Ferraro v. Best Buy Co., Inc. et al

Filing 132

MEMORANDUM Opinion and Order Signed by the Honorable Edmond E. Chang on 2/6/2012:Mailed notice(slb, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
PATRICIA FERRARO,

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Plaintiff,
v.
HEWLETT-PACKARD CORPORATION,
Defendant.

No. 08 CV 03638

Judge Edmond E. Chang

MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Ferraro filed this product-liability suit against Best Buy and
Hewlett Packard, seeking damages under common law theories of strict liability and
breach of the implied warranty of merchantability. R. 31.1 Defendant Hewlett Packard
has moved for summary judgment on both claims. R. 84.2 As explained below, Hewlett
Packard’s motion for summary judgment is granted.
I.
On May 17, 2006, Patricia Ferraro was using her Hewlett Packard (HP) laptop
when she noticed that the low battery light turned on. R.85 ¶ 2. She then shut the
laptop down and plugged the power adapter into the wall. Id. ¶ 3. In this product
liability suit, a detailed description of the power adapter is necessary to understand
this opinion. The power adapter is shaped like a brick: it is enclosed by black plastic

1

Citation to the record is “R.” followed by the docket entry. The Court has subject
matter jurisdiction over her claims based on diversity jurisdiction. See 28 U.S.C. § 1332.
2

Earlier in the litigation, Ferraro agreed to entry of judgment in Best Buy’s favor. R.

107.

and is 4¼ inches long, 1¾ inches wide, and 1c inches high. R.85, Exh. G at 2. After
plugging it in, Ferraro placed the adapter on the left arm of the couch she was sitting
on. R. 85 ¶ 4. A laptop power adapter is designed to house a transformer, which
converts alternating current power that is supplied by the wall

into direct current,

which is the kind of energy used by the laptop itself. R. 85, Exh. G at 2. One end of the
adapter is permanently connected to a cord that connects with the computer, while the
other end has a detachable cord that can be connected to a standard wall outlet. Id. at
2. A label is attached to the bottom of the adapter, but there are no labels anywhere
else on the enclosure. Id.
After Ferraro placed the power adapter on the arm of the couch, she fell asleep.
R.85 ¶ 4. When she woke up seven hours later, she noticed that her arm was now
resting on the adapter

it had fallen off the arm of the couch and ended up in contact

with her skin. R.103 at 4. More alarmingly, she noticed that her right forearm was
covered with blisters. R.85 ¶ 4. Ferraro was later diagnosed with second- and thirddegree burns and now suffers from permanent scarring. R.103 at 4.
Ferraro filed suit against Best Buy, which had sold her the laptop, and against
HP, which had manufactured the laptop. Her complaint alleged negligence, strict
liability, and breach of implied warranty of merchantability. R.1, Exh. A. The
defendants removed the case to federal court. R.1. On May 16, 2008, Ferraro filed an
amended complaint, which included only two claims against HP: strict liability and
breach of implied warranty of merchantability. R. 31. Discovery followed, including
expert discovery offered by both HP and Ferraro. HP has filed a motion for summary
2

judgment on all claims against it (as noted above, supra at 1 n.2, Ferraro agreed to
entry of judgment in Best Buy’s favor, R. 107).
II.
Summary judgment must be granted if “the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a). In determining whether there is a genuine issue
of fact, the Court “must construe the facts and draw all reasonable inferences in the
light most favorable to the nonmoving party.” Foley v. City of Lafayette, 359 F.3d 925,
928 (7th Cir. 2004).
To avoid summary judgment, the opposing party must go beyond the pleadings
and “set forth specific facts showing that there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists
if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. at 248. The party seeking summary judgment has the burden of establishing
the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). Summary judgment will be granted against “a party who fails to make
a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Id. at 322. The
non-moving party “must do more than simply show that there is some metaphysical
doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986). In other words, the “mere existence of a scintilla of evidence in

3

support of the [non-movant's] position will be insufficient; there must be evidence on
which the jury could reasonably find for the [non-movant].” Anderson, 477 U.S. at 252.
III.
Before analyzing the legal theories, and how they fit (or do not fit) with the facts,
it is worth detailing the proffered evidence of the six expert witnesses disclosed in
discovery. Ferraro has presented three experts: Peter Poczynok, Nathaniel Johnson,
and Dr. Robert Cucin. HP has also presented three experts: Dr. Raphael Lee, Don
Galler, and Raina Shah.
A.

Peter Poczynok

Poczynok is a mechanical engineer who is employed by ARRCA, a litigation
consulting firm, as a Regional Vice President and Senior Mechanical Engineer. R.85
¶ 16. For this case, Poczynok examined the power adapter, reviewed deposition
transcripts, and read HP manuals. After reviewing all of these materials, he concluded
that HP should have either provided a heat warning in the product documentation or
on the adapter or alternatively, HP could have designed the adapter differently to
reduce the amount of heat it generated. Id. ¶ 17.
Poczynok testified that HP should have foreseen that the power adapter could
cause burns on potential users. R.85, Exh. H (Poczynok Dep. at 127 128). He noted
that the Safety and Comfort guide included language that implied that HP anticipated
situations where the power adapter would not have sufficient air circulation. Id. at
130. According to Poczynok, HP should have placed more warnings in the laptop’s
manuals and product documentation. Id. at 129 130. Specifically, he notes that there
4

are three places where HP could have warned consumers: in the Getting Started
manual, in the Safety and Comfort Guide, and on the adapter itself. R. 85, Exh. G at
3.
Poczynok stated that the warning should “identify the hazard, communicate the
consequences of coming into contact with the hazard, provide methodologies for
avoiding the hazard, and prescribe countermeasures, if any.” Id. Such a warning must
be readily visible to the consumer and alert the user to the hazard in time to take
“appropriate action.” Id. He cited ANSI Z535, a standard used for on-product warnings,
as an appropriate standard HP should have followed for an effective warning. Poczynok
Dep. at 128 129.
Poczynok also explained that the power adapter also had a design defect. Id. at
139 140. He proposed four different design alternatives. First, instead of placing the
transformer in the adapter itself, HP could have designed the laptop so that the
transformer would be housed inside the laptop itself instead of being housed in an
external power adapter. Id. at 140. Second, the external power adapter could have
included an active cooling device (he suggested a fan) in order to vent any excessive
heat buildup. Id. Third, the adapter could have included a heat shield. Id. at 140 141.
Fourth, HP could have made the box housing the adapter larger, so there would be
more room for air inside. That air would serve as a buffer between the transformer and
the plastic housing material and therefore reduce the temperature of the adapter. Id.
at 141.

5

B.

Nathaniel Johnson

Mr. Johnson is an electrical engineer who has worked with transformers and
electrical power supplies. His testimony concerned the burn potential of a product and
the amount of time it takes to cause a burn. R.85 ¶ 24.
Johnson conducted tests of the power adapter and measured the adapter’s
surface temperature as time went on. R.85, Exh. I at 3. The adapter was placed on top
of two layers of cotton sheet material. Id. Throughout the test, Johnson measured the
temperature of the adapter by placing two temperature measurement devices one on
top, one underneath

on the adapter. Id. Approximately 1½-hours into the test, he

placed a shop towel over the adapter, and noted the temperature changes. Id. Three
hours later, he removed the towel and continued to measure the temperature. Id.
Johnson recorded the temperatures at 1¼-hour intervals, and observed that the
underside of the adapter consistently remained 18E Celsius warmer than the top of the
adapter. Id. During the test, the adapter reached 58.5E Celsius after an hour and a
half, and 77.2E Celsius after the top was covered with a towel. Id.
From the test results, Johnson derived four conclusions. First, the adapter
presented a “severe burn hazard when energized and operating at 95% of full load if
the unit is in contact with unprotected skin when the opposite surface is in contact
with a normal tabletop with two layers of bed sheet material.” Id. He noted that
standard practice in the United States is that hot water delivery is limited to 60E
Celsius. Id. at 4.

6

Second, Johnson concluded that when the adapter has no free airflow at both the
top and bottom portions of the unit, it presents an extreme hazard. Id. The
temperatures reached as high as 77E Celsius

which could cause severe burns after

a few minutes. Id. Johnson then used a chart used in a British safety standard
regarding temperature limits for hot surfaces. Id. He explained that an object that is
74E Celsius is safe for four seconds; 70E Celsius for ten seconds; and 48E Celsius for ten
minutes. Id. Based on this chart, Johnson concluded that if the adapter was 58.5E
Celsius, it could burn a normal adult’s skin within ten minutes. Id.
Third, Johnson concluded that the burns suffered by Ferraro was consistent with
how anyone might use the power adapter. Id. He explained that the adapter lacked any
markings that warned that the adapter should be used in a way that all surfaces are
uncovered and free air could flow all around it. Id. Johnson also explained that it is
common practice for consumers to use laptop computers in bed or on a couch, and that
a user may easily fall asleep during use. Id. at 5.
Fourth, Johnson suggested that the 6-foot long power cord be shortened, in order
to reduce the likelihood of a user coming into physical contact with the adapter. Id. A
shorter cord would also reduce the chances of the adapter being subject to restricted
airflow. Id. Johnson suggested that the cord connecting to the laptop could be
lengthened, to make up for the shortened cord that connects to the wall outlet. Id. He
noted that Kensington, an independent power supply manufacturer, makes power
adapters with this design. Id.

7

C.

Dr. Robert Cucin

Dr. Cucin is a plastic surgeon who is board certified in general surgery and
plastic surgery. R. 106, Exh. I (Cucin Dep. at 9). Although he does not specialize in a
specific area of plastic surgery, he does remedial work for burn victims. Id. at 9 10.
Cucin testified that skin begins to burn after it has been placed for fifty minutes on a
surface that is 50E Celsius. Id. at 134. He also testified that some burns that occur
when the victim is sleeping do not involve the victim being under the influence of drugs
(and thus less responsive to pain). Id. at 137. He specifically cited examples of victims
who were burned on sleeping pads. Id. at 137. Cucin also indicated that many people
consume alcohol or take medications that would affect their pain sensitivity or
withdrawal instinct. Id. at 138. Cucin also testified that sometimes, people will
incorporate “pain into their dreams and may not wake up from it right away.” Id. at
139.
D.

Dr. Raphael Lee

Dr. Raphael Lee is a professor at the University of Chicago who is a board
certified surgeon specializing in plastic surgery and burn care. R. 104 ¶ 12; R. 106,
Exh. G (Lee Dep. at 4). Lee testified in his deposition that a person, under normal
physiological circumstances, would very quickly withdraw their skin from the heat at
issue in this case. R.85, Exh. F at 12. He further testified that a skin temperature of
46E Celsius is associated with severe pain and a temperature of 52E Celsius is
associated with a second-degree burn injury. Id. ¶ 13.

8

Lee explained that he ran a test with an exemplar power adapter and a
“phantom” human arm to simulate the thermal behavior of human skin and the
subcutaneous tissue. Id. ¶ 14. (The phantom arm was comprised of a gel to mimic the
thermal behavior of skin. The gel heats more rapidly than a real human forearm,
which (from HP’s perspective) made the test more conservative in how much time it
would take for the power adapter to become painfully hot. R. 85, Exh. F at 7-8.) Lee
placed the phantom arm on the power adapter to mimic Ferraro’s forearm on the power
adapter and raised the temperature to 79E Celsius in order to simulate the worst case
scenario. R. 85 ¶ 14. Lee observed that when the phantom arm was placed in contact
with the adapter casing, it took 7½ minutes for the arm surface to reach 46E Celsius.
R. 85, Exh. F at 12.
As a result of the experiment, Lee drew four conclusions. First, by the time the
surface temperature reached 46E Celsius, the person would have felt severe pain. Id.
Second, under normal physiological conditions, contact with the adapter at 79E Celsius
would cause a person to feel tremendous pain within one minute. Id. Third, normal
involuntary spinal reflexes would cause withdrawal of the skin from the source of the
pain in a matter of seconds. Id. Fourth, Plaintiff Ferraro would have felt severe pain
within 5 minutes or less and would have received a deep burn injury to her skin after
10 minutes or more. Id. According to Lee, given how the spinal reflex causes a person
to withdraw within seconds of feeling such intense heat, the power adapter was
unlikely to cause severe burns under normal physiological conditions. Id.

9

E.

Don Galler

Don Galler is an electrical engineer retained by HP to examine the adapter to
see if it was defective. R. 85, Exh. D. Galler explained, in his report, that the relevant
standard for the HP power adapter was UL/IEC (Underwriter’s Laboratory /
International Electrotechnical Commission) 60950. Id. at 2. HP has placed a UL/IEC
60950 logo on the adapter because it meets an international standard for safety. The
standard dictates that the “maximum allowable temperature” at which the “external
surfaces of equipment [may] be touched” is 95E Celsius. Id.
Galler tested the adapter by charging a dead battery on a laptop. When he
covered the adapter with a piece of cloth, the adapter reached a high temperature of
80E Celsius. Id. Because it never rose above 95E Celsius, Galler concluded, the adapter
met the UL/IEC 60950 standard. Galler also presented the UL safety standards for
several other products and notes that they range from 85E Celsius to 100E Celsius. Id.
From these high temperatures, Galler inferred that the UL does not expect that these
products will be in continuous contact with a person’s body. Id.
Galler also rebutted Johnson’s testimony that the British standard for the
maximum hot-water temperature should set the maximum temperature of a plastic
power adapter. First, Galler explained, the “specific heat” of water is over three times
greater than the “specific heat” of plastic. Id. at 2-3. That is, water holds more than 3
times the energy (assuming same temperature and mass) as plastic, and thus it is
easier to be burned by water than the plastic housing of the adapter. Id. at 3. Second,

10

heat transfer between a solid and liquid (skin and water) is more efficient than heat
transfer between two solids (skin and plastic). Id. Thus, it is easier to receive a burn
from water at a lower temperature than a solid at that same temperature. Id.
Accordingly, Galler opined that “[t]he standard cited by Mr. Johnson does not apply
because the underlying physics are different.” Id.
F.

Raina Shah

Ms. Shah is a Human Factors Engineer with Applied Safety and Ergonomics,
Inc., R. 85 ¶ 11, an expert witness and consulting firm. She is also a Certified Product
Safety Manager and a Certified Professional Ergonomist. R. 85, Exh. E at 11.
According to Shah, HP was not required to warn users about the heat produced by the
adapter. R. 85 ¶ 11. She noted that the UL/IEC standards recognizes a need for
warnings “under certain circumstances, but not for this type of product.” Id. at 6.
Shah compiled a list of laptops made by other manufacturers and noted that
most manufacturers did not include any warnings about heat. Id. at 6 7. Shah also
explained that even if the adapter were to be surrounded on all sides, it would not
reach temperatures that could cause burns immediately on contact it would still take
at least several minutes of continuous contact. Id. at 8. Therefore, a person would have
to maintain contact with the adapter continuously, for several minutes, in order to
sustain a third-degree burn. Id. She explained four reasons why such continuous
contact is unlikely to occur. Id.

