Khader v. Samsung Electronics America, Inc. et al

Filing 170

MEMORANDUM Opinion and Order: Because Plaintiff provides no expert testimony to support his claims of design defect under a theory of strict product liability or negligence nor provides any expert testimony or admissible evidence that Defendants' products caused his seizure, the Court grants Defendants' motions for summary judgment 152 , 156 . Civil case terminated. Signed by the Honorable Sharon Johnson Coleman on 11/26/2024. Mailed notice. (ym)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
KHAJA M. M. KHADER,
Plaintiff,
v.
SAMSUNG ELECTRONICS AMERICA,
INC., et al.,
Defendant.

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Case No. 21-cv-04632
Judge Sharon Johnson Coleman

MEMORANDUM OPINION AND ORDER
Plaintiff Khaja M. M. Khader (“Plaintiff”) brings his complaint for strict product liability and
negligence against Defendants Samsung Electronics America, Inc. (“SEA”) and Microsoft
Corporation (“Microsoft”) (collectively “Defendants”). In his complaint, Plaintiff alleges that he
suffered a seizure after using a Samsung HMD Odyssey+ virtual reality headset equipped with
Microsoft’s Windows Mixed Reality operating system platform due to a design defect in the product.
Defendants each filed a motion for summary judgment pursuant to Federal Rule of Civil Procedure
56(a). For the following reasons, the Court grants Defendants’ motions.
Background
Before establishing the facts as set forth by the parties, the Court notes that Plaintiff failed to
provide a response to either Microsoft’s or SEA’s Local Rule 56.1 Statement of Facts. (Dkt. 160.)
This is the case even though both parties instructed Plaintiff on how to respond to their respective
motions for summary judgment in accordance with Local Rule 56.2. (Dkt. 155, 159.) “When a party
fails to comply with the local rule requiring a response to a statement of undisputed material facts, the
court may rely on the opposing party’s statement to the extent that it is supported by citations to
relevant evidence in the record.” FTC v. Bay Area Business Council, Inc., 423 F.3d 627, 634 (7th Cir.2005).

It does not matter whether the party is pro se; the party still must comply. Coleman v. Goodwill Indus. of
Southeastern Wis., Inc., 423 Fed. Appx. 642, 643 (7th Cir. 2011) (“Though courts are solicitous of pro
se litigants, they may nonetheless require strict compliance with local rules.”). Because Plaintiff failed
to file a response to either Microsoft’s or SEA’s Local Rule 56.1 statement of facts, the Court credits
Defendants’ uncontroverted version of the facts to the extent that it is supported by evidence in the
record. (Dkt. 153, 157.)
On September 13, 2019, Plaintiff used a Samsung HMD Odyssey+ virtual reality headset
equipped with the Windows Mixed Reality operating system to play three virtual reality games. (Dkt.
153, ¶ 2.) The next day, while visiting the Lincoln Park Zoo in Chicago, IL, Plaintiff suffered a seizure.
(Id. at ¶ 1.) Microsoft did not develop, design, manufacture, sell or distribute the Samsung Odyssey+
virtual reality headset, Id. at ¶ 4, nor did it develop, design, manufacture, sell or distribute the video
games Plaintiff played. (Id. at ¶ 5–7.) While Samsung’s role as it relates to the virtual reality headset
was to bring the product to market in the United States, the manufacturer of the headset was a separate
entity, Samsung Electronics Co., Ltd. (Dkt. 157, ¶¶ 5–6.) By their own affidavits, at the time of the
incident, SEA had never received any information or had any knowledge that the headset caused
seizures, Id. at ¶ 7, nor had Microsoft received any report of a seizure occurring from use of the
headset. (Id. at ¶ 11.) ¶
After Plaintiff filed his complaint on August 30, 2021, and after surviving two motions to
dismiss, the case proceeded to discovery. During discovery, Plaintiff testified and admitted that he
had no “technical” information about the design of the Samsung Odyssey+ virtual reality headset or
the Windows Mixed Reality operating system and that his claims were based solely on internet
searches. (Dkt. 153, ¶ 11–12.) Plaintiff also named no expert witness on the existence of a design
defect or negligent design, produced no medical evidence that he had been diagnosed with
photosensitive epilepsy, produced no medical evidence that any of the conditions he had been

diagnosed with involve seizures triggered by visual stimuli, and produced no evidence indicating that
anything he saw while using the headset was capable of triggering an epileptic seizure or the seizure
he suffered the following day. (Id. at ¶¶ 16–19).
Further, Plaintiff produced limited documents in discovery, primarily his medical records and
printouts from third-party websites. (Id. at ¶ 10.) None of the documents produced by Plaintiff
described a defect in the Windows Mixed Reality operating system; instead, the documents related to
other types of display systems, other manufacturers’ products, or visual quality issues unrelated to the
occurrence of seizures. (Id. at ¶ 15.) The only medical record which references Plaintiff’s use of the
headset is a note which documents Plaintiff’s own statements to his neurologist that were provided
weeks after the incident. (Id. at ¶ 27.) Plaintiff’s daughter, who is a dentist, also testified on his behalf,
though she is not a neurologist or an expert in epilepsy and was not offering a medical opinion on the
cause of Plaintiff’s seizure. (Dkt. 157, ¶¶ 21–23.)
After the close of discovery, Defendants brought their respective motions for summary
judgment. The Court now turns to Defendants’ motions.
Legal Standard
Summary judgment is appropriate “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). A
genuine dispute as to any material fact exists if “the evidence is such that a reasonable jury could return
a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505,
2510, 91 L. Ed. 2d 202 (1986). When determining whether a genuine dispute as to any material fact
exists, the Court must view the evidence and draw all reasonable inferