Wilson et al v. Recreational Water Products Inc et al

Filing 76

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 1/21/14. (ASL)

FILED
2014 Jan-21 PM 04:28
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
CHRISTOPHER WILSON, et al.,
Plaintiffs,
vs.

CASE NO. CV-12-J-2721-NE

RECREATIONAL WATER PRODUCTS,
INC., et al.,
Defendants.

MEMORANDUM OPINION
On December 10, 2013, the court denied defendant Recreational Water
Products, Inc.’s (“RWP”), motion for summary judgment on the grounds that, despite
defendant’s arguments to the contrary, the court had before it evidence that RWP was
the manufacturer of AquaChem 1” chlorine tablets. Memorandum Opinion and Order
of December 10, 2013 (docs. 59-60). In that Opinion, the court noted defendants had
failed to file a motion for summary judgment on the actual merits of plaintiffs’ claims.
Memorandum Opinion of December 10, 2013, at 5 n. 1. Thus, now pending before
the court is defendant RWP’s additional motion for summary judgment (doc. 61),
brief and evidence in support of said motion (docs. 62, 63 and 66), the plaintiffs’
response to said motion (docs. 70-72) and the defendant’s reply (doc. 74).

FACTUAL BACKGROUND
As previously summarized by the court, plaintiff Christopher Wilson asserts
he was injured on July 15, 2010, while opening a container of AquaChem 1”
Chlorinating Tablets. Complaint, ¶¶ 5-6. Upon opening the lid, a cloud of visible
gas emerged from the container and rendered Christopher Wilson unconscious.
Depo. of J. Wilson, at 89-90. Christopher Wilson alleges he suffered severe and
permanent injuries as a result. Complaint, ¶ 17. Plaintiff Jean Wilson alleges loss of
consortium from those injuries. Id., ¶ 20.
The plaintiffs had purchased this same product previously. J. Wilson depo. at
45, 51; C. Wilson at 67-68. The container in question however, was the first one
purchased for chlorinating their pool for the summer of 2010. J. Wilson depo. at 50.
Both Jean and Christopher read the instructions and warning labels on the container
and knew the importance of keeping the chlorine tablets dry. J. Wilson depo. at 5354; C. Wilson depo. at 73-77. They also knew that injuries from breathing chlorine
gas were possible. J. Wilson depo. at 56-57; C. Wilson depo. at 80.
In Jean’s best estimate, this container of chlorine had been opened eight to ten
time prior to the date of the accident. J. Wilson depo. at 59-61. She experienced no
issues with opening the container prior to the date of the accident, including having
removed chlorine tablets no more than a week prior to the injury. J. Wilson depo. at
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61, 77. Christopher could think of no prior problem with this container or the
AquaChem 1” Chlorinating Tabs. C. Wilson depo. at 71-72, 89.
On the date of plaintiff Christopher Wilson’s injury, July 15, 2010, Jean Wilson
pulled the tablet container out and set it on the steps outside, while they cleaned up
around the pool. J. Wilson depo. at 84-85.
Jean Wilson recalled
[The kids were] wanting to get in the pool. It needed to be treated. I
asked Chris to help me. We were cleaning out the pool, skimming it.
I asked him to hand me a chlorine tablet. He opened the container. I
saw the – like the yellow gas came out, hit him in the face, he hit the
ground. I screamed for my son to help me. Went and tried to get him
in the car– well, you know, we got him in the car. I hit the – my OnStar
button, told them what had happened; I would meet them at Section. I
met them up there. Nobody was there. Then, the ambulance came.
They put him on a stretcher. Chris was unconscious and blue, and they
took him in the back of the ambulance. Asked me to step away. They
worked on him. The helicopter landed. They had him intubated and
was doing the breathing for him, pushed him out on – put him in the
helicopter and told me to get to Huntsville Hospital with him.
J. Wilson depo. at 68-69.
According to the plaintiff, the chlorine had been on the steps no more than ten
or fifteen minutes when Christopher opened the container. J. Wilson depo. at 85.
When the cloud of yellow gas hit him in the face, he dropped to the ground and was
grabbing his chest and gasping. J. Wilson depo. at 89-93. When Jean Wilson arrived
at the hospital, Christopher was on a vent and life support. J. Wilson depo. at 103.
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He was intubated for almost a week, then eventually released home. J. Wilson depo.
at 104; C. Wilson depo. at 117. Within a day or two, Christopher returned to the
hospital because he was having difficulty breathing. J. Wilson depo. at 105; C.
Wilson depo. at 118, 133. According to his wife, Christopher has continued to suffer
from memory loss, breathing difficulty and marital problems since the date of the
accident. J. Wilson depo. at 118-120; C. Wilson at 101, 108-110, 143-149. Although
Christopher had asthma prior to the injury, it was well controlled. J. Wilson depo. at
121. He had not received any treatment for it other than from his “kid doctor.” C.
Wilson depo. at 92-94. Since his accident, he is on a variety of medications,
including steroids and inhalers to help his breathing. C. Wilson depo. at 96, 139,
160-164.
When asked what about the chlorine tablets, other than the warning, was
defective or dangerous, Jean Wilson testified as follows:
A. They’re dangerous. It says they’re dangerous. Not in my personal
opinions. I can’t say that, no.
Q. What do you mean, it’s – you mean – talking about the container
says it?
A. The – yeah, the container says it’s dangerous.
Q. Well, you know it’s chlorine and you –
A. Yeah, and it’s dangerous.
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Q. And you know if it’s not used properly or taken care of properly, it
can – it can cause problems and be dangerous, can’t it?
A. Yes, sir.
Q. And that’s something you knew before you ever bought this
product?
A. Yes, sir.
Q. But I just need to make sure I understand here that – that I know, if
y’all have some criticism of this product or something – there’s
something particular that you say was wrong with it, either the container
was broken or the top wasn’t right, or there was some hole in it that
allowed moisture to get in. Do you know of anything like that?
A. No, I don’t know of it, no.
....
Q. And I think you told us you had opened this very container that was
involved in this accident at least several times before the day of the
accident?
A. Yes, sir.
Q. You had opened it, you had removed chlorine from it and used those
chlorine tablets to sanitize your pool, right?
A. Yes, sir.
Q. And all those times you did that, you did not have any trouble?
A. No, sir.
J. Wilson depo. at 135-137. Similarly, Chriostopher Wilson testified as follows:
Q. What, if anything that you know of, was wrong with the container of
chlorine tablets?
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A. I’m not sure.
....
Q. Is there anything about the container of chlorine tablets or the tablets
themselves that you say makes them not reasonably safe?
A. I’m not sure on that one.
Q. Is there anything at all that you say is wrong with this product that
you were using on the date of the accident? I’m talking about the
container of chlorine tablets.
A. I’m not sure.
....
Q. As I understand your testimony today, if there’s something wrong
with that product, you don’t know what it is, correct?
A. Correct.
C. Wilson depo. at 180-181.
Based on the above facts, the plaintiffs brought claims under the Alabama
Extended Manufacturer’s Liability Doctrine (“AEMLD”), claims for negligence and
wantonness, claims for breach of express or implied warranties, and a claim for loss
of consortium.
STANDARD OF REVIEW
A moving party is entitled to summary judgment if there is no genuine issue of
material fact, leaving final judgment to be decided as a matter of law. See Federal
Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
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U.S. 574, 587, 106 S.Ct. 1348, 1355-56 (1986). An issue is “material” if it is a legal
element of the claim under the applicable substantive law which might affect the
outcome of the case. It is “genuine” if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party. Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir.1997).
The facts, and any reasonable inferences therefrom, are to be viewed in the
light most favorable to the non-moving party, with any doubt resolved in the
nonmovant’s favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct.
1598, 1609 (1970). Once met by the moving party, however, the burden shifts to the
non-moving party to come forward with evidence to establish each element essential
to that party’s case sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Earley v. Champion Int’l Corp., 907
F.2d 1077, 1080 (11th Cir.1990).
A party opposing a properly submitted motion for summary judgment may not
rest upon mere allegations or denials of his pleadings, but must set forth specific facts
showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578,
1580 (11th Cir.1990). In addition, the non-moving party's evidence on rebuttal must
be significantly probative and not based on mere assertion or be merely colorable.
See Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
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2505, 2511 (1986). Speculation does not create a genuine issue of fact. Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.2005).
The court must consider the evidence in the light most favorable to the plaintiff
and may not make credibility determinations nor weigh the parties’ evidence.
Frederick v. Sprint/United Management Co. 246 F.3d 1305, 1311 (11th Cir.2001);
Stewart v. Booker T. Washington Insurance., 232 F.3d 844, 848 (11th Cir.2000).
LEGAL ANALYSIS
The issue before the court is whether the plaintiffs have pleaded and
established a sufficient factual basis to hold the named defendant liable for injuries
resulting from plaintiff Christopher Wilson opening a container of AquaChem 1”
Chlorinating Tabs. Plaintiffs assert under the AEMLD, defendant has “presented no
evidence that the product did not reach the Plaintiffs in a condition substantially
unchanged from that which it left RWP.” Plaintiffs’ memorandum, at 2. However,
as made clear from the standard of review, the defendant has no burden to produce
evidence. Rather, the defendant having asserted a lack of any genuine issue of
material fact, the plaintiffs bear the burden to produce evidence that an issue remains
for trial.
The plaintiffs argue that their expert testified that “the product could be
contaminated by water during normal, expected use” and that defendant “RWP should
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have foreseen the alleged alteration of the product it complains of now.” Plaintiffs’
memorandum, at 2. According to plaintiffs’ expert, any amount of water coming in
contact with the tablets would cause chlorine gas to escape. Depo. of Christopher
Brazel (submitted as doc. 49-1) at 215. However, upon further questioning, he
admitted to having conducted no studies to try to measure how much water would
need to enter the container to cause chlorine gas to build inside the container. Brazel
depo. at 352-353.
Defendant points out that the tablets are specifically designed to release
chlorine into swimming pools when mixed with water. Affidavit of Al Yeoman
(submitted as defendant ex. 2), ¶¶ 3, 6. If the product mixed with sufficient water to
create a gas cloud, such contamination would be a significant alteration of the
product. Id., ¶ 9.
Plaintiffs brought claims under the Alabama Extended Manufacturer’s Liability
Doctrine (“AEMLD”), negligent/wanton design, breach of express or implied
warranties, and loss of consortium.1 For all but loss of consortium, the plaintiffs must