11

First, the adapter was designed in a way that it should be placed on a flat
surface, like a floor or a desk. Id. Second, the adapter is unlike a heating pad or heated
blanket because it is rectangular. She explained that a person “could not be expected
to knowingly sustain continuous contact with the adapter.” Id. Third, even if a person
inadvertently came into contact with a hot adapter, they would immediately cease
contact “upon experiencing the discomfort or pain that would precede a third degree
burn.” Id. And fourth, there is a lack of history of severe burns associated with the HP
laptop power adapter. Id. Based on these factors, Shah reported that there was no need
to include a warning regarding the heat generated by the adapter. Id.
VI.
A.

Strict Liability

To succeed on a strict products liability claim, the plaintiff must establish five
elements: “(1) a condition of the product as a result of manufacturing or design, (2) that
made the product unreasonably dangerous, (3) and that existed at the time the product
left the defendant's control, and (4) an injury to the plaintiff, (5) that was proximately
caused by the condition.” Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 345 (Ill.
2008). The plaintiff has the burden of proof for each element. Id. Here, HP does not
dispute elements 1, 3, and 4, and instead focuses on Ferraro’s assertions that the AC
adapter was unreasonably dangerous and was the proximate cause of Ferraro’s
injuries.

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1.

Unreasonably Dangerous

A product is unreasonably dangerous if the danger is due to (1) a manufacturing
defect, (2) a design defect, or (3) a failure to warn consumers of a danger posed by the
product of which the average consumer would not already be aware. Salerno v.
Innovative Surveillance Technology, Inc., 932 N.E.2d 101, 108 (Ill. App. Ct. 2010)
(citing Mikolajczyk, 901 N.E.2d 329). Ferraro does not make a manufacturing defect
claim but instead bases her claim on a design defect and on a failure to warn. To
demonstrate a design defect, Ferraro may take one of two approaches: the consumerexpectations test or the risk-utility test. Sobczak v. General Motors Corp., 871 N.E.2d
82, 92 (Ill. App. Ct. 2007).
a.

Consumer Expectations

Under the consumer expectations test, a product is unreasonably dangerous
when it is “dangerous to an extent beyond that which would be contemplated by the
ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.” Sobczak, 871 N.E.2d at 92. Ferraro argues that
no consumer would expect that any component of a new laptop computer, including the
power adapter, would heat up to a temperature that would cause blisters and seconddegree burns. In describing this argument, Ferraro’s response brief suffers from a lack
of specificity. Here is how the response puts the argument in the 3 times it is
mentioned, and each time there is no citation to evidence that might provide more
specifics:

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No consumer would expect that any component of a brand new laptop computer
would heat up so intensely as to cause blistering and second and third degree
burns. R. 103 at 4.
No ordinary consumer would expect to receive severe burns from an AC adapter,
as discussed previously. R. 103 at 7.
An ordinary consumer would have no expectation that the AC adapter would
cause significant burns. R. 103 at 9.
Nor did Ferraro submit any additional statements of disputed material facts, as she
was required to under Local Rule 56(b)(3)(C), if she wished to present additional
evidence beyond what was contained in her responses, see R. 104, 105 (Ferraro’s Local
Rule (b)(3)(B) response and a supplement), to HP’s statement of facts. Rather than
compel the opposing party and the Court to root around (although the Court did do
that) Ferraro’s en masse filing of exhibits, R. 106, Ferraro should not be allowed to scan
and upload all her evidence onto the docket without specifying precisely what she relies
on in responding to HP’s summary judgment motion. Ferraro’s response brief
unfortunately makes arguments at a very high level of generality.
Ferraro most likely is arguing that an ordinary consumer would not expect that
the adapter would cause a burn under any set of conditions

including if the user

maintains contact with the adapter at 50E Celsius for around 50 minutes, which could
cause a second-degree burn. See Cucin Dep. at 134-36. But that argument does not fit
the consumer expectations theory of liability. Under that approach, Ferraro must show
(or, at the summary judgment stage, must show that a reasonable factfinder could find)
that the adapter “failed to perform as safely as an ordinary consumer would expect
when used in an intended or reasonably foreseeable manner.” Lamkin v. Towner, 563
14

