Vindicated mother may pursue civil suit

By Daily Record Staff
Posted: 5:41 pm Tue, February 22, 2011

A mother accused of abusing her 2-year-old son will be allowed to proceed with a civil complaint that blames a child laxative manufacturer for the child’s injuries.

The Appellate Division, Fourth Department has modified a Monroe County Supreme Court order, re-instating the dismissed complaint of Deliris Diaz.

Diaz sought medical treatment in December 2007 for her son Jose for burns to his buttocks and genital area that she claimed resulted after she gave him Little Tummys, a child’s laxative. Little Tummys is allegedly manufactured by Little Remedies Co. Inc., a product of Prestige Brands Inc., a division of Prestige Brands Holdings Inc. headquartered in Westchester County.

Diaz alleged that the burns developed after she gave her son Little Tummys, which later mixed with his stool in his diaper against his skin. Medical professionals did not accept her explanation, suspecting instead that the child had been burned by scalding water.

Diaz was arrested on various child abuse charges and an order of protection was issued on behalf of Jose and her other children following a neglect proceeding in family court. The charges were dismissed several months later based on the opinon of a medical expert that the burns were consistent with exposure to senna, a biotanical ingredient in the defendant’s product.

Diaz sued, claiming the product contained no warnings or other senna information on its packaging. 

Supreme Court Justice Matthew A. Rosenbaum dismissed the complaint in March 2010, ruling Diaz’s claims were preempted under the federal Food, Drug and Cosmetic Act.

However, in its decision Friday, the new Appellate Division, Fourth Department ruled that the case should not have been dismissed on federal preemption grounds. The court held that the portion of the federal statute that applied to over-the-counter drugs specifically did not preempt state product liability claims, such as the claim made in this case of failure to adequately warn. 

In addition, the court held that Ms. Diaz can recover for monetary losses related to damage to her reputation caused by the erroneous child abuse accusations, which resulted in her name being listed on the New York State Child Abuse Registry. Jose, the court ruled, can recover for the pain and suffering and emotional distress caused by the burns and by being separated from his mother.

“We are very gratified by the appellate division’s decision, which we believe is the right one under the law,” said attorney Stephen Schwarz, Faraci Lange LLP managing partner, who represents the family. “Ms. Diaz brought this claim not only to seek justice for her family, but more importantly, to raise awareness about the risks of senna-containing laxatives. This decision allows us to proceed with the case and to continue raising public consciousness about the danger of these products when given to children in diapers.”

Little Remedies et al. were represented by F. Paul Greene of Harter Secrest & Emery LLP.