obvious thing to do.” (Id. at 344:12-25.)
2. Damages
a. Mr. Cedeno
Mr. Cedeno seeks an award of $1 million to $1.2 million for past and future pain
and suffering, including loss of enjoyment of life. (See Plaintiffs’ Proposed Findings of Fact and

Conclusions of Law, dated Apr. 22, 2019 (“Pls.’ Post-Tr. Br.”), Dkt. No. 44, ¶ 28.) He suggests
a distribution of $550,000 for past pain and suffering and $500,000 for future pain and suffering.
(Id.) He does not seek damages for loss of income12 or medical expenses. (See id.)
Damages for pain and suffering are difficult to quantify and vary greatly
depending on the facts and circumstances of each case. In fashioning an appropriate award,
courts typically consider the decisions of other courts and jury verdicts involving similar injuries.
Glassman-Brown v. Pouring Wine, LLC, No. 14 CV 3763, 2016 WL 1358585, at *2 (S.D.N.Y.
Feb. 29, 2016), report and recommendation adopted, 2016 WL 1367230 (S.D.N.Y. Apr. 5,
2016). Plaintiffs’ counsel has submitted one citation to a court decision and one citation to a jury
verdict for the court’s consideration.13 See Harris v. City of New York, 770 N.Y.S.2d 380, 381-

82 (2nd Dep’t 2003) (reducing jury award of $500,000 for past pain and suffering and $550,000
for future pain and suffering to $200,000 ($278,867.39 adjusted for inflation14) and $350,000
($488,017.93 adjusted for inflation), respectively, for a twenty-nine year-old with an injury to the

12 Mr. Cedeno was retired at the time of the accident. (See Tr. at 4:8-9; 224:12-13.)

13Both parties have additionally submitted a number of settlement figures for the court’s
consideration. Because settlement figures may take into account factors other than reasonable
co mpensation, the court does not find the settlement figures submitted by the parties to be
instructive in fashioning an appropriate damages award. See Norcia v. Dieber’s Castle Tavern,
Ltd., 980 F. Supp. 2d 492, 500-01 (S.D.N.Y. 2013) (“Under New York law . . . courts look to
approved awards in similar cases as guideposts in fashioning appropriate damages awards.”)

14 To ensure accurate valuation of prior awards, I have adjusted for inflation where a prior award
is more than six years old, i.e., issued prior to 2013.
primary tendon in his right wrist, who underwent successful reconstructive surgery, but
continued to experience pain, weakness, numbness, and loss of motion); Lockwood v. Hilbert
College, No. 168/96, 1997 WL 850374 (Sup. Ct. Erie Cty. Nov. 18, 1997) (jury award of
$550,000 for pain and suffering ($879,170.72 adjusted for inflation) to a ten year-old with severe

lacerations to both wrists and arms, which resulted in nerve, tendon, and artery damage and
required surgery and extensive rehabilitation). Defendant submits an additional jury verdict.
See Piccione v. 1165 Park Ave., Inc., No. 2790/92, 1999 WL 35218763 (Sup. Ct. N.Y. Cty. Nov.
19, 1999) (jury award of $325,000 ($500,488.30 adjusted for inflation) for past pain and
suffering to twenty-nine year-old plaintiff with blunt force trauma to his dominant hand and
wrist, which required eight surgeries).
In addition to the citations provided by the parties, the court has surveyed pain
and suffering awards in other cases involving arm, wrist, and hand injuries, including the
following: Norcia v. Dieber’s Castle Tavern, Ltd., 980 F. Supp. 2d 492, 508 (S.D.N.Y. 2013)
(awarding $1,266,000 for past pain and suffering and $1,435,140 for future pain and suffering,

based on a projected life expectancy of fifty-one years, to a cruise passenger who suffered
permanent injuries to both arms in accident with intoxicated speedboat driver, losing significant
functionality); Villatoro v. Sullivan, No. 7781/11, 2014 Jury Verdicts LEXIS 10754 (Sup. Ct.
Nassau Cty. Oct. 29, 2014) (jury award of $450,000 for past pain and suffering and $550,000 for
future pain and suffering, based on a projected life expectancy of forty-four years, in a medical
malpractice case where a nerve in plaintiff’s dominant arm was accidentally lacerated during
surgery, requiring one additional surgery and resulting in residual pain and reduced functionality
of the hand and wrist); Abreu v. Wel-Made Enters., No. 36405/07, 2014 Jury Verdicts LEXIS
10290 (Sup. Ct. Kings Cty. Oct. 16, 2014) (jury award of $1.4 million for past pain and suffering
and $750,000 for future pain and suffering to a fifty-one-year old diesel mechanic whose
dominant hand and wrist were injured by a piece of metal protruding from the mixing barrel of a
cement truck, fracturing bone and lacerating a branch of the radial artery, as well as muscle,
ligament, nerve, and multiple tendons; plaintiff required two surgeries and physical therapy, and