N.E.2d 449, 457 (Ill. 1990) (emphasis in original).3 In Lamkin, the Illinois Supreme
Court held that the maker and retailer of a window screen were not liable, under the
consumer expectations test, for failing to prevent a person from falling through the
screen. Id. at 457-58. The Illinois Supreme Court reasoned that even though perhaps
a screen could sometimes prevent a fall, that prevention was not the use for which it
was intended or a use that was “foreseeabl[y] similar” to the intended use. Id. at 458;
see also Mikolajczyk, 901 N.E.2d at 336 (“The danger arose only when the window
screen did not do something it was not designed to do.”) Here, Ferraro might be
arguing that it is reasonably foreseeable that a laptop user might fall asleep while
using the computer, and thereby maintain contact with the adapter for a prolonged
time, enough to cause a burn. But that is not the intended use of a power adapter
(powering the laptop and charging its battery), nor a use that is foreseeably similar
to its intended use.4
Perhaps Ferraro is making the more limited argument that an ordinary
consumer would expect that the power adapter would not get so hot that it would
instantaneously cause a burn. That version of Ferraro’s argument is important because
if Ferraro had admissible evidence that the adapter, even when properly ventilated,
3

Other recent cases have affirmed the grant of summary judgment in products liability
cases. See Henry v. Panasonic, 917 N.E.2d 1086, 1093 (Ill. App. Ct. 2009); Salerno v.
Innovative Surveillance Technology, 932 N.E.2d 101, 111 (Ill. App. Ct. 2010).
4

Ferraro’s expert, Dr. Robert Cucin, tried to draw an analogy between the power
adapter and heating pads. But no reasonable factfinder could rely on that analogy. Heating
pads are designed for extended physical contact with the pad. R. 85, Exh. E (Raina Shah
Report) at 7. In contrast, the power adapter is designed to rest on a flat surface, not on a
person’s skin.

15

could get so hot that a person could instantly

with no chance to withdraw contact

get burned by touching it, then she likely would have survived summary judgment and
been entitled to have a jury decide whether the adapter was unreasonably dangerous.
But Ferraro does not point to evidence that supports that argument. The only specific
temperature that she mentions in her response brief is 80E Celsius. R. 103 at 5
(“According to Robert Cucin, M.D., a plastic surgeon retained by plaintiff, it was well
known in the scientific community at the time the computer and AC adapter were put
into the stream of commerce that a temperature of 80 degrees would produce second
degree burns to human skin. Exh. I at 134.”) The cited deposition testimony does not
support the proposition that an 80E Celsius plastic adapter would instantly cause a
burn; indeed, the cited testimony does not mention that temperature at all. See R. 106,
Exh. I (Cucin Dep.) at 134. Other pages of testimony do mention 80E Celsius as a
temperature that would produce a burn, R. 106, Exh. I (Cucin Dep.) at 125, 135, but
there is no testimony that the burn would be instantaneous. Most significantly, the
expert whom Ferraro cites, Dr. Robert Cucin, admitted that he could not testify that
the burn would be instantaneous:
Q:

All right. I just want to make sure that I’m clear that at this point you
cannot point to any literature or studies that you say that this adapter,
transformer, 80 degrees, if she touches it, she can get an instantaneous
burn?

A:

No, I can’t because I don’t know anything about the adapter.

16

R. 106, Exh. I (Cucin Dep.) at 126. That concession is fatal to Ferraro’s attempt to
proceed on the otherwise viable theory that an ordinary consumer would not expect an
instantaneous burn from the adapter.5
On top of that concession by Ferraro’s expert, HP presented the report and
testimony of Dr. Raphael Lee, who opined that under “normal physiological
conditions,” a person’s withdrawal reflexes would cause that person to immediately
(within seconds) pull away from a power adapter at a temperature of 79E Celsius. R.
85, Exh. F at 12. Lee further testified that a person, even if asleep, would not lie there
and suffer an irreversible burn injury without waking up under normal physiological
circumstances. R. 106, Exh. G at 121-23, 125, 160-61. In other words, sleep might
cause some delay in the withdrawal reflex, but would not delay it to the point of “a
damaging level of injury.” R. 106, Exh. G. at 121, id. at 122. Ferraro presented nothing
to rebut this evidence.
It is worth making clear, however, that the Court is not holding that Ferraro
was, as HP argues, under the influence of a painkiller at the time of the injury. It is

5

As described above, another of Ferraro’s experts, Nathaniel Johnson, tried to rely on
the British standard for the maximum hot-water temperature used in households as the
maximum temperature of a plastic power adapter. But Johnson did not know the author of the
article from which he learned of the British standard, nor could he provide any information
about the standard. R. 105 ¶¶ 25-27. And (as also explained above) HP’s expert, Don Galler,
explained that water holds more than 3 times the energy (assuming same temperature and
mass) as plastic, and thus it is easier to be burned by water than a plastic adapter. Moreover,
heat transfer between a solid and liquid (skin and water) is more efficient than heat transfer
between two solids (skin and plastic), and that too makes it easier to receive a burn from water
than plastic at the same temperature. Additionally, Johnson is an electrical engineer, and
conceded that a doctor is in the best position to test the time it takes to cause a burn. R. 105
¶ 24.

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true that Ferraro did have a prescription for painkillers during the time period of the
injury. R. 104 ¶ 6. HP insists that, at her deposition, Ferraro was non-committal about
whether she took pain killers on the night of the incident. R. 85 ¶ 7. Ferraro denies
that she was non-committal and insists that she has always stated that she did not
take any pain killers that night, R. 104 at 4, as shown by this transcript excerpt:
Q:

Were you on Vicodin the night of the incident?