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The court has previously dismissed any failure to warn claim the plaintiffs may have
been attempting to bring, although the court noted that the plaintiffs have never pled such a
claim. Buried on pages 6-7 of their response to the defendant’s motion for summary judgment
(doc. 72), the plaintiffs assert
This court’s ruling on RWP’s motion to exclude other aspects of Plaintiffs’ expert
testimony regarding the product container was excluded at the time because there
was not evidence before the court concerning the instructions and warnings on the
labels or whether Christopher Wilson had in fact read and heeded those
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demonstrate an injury caused by a manufacturer, supplier, or seller who markets a
product not reasonably safe when applied to its intended use in the usual and
customary manner. See e.g., Entrekin v. Atlantic Richfield Co., 519 So.2d 447, 449
(Ala.1987); Casrell v. Altec Industries, Inc., 335 So.2d 128 (Ala.1976), Atkins v.
American Motors Corp., 335 So.2d 134 (Ala.1976).
To establish liability under the AEMLD, the plaintiffs must prove they suffered
injuries or damages by one who sold a product in a defective condition unreasonably
dangerous to the plaintiffs as the ultimate users or consumers, if (a) the seller was
engaged in the business of selling such a product, and (b) it was expected to, and did,
reach the user or consumer without substantial change in the condition in which it
was sold. Culpepper v. Stryker Corp., 2013 WL 4852307, 5-6 (M.D.Ala.2013). As
this court has previously noted, proof of an accident and injury is not in itself
sufficient to establish liability under the AEMLD; a defect in the product must be
affirmatively shown.. Townsend v. General Motors Corp., 642 So.2d 411, 415
(Ala.1994); Jordan v. General Motors Corp., 581 So.2d 835, 836–37 (Ala.1991).
Unquestionably, the plaintiffs have proved an injury. However, by plaintiff’s own