suffered residual pain, reduced range of motion, reduced grip strength, and difficulty holding and
lifting objects); Diouf v. New York City Transit Auth., 909 N.Y.S.2d 451, 452 (1st Dep’t 2010)
(upholding jury award of $800,000 for future pain and suffering ($941,255.46 adjusted for
inflation) to fifty-five year-old tailor who broke both wrists as the result of a slip-and-fall,
requiring two surgeries and resulting in reduced range of motion, ongoing tenderness, reduced
grip strength, and traumatic arthritis); Nutley v. New York City Transit Auth., 913 N.Y.S.2d 694,
695 (2d Dep’t 2010) (upholding jury award of $300,000 ($352,970.80 adjusted for inflation) for
past pain and suffering and $200,000 ($235,313.86 adjusted for inflation) for future pain and
suffering to plaintiff who suffered injury to his dominant hand and wrist as the result of a slip-
and-fall, requiring surgery and resulting in residual pain, numbness, tingling, loss of strength,

and reduced range of motion); Karwacki v. Astoria Med. Anesthesia Assocs., P.C., 808 N.Y.S.2d
123, 124 (2d Dep’t 2005) (upholding jury award of $200,000 ($262,732.21 adjusted for
inflation) for past pain and suffering and $400,000 ($525,464.41) for future pain and suffering to
plaintiff who fell from a ladder and broke his dominant wrist, requiring two surgeries and
resulting in permanent nerve damage, traumatic arthritis, residual pain and weakness, reduced
range of motion, and reduced grip strength in some fingers); Keefe v. E & D Specialty Stands,
Inc., 708 N.Y.S.2d 214, 215 (4th Dep’t 2000) (upholding jury award of $1 million
($1,489,883.86 adjusted for inflation) for future pain and suffering, based on a life expectancy of
forty years, to a plaintiff who suffered a laceration to his ulnar nerve while performing iron work,
resulting in permanent loss of feeling in his dominant hand and a fifty percent loss of strength in
that hand); Yanez v. Kasenetz, 705 N.Y.S.2d 588, 589 (1st Dep’t 2000) (upholding jury award of
$87,500 ($130,364.84 adjusted for inflation) for past pain and suffering and $250,000
($372,470.96 adjusted for inflation) for future pain and suffering, based on a life expectancy of

thirty-five years, to a laborer who suffered injury to the radial, medial, and ulnar nerves in his
right arm, resulting in fatigue if he used the arm for a prolonged period of time, an inability to lift
heavy objects, and a tendency to drop things from his right hand; plaintiff additionally could no
longer engage in many activities he previously enjoyed); see also De La Cruz v. New York City
Transit Auth., No. 17523/202, 2006 WL 1112958, at *5 (Sup. Ct. Queens Cty. 2006) (reducing
jury award of $2.5 million for past pain and suffering and $12.5 million for future pain to $1
million ($1,272,609.13 adjusted for inflation) and $2 million ($2,545,218.25 adjusted for
inflation), respectively, for a twenty-nine year-old woman who was struck by a bus, which
crushed her right foot, leaving it disfigured, virtually useless, and extremely painful).
Given the unique nature of Mr. Cedeno’s injury, the court has also surveyed cases

involving amputations, including the following: Hwang v. Grace Road Church, 14 CV 7187,
2018 WL 4921638, at *7 (E.D.N.Y. Aug. 10, 2018) (awarding $1 million for past pain and
suffering and $1.65 million for future pain and suffering, based on a life expectancy of thirty-
three years, to a plaintiff who lost his leg above the knee and suffered severe mental anguish as
the result of an assault and battery); Villalba v. Rockford Sys., Inc., No. 02 CV 4455, 2006 WL
526660, at *5 (E.D.N.Y. Mar. 3, 2006) (awarding $50,000 for past pain and suffering
($63,630.46 adjusted for inflation) and $50,000 (same) for future pain and suffering for the
partial loss of two digits on plaintiff’s dominant hand, where the treating doctor’s prognosis was
that he would regain function in the injured hand and be able to lead a relatively normal life);
Marin v. New York City Health & Hosps. Corp., 43 N.Y.S.3d 289, 290 (1st Dep’t 2016)
(upholding jury award of $2 million for past pain and suffering and $4 million for future pain
and suffering over thirty years, in malpractice action where plaintiff provided evidence that his
amputated leg could have been saved following car accident); Nunez v. Levy, No. 114538/03,