A:

No.

Q:

How do you know?

A:

Because when I take it, I take it right before I get into bed because
it kind of makes you sleepy.

Q:

What about on a night like the night of the incident when you don’t
actually go to bed but you fall asleep?

A:

No. I wouldn’t have taken it because I would have to had to get up
and walk in my bedroom and get it.

Q:

Do you recall walking into your bedroom at any time?

A:

No.

Q:

Do you recall not walking into your bedroom?

A:

Yes. I did not go into my bedroom.

Q:

So a toxicology report from the night of the incident would not
reflect you had Vicodin in your system?

A:

I [sic] would depend. I know they are in your system for a while.
I’m not really sure, but it could have.

Q:

When was the last time you took Vicodin before the incident?

A:

I don’t recall.

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Q:

Was it within 24 hours?

A:

I don’t know. I don’t recall.

Q:

Is it possible?

A:

Anything is possible.

Q:

Was it within 12 hours?

A:

I don’t recall.

Q:

So it’s possible that you took Vicodin within 12 hours leading up to
the incident?

A:

Again, anything is possible.

R. 85, Exh. A (Ferraro Dep. at 79 80).
Reading the deposition testimony in context demonstrates that Ferraro was firm
in denying using painkillers on the night in question. She twice flat-out denied using
Vicodin during that night. She even testified as to her practice of taking Vicodin only
when she goes to bed in her bedroom (remember that the injury took place on her
couch). So Ferraro did not, as HP argues, profess a “lack of recollection as to the use
of pain-killers” on the night in question. R. 84 at 7. To be sure, Ferraro allowed that
“anything is possible,” when asked whether it was “possible” that she had taken
Vicodin in the past 12 to 24 hours. But “anything is possible”6 is hardly the type of

6

“Anything is possible” is literally true, but Ferraro’s concession of that principle does
not mean that she conceded that the possibility actually occurred. Cf. United States v. Ytem,
255 F.3d 394, 397 (7th Cir. 2001) (“Anything is possible; there are no metaphysical certainties
accessible to human reason . . . .”) (emphasis in original); United States v. Davis, 48 F.3d 277,
279 n.1 (7th Cir. 1995) (“anything is possible in this strange and wonderful world”); United
States v. Nagib, 44 F.3d 619, 625 (7th Cir. 1995) (“Anything is possible. The moon may be
made out of green cheese after all.”) (emphasis in original).

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cross-examination admission that establishes Ferraro had taken Vicodin that night,
especially where the facts must be viewed in the light most favorable to her at this
stage in the litigation.7 Notwithstanding the jury question on this particular issue,
however, for the reasons described above, HP is entitled to summary judgment on the
consumer expectations liability-theory because no reasonable jury could find that the
power adapter was unreasonably dangerous for its intended (or foreseeably similar)
use.
b.

Risk-Utility Test

Even if a plaintiff cannot establish that the product was unreasonably
dangerous under the consumer expectations test, she can still prevail under the riskutility test.8 Calles v. Scripto-Tokai Corp., 864 N.E.2d 249, 256 (Ill. 2007). “Under the
risk-utility test, a plaintiff must demonstrate that a design defect exists by presenting

7

HP also argues that the testimony of Ferraro’s doctor provides unrebuttable evidence
that Ferraro’s physiology was abnormal at the time of the incident. R. 108 at 6. Dr.
Chandrarekha Kaza testified that he had referred Ferraro to a pain clinic because she had
been using painkillers for a very long time. R. 85, Exh. B (Kaza Dep. at 67). That is not the
equivalent of testimony that her physiology was so abnormal that Ferraro must have been on
Vicodin when she was burned. Nor does Kaza’s testimony establish that Ferraro took any
painkillers on the night in question. And when asked whether a person on painkillers could
open up a wound and fail to wake up, Dr. Kaza responded that it “[d]epends on how many a
person takes.” Id. at 68.
8

The parties disagree over whether proximate cause is a factor in the risk-utility test.
The confusion likely stems from ambiguity in prior Illinois state court decisions. Some courts
explain that the risk-utility test requires an analysis of proximate cause. E.g., Lamkin, 563
N.E.2d at 457 (“A plaintiff may demonstrate that a product is defective in design . . . in one
of two ways: (1) [the consumer expectations test] or (2) by introducing evidence that the
product's design proximately caused his injury and the defendant fails to prove that on balance
the benefits of the challenged design outweigh the risk of danger inherent in such
designs.”)(emphasis added). Other courts do not discuss proximate cause with respect to the
risk utility test. E.g., Duffy v. Togher, 887 N.E.2d 535, 547 (Ill. App. Ct. 2008).

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evidence that the risk of danger inherent in the design of the product outweighs the
benefits of the design.” Sobczak v. General Motors Corp., 871 N.E.2d 82, 92 (Ill. App.
Ct. 2007) (citing Lamkin v. Towner, 563 N.E.2d 449 (Ill. 1990)). Illinois courts consider
a broad range of factors, including “(1) the magnitude and probability of the foreseeable
risks of harm, (2) the instructions and warnings accompanying the product, (3) the
nature and strength of consumer expectations regarding the product, including
expectations arising from product portrayal and marketing, [and] (4) the likely effects
of the alternative design on production costs.” Mikolajczyk, 901 N.E.2d at 352 (citing
Restatement (Third) of Torts: Products Liability § 2, Comment f, at 23 (1998)); Duffy
v. Togher, 887 N.E.2d 535, 547 (Ill. App. Ct. 2008).
Ferraro argues that the adapter presented an unambiguously foreseeable danger
because it was a severe burn hazard. R.103 at 7. HP counters by making two
arguments. First, it argues that the adapter met the relevant regulatory standards. R.
84 at 8. Second, it argues that to the extent the adapter was dangerous because it gets
hot, that danger is obvious to the ordinary consumer. Id. at 7. Consumers are well
aware that a device that relies on powering a laptop through electricity would get hot.
Id. In fact, Ferraro’s 13-year old daughter testified that, “on the night of the incident,
she used the power adapter, felt it was warm, and told [Ferraro] about it.” R. 85 ¶ 8.
Q:

Did you use the power
warm or hot or . . . .

did you find that the power cord was

A:

I found that it was hot when I would touch it . . .

21

Q:

Okay. Did you tell your mom how hot it was when you
touched it?

after you

A:

I had told her it was hot but I didn’t really think it was a big deal
that it was hot.

Q:

So before the incident, you told her it was hot. What did she say in
return?

A:

She said that all of them got hot, because I guess I hadn’t said how
hot it had gotten. She just figured that it was regular.

R.85, Exh. C (A.M.9 Dep. 15:15 24; 16:5 14). According to Ferraro’s daughter, Ferraro
herself acknowledged that power adapters get hot.10
The foreseeability factors weigh in favor of HP. As discussed above, the
magnitude of the danger was not severe because the evidence established that the
adapter would not cause an instantaneous burn and that, under normal physiological
conditions, a person’s withdrawal reflex would cause the person to pull away from a hot
adapter almost immediately, preventing any serious burns. With regard to
foreseeability, Ferraro presents the testimony of HP employee Steven Ortmann, who
testified that HP had received complaints about the power adapter temperature in the
past. R. 103 at 4-5. But the complaints were that the adapters were simply too warm,

9

For privacy purposes, Federal Rule of Civil Procedure 5.2(a)(3) requires redaction of
a minor’s name into the form of initials only.
10

Ferraro’s counterargument is that A.M. was talking about the cord, not the plastic
power adapter itself. R. 103 at 6. After reviewing the deposition transcript, it is true that A.M.
said the “cord” was hot. R. 85, Exh. C at 11. But viewed in context, the reference to the “cord”
meant the power adapter. Indeed, A.M. was asked this clarifying question, “when we’re talking
about it got hot, are we talking about the – kind of the adapter brick part?,” to which she
answered, “Yes.” R. 85, Exh. C at 28. Repeatedly, A.M. answered questions about the “adapter”
as the item that got hot. R. 85, Exh. C at 28, 29, 30, 32. Furthermore, the item that “got hot”
was described as the “black box,” which describes the power adapter. R. 85, Exh. C at 16-17.

22

not that they caused any bodily harm or severe burns. In fact, there was no history of
severe burns associated with the HP power adapter. R. 85, Exh. E at 8.
Ferraro also presents four different ways that HP could have chosen to design
the power adapter so that it would be safer. Poczynok testified that there are four
design alternatives: (1) housing the transformer inside the laptop; (2) the adapter could
include a cooling device, such as a fan; (3) the adapter could include a heat shield; and
(4) the plastic box that housed the transformer could be enlarged to allow more airflow
inside the adapter. R. 103 at 7-8. But Ferraro did not present any evidence discussing
the feasibility of any of these alternatives. Worse, one of Ferraro’s other expert
witnesses

Nathan Johnson

testified that adding a fan or a heat shield was not

feasible. Johnson Dep. at 125-26. He also testified that putting the transformer in the
laptop would not be practical. Id. at 126-28.
As another alternative design, Johnson proposed shortening the 6-foot long cord
that connected the adapter to the wall outlet. R. 85 ¶ 28. He based his opinion on a
power adapter manufactured by a company named Kensington. Id. According to
Johnson, a shorter cord would prevent a power adapter from being placed on the user’s
lap. Johnson Dep. at 119. But Johnson did not provide any details on the design or
testing of a power adapter with a shorter cord. Moreover, the Kensington adapter is
itself not UL approved. R. 85 ¶ 28. The only evidence that Johnson cites is that other
computer manufacturers have used short cords. That alone is not enough to show that
an alternative design is feasible. See Calles, 864 N.E.2d at 264.

23

In sum, none of the risk-utility factors weigh in Ferraro’s favor: not the
magnitude and probability of the foreseeable risk, not the need for instructions and
warnings (see below), not the consumer expectations of the product (see above), and not
the feasability of alternative designs. Accordingly, the Court concludes that no
reasonable jury could find for Ferraro (who bears the burden of proof) under the riskutility test.
2.