instructions and warnings. That evidence is now before the court, allowing the
court to reconsider that exclusion.
However, the court has no motion to reconsider before it. Moreover, the plaintiffs conceded that
its failure to warn claim against RWP was pre-empted by FIFRA, and the court granted the
defendant’s previous motion for summary judgment on this basis.
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expert’s testimony, chlorine tablets are perfectly safe unless and until water is
introduced into the container. See e.g., depo. of Brazel at 344. Brazel testified that
regardless of the package design, if water is allowed to mingle with the chlorine
tablets, the results could be “hazardous.” Id., at 147-148.
In other words, plaintiffs have provided the court with no evidence that the
product was defective as purchased by them. In fact, the plaintiffs testified they used
chlorine out of this very container eight to ten times, without incident, prior to the
date of the injury, belying any claim of the product being unreasonably dangerous as
sold. Indeed, the court has no evidence that the product as sold was not fit for its
ordinary purpose, that being introducing chlorine into swimming pools. See e.g.
Casrell v. Altec Indus., Inc., 335 So.2d 128, 133 (Ala.1976) (“A ‘defect’ is that which
renders a product ‘unreasonably dangerous,’ i.e., not fit for its intended purpose”).
Without evidence to support the conclusion that the product was defective and/or
unreasonably dangerous when it left the hands of the seller, the burden is not
sustained. Tanksley v. ProSoft Automation, Inc., 982 So.2d 1046, 1051 (Ala.2007);
citing Jordan, 581 So.2d at 837.
This court has previously ruled that plaintiffs’ expert may not testify as to
whether the container was airtight or whether different packaging could have
prevented the injury. Even if the court had allowed such testimony, it would not
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satisfy the plaintiffs’ burden. Evidence of whether different packaging theoretically
could have prevented Christopher Wilson’s injuries is not akin to proving this
product, as sold, was unreasonably dangerous.
The court has nothing before it which establishes why or how the container in
question released a cloud of chlorine gas when Christopher opened it. Clearly, the
product itself was not defective, because the plaintiffs had used it previously eight to
ten times out of that very container. Thus, somewhere between the prior use and the
use which caused the injury, chlorine gas somehow collected in the container.
However, all the testimony on how this may have happened amounts to no more than
speculation. “[T]he manufacturer of a product is not an insurer against all harm that
might be caused by the use of the product, and the manufacturer or designer is not
obligated to produce an accident-proof or injury-proof product.” Verchot v. General
Motors Corp., 812 So.2d 296, 301 (Ala.2001). Rather, the AEMLD is a fault based
doctrine, and plaintiffs must prove more than the fact that an injury occurred while
using the product. Borum v. Werner Co., 2012 WL 2047678, at *14 (N.D.Ala.2012).
The only evidence presented by the plaintiffs is that a cloud of chlorine gas escaped
and Christopher was seriously injured therefrom. This is not evidence of a defect in
either the product or the packaging. The plaintiffs have failed to present substantial
evidence that the product was sold with a defect. See e.g., Jordan v. General Motors
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Corp., 581 So.2d 835, 836-837 (Ala.1991). The necessary corollary to the lack of
evidence as to what actually caused the injury to occur is that plaintiffs cannot
establish that Christopher Wilson’s injuries were caused by any defect in the product
or its packaging.
The plaintiffs’ assert their remaining claims, for negligence and wantonness,
breach of express or implied warranties, and loss of consortium, should survive
summary judgment, but fail to brief any of them. However, because the plaintiffs
failed to address any of these claims in their response to the defendant’s motion for
summary judgment, the court deems the same abandoned. See Coalition for the
Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th
Cir.2000) (“failure to brief and argue [an] issue during the proceedings before the
district court is grounds for finding that the issue has been abandoned.”); Iraola &
CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d 1274, 1284 (11th Cir.2003); see also
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001).
CONCLUSION
In accordance with the foregoing, the court finds that defendant RWP is
entitled to summary judgment in its favor on all counts of the complaint, as no

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genuine issues of material fact exist, and the court shall grant defendant’s motion in
this regard by separate Order.
DONE and ORDERED this the 21st day of January, 2014.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

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