2008 WL 2219892, at *12 (Sup. Ct. N.Y. Cty. 2008) (reducing jury award of $5 million for past
pain and suffering and $5 million for future pain and suffering to a twenty-five year-old man
who lost his leg below the knee as a result of a work accident in which a vault door fell on his
foot to $2.5 million ($2,979,034.20 adjusted for inflation) and $4 million ($4,766,454.72
adjusted for inflation), respectively).
Pain and suffering “does not lend itself to neat mathematical calculation.”
Caprara v. Chrysler Corp., 417 N.E.2d 545, 551 (N.Y. 1981). New York courts typically award
damages for past pain and suffering based on “the medical procedures endured and nature of the
injury suffered.” House v. Kent Worldwide Mach. Works, Inc., 359 F. App’x 206, 209 (2d Cir.
2010) (summary order). Damages for future pain and suffering, on the other hand, are calculated

in part by reference to actuarial tables to determine the plaintiff’s projected life span. Id. In
calculating an award for future pain and suffering, the factfinder should “determin[e] the sum
that the plaintiff should have now as compensation for the pain and suffering he will endure.”
Oliveri v. Delta S.S. Lines, Inc., 849 F.2d 742, 751 (2d Cir. 1988).
Mr. Cedeno is currently sixty-five years old. (See Tr. at 27:1; Plaintiffs’ Reply to
Defendant’s Proposed Findings of Fact & Conclusions of Law, dated Apr. 29, 2019, Dkt. No. 45,
at 2.) Therefore, his life expectancy is approximately eighteen years, based on the relevant
actuarial table.15 According to the medical records admitted into evidence at trial, he
additionally suffers from type 2 diabetes, hepatitis C, and cirrhosis of the liver (see Hospital for
Special Surgery Records, Trial Ex. 10, at Bates Stamps 02, 056), which defendant asserts could
potentially shorten his life span. (Def.’s Post-Tr. Br. at 6.) However, neither party presented

evidence at trial or in their post-trial submissions that would allow the court to estimate the
impact that these conditions could have on his life span. Therefore, I will presume a life span of
eighteen years, per the actuarial table.
As described above in my findings of fact, Mr. Cedeno suffered a gruesome
injury, requiring surgery and physical therapy. The court heard testimony as to the
“excruciating” pain he endured and the permanent physical limitations that continue to reduce
the functionality of his hand. Taking into account the relevant standards for determining pain
and suffering damages, the evidence presented at trial, and the above cited cases, I value Mr.
Cedeno’s damages for past pain and suffering at $500,000 and his damages for future pain and
suffering at $400,000, for a total of $900,000. After apportioning the damages to account for

thirty percent comparative fault, I award Mr. Cedeno a total of $630,000.
b. Ms. Cedeno
Ms. Cedeno seeks an award of $100,000 to $150,000 for loss of consortium. (See
Pls.’ Post-Tr. Br. ¶ 30.) She suggests a distribution of $80,000 for past loss of consortium and

15 See United States Department of Health and Human Services, National Vital Statistics Report,
Vol. 68, No. 7, published June 24, 2019, available at: https://www.cdc.gov/nchs/data/nvsr/nvsr68
/nvsr68_07-508.pdf; see also House, 359 Fed. App’x at 209 (concluding that the National Vital
Statistics Report is a self-authenticating document under Federal Rule of Evidence 901). I have
not considered plaintiff’s race or ethnicity, as “[r]ace-based statistics and other race-centric data
cannot be relied upon” in calculating life expectancy for a claimant in computing tort damages.
See G.M.M. ex rel. Hernandez-Adams v. Kimpson, 116 F. Supp. 3d 126, 140 (E.D.N.Y. 2015).
$50,000 for future loss of consortium. (Id.) “It is well settled under New York law that a claim
for loss of consortium is a derivative action and, as such, its viability is dependent on the
viability of a primary cause of action.” Dockery v. United States, 663 F. Supp. 2d 111, 125
(N.D.N.Y. 2009) (internal quotation marks and citations omitted). Since the court has found for

Mr. Cedeno on the design defect claim, Ms. Cedeno’s derivative claim for loss of consortium has
survived. However, any damages she recovers will be reduced by thirty percent to account for
the contributory fault assigned to Mr. Cedeno. See Maidman v. Stagg, 441 N.Y.S.2d 711, 716
(2d Dep’t 1981) (“The damages recoverable . . . by the injured spouse and the consortium
plaintiff will be reduced in the proportion that the injured spouse’s ‘culpable conduct bears to the
culpable conduct which caused the damages.’”).
“The concept of consortium includes not only loss of support or services, it also
embraces such elements as love, companionship, affection, society, sexual relations, solace and
more.” Millington v. Se. Elevator Co., 239 N.E.2d 897, 899 (N.Y. 1968). The cause of action
for loss of consortium “represents the interest of the injured party’s spouse in the continuance of

a healthy and happy marital life” and “seeks to compensate for the injury to that relationship.”
Id. at 900. An award for loss of consortium may include components for both the past and the
future. Rangolan v. Cty. of Nassau, 370 F. 3d 239, 248 (2d Cir. 2004).
The court has surveyed cases awarding damages for loss of consortium, including
the following: Glassman-Brown, 2015 WL 5853802, at *6 (awarding $10,000 for loss of
consortium where spouse of the injured party experienced an adverse change in his marital life
for “several months” due to wife’s diminished capacity to perform household chores, perform
activities of daily living, play golf with him, and engage in an intimate physical relationship with
him); Dockery, 663 F. Supp. 2d at 126 (awarding $40,000 ($47,834.73 adjusted for inflation) for
loss of consortium where the wife of the injured party testified to diminished social life, sleep
loss, and lack of intimacy as a result of her husband’s injury); Goldstein v. United States, 9 F.
Supp. 2d 175, 193-94 (E.D.N.Y. 1998) (awarding $50,000 for loss of consortium ($78,698.77
adjusted for inflation) on the grounds that such a sum “balances the lack of quality leisure time

the Goldsteins shared prior to the accident with the recognition of the many domestic chores
Francine Goldstein did, but can longer do, to keep the house, and the many benefits that Allan
Goldstein derived from those pre-accident efforts”); Battista v. United States, 889 F. Supp. 716,
729 (S.D.N.Y. 1995) (awarding $10,000 ($16,834.51 adjusted for inflation) for loss of
consortium where the wife of the injured party cared for her husband in the first four months
following his accident, but neither party testified that their love and affection for each other had
diminished after the accident, nor did they expend any money to have household chores
performed).
At trial, Ms. Cedeno testified that she took on significant caregiving
responsibilities for her husband in the months following his accident, and that his lack of

intimacy and increased irritability during that time negatively impacted their marital relationship.
She also testified that her relationship with her husband has largely returned to normal, save for
some increased irritability on his part, which may or may not have to do with his injury. Taking
into account Ms. Cedeno’s testimony, and the above cited cases, I value Ms. Cedeno’s damages
for loss of consortium at $30,000. After reducing that figure by thirty percent to account for
comparative fault, I award Ms. Cedeno $21,000.
CONCLUSION
For the reasons stated above, the court finds in favor of Mr. Cedeno on the design
defect claim in the amount of $900,000, representing $500,000 for past pain and suffering and
$400,000 for future pain and suffering, and Ms. Cedeno on the loss of consortium claim in the
amount of $30,000. However, plaintiffs’ respective damages are reduced by thirty percent to
account for comparative fault, resulting in an award of $630,000 to Mr. Cedeno and $21,000 to
Ms. Cedeno, for a total of $651,000 plus post-judgment interest at the federal statutory rate.16

SO ORDERED.

_______/s/_________________
ROBERT M. LEVY
United States Magistrate Judge

Dated: Brooklyn, New York
September 30, 2019

16 See Cappiello v. ICD Publ’ns, 720 F.3d 109, 112 (2d Cir. 2013) (holding that federal district
courts must apply the federal rate of post-judgment interest to judgments rendered in diversity
actions).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10303229. Public record. Not legal advice.