Failure to Warn

Ferraro also pursues a failure-to-warn claim. Generally, a duty to warn exists
when there is unequal knowledge and the defendant has reason to know that harm
might occur to the consumer if no warning is given. McColgan v. Environmental
Control Systems, Inc., 571 N.E.2d 815, 818 (Ill. App. Ct. 1991). The warning’s purpose
is to inform the consumer about a danger that she is not aware of, thus enabling her
to take appropriate measures to protect herself. Id. However, “[n]o duty to warn arises
where the risk of harm is apparent to the foreseeable user, regardless of any superior
knowledge on the part of the manufacturer.” Sollami v. Eaton, 772 N.E.2d 215, 221 (Ill.
2002).
The parties do not dispute that there were no warnings or instructions about a
burn hazard anywhere on the laptop, power adapter, or instructions. Ferraro argues
that HP had “a wealth of information available to it regarding the heat generated by
its computers and the effect of heat on human skin.” R. 103 at 9. An ordinary
consumer, Ferraro contends, would have no expectation that the adapter could cause

24

severe skin burns. Id. In support of this argument, Ferraro cites Poczynok’s deposition
testimony:
Q:

Should they also have known about the temperatures at which
their product can burn human beings before putting it into the
stream of commerce?

A:

Yes, I believe they should have.

Q:

If you put those two things together, assuming that they had
investigated that, isn’t that evidence also of whether or not HP
should have been aware of this problem?

A:

Yes.

Poczynok Dep. at 164.
As discussed above, it is true that the power adapter could reach temperatures
that could cause burns

but only if contact was prolonged or if something was wrong

with a person’s withdrawal reflex. And, as Raina Shah testified, there was no history
of burns caused by the power adapter; the only consumer complaints were that the
power adapter got too warm, but no burns had been reported. No reasonable factfinder
could conclude that HP had special knowledge of the adapter’s propensity to burn
consumers.
Ferraro also fails to show, even at the summary judgment stage, that the
(eventual or abnormal) burn danger was non-obvious. Even Ferraro’s 13-year old
daughter was aware that the adapter could get hot, and warned Ferraro that it was
hot. A.M. testified that Ferraro herself said that all power adapters “got hot.” A.M.
Dep. at 15 16. Ferraro does not deny making that statement to her daughter. Instead,
Ferraro argues that she was not aware that the adapter could cause severe burns. But
25

an ordinary consumer would have known that prolonged or abnormal contact with a
hot power adapter would eventually cause a burn. Because Ferraro has not met her
burden of producing evidence that HP had unequal knowledge of the harm or that the
danger was non-obvious, she has failed to demonstrate that HP had a duty to warn.11
B.

Implied Warranty of Merchantability

Ferraro’s remaining claim is for breach of the implied warranty of
merchantability. To succeed on such a claim, “a plaintiff must establish (1) a sale of
goods, (2) that the seller of the goods is a merchant with respect to those goods, and (3)
that the goods were not of merchantable quality.” Maldonado v. Creative Woodworking
Concepts, Inc., 796 N.E.2d 662, 666 (Ill. App. Ct. 2003). HP argues that the claim fails
because it requires a finding that the product was defective. R. 84 at 12 (citing State
Farm Fire & Casualty Co. v. Miller Electric Co., 562 N.E.2d 589, 595 (Ill. App. Ct.
1990)).
Ferraro concedes that, according to State Farm, a plaintiff show a product defect.
But she argues that there is a split in the Illinois Appellate Courts on this issue. R. 103
at 12. Ferraro argues that Malawy v. Richards Manufacturing holds that
demonstrating a product defect is not required to prove an implied-warranty claim. 501
N.E.2d 376, 383 (Ill. App. Ct. 1986). Ferraro does not present an actual argument as
to why Malawy is, or should be, the controlling authority.

11

In light of Ferraro’s inability to meet the elements of the strict liability and failure to
warn claims, the Court need not address the element of proximate cause.

26

In any event, even if a product defect is not an element of an implied-warranty
claim, Ferraro cannot succeed on her specific implied-warranty claim. The claim
requires a showing that the goods were not of merchantable quality. A product that is
not of merchantable quality is one that is unfit for the ordinary purposes for which the
goods are used. Maldonado, 796 N.E.2d at 666. Here, a reasonable jury could not find
the adapter was unfit for its ordinary purpose. The power adapter’s purposes are to
provide power to the laptop and to charge the laptop battery. Ferraro does not allege,
let alone provide evidence, that HP’s power adapter was unfit in fulfilling that purpose.
She cannot succeed on a claim for breach of the implied warranty of merchantability.
V.
Because no reasonable jury could find for Ferraro, Hewlett Packard’s motion for
summary judgment [R.84] is granted in its entirety.

ENTERED:

Honorable Edmond E. Chang
United States District Judge

DATE: February 6, 2012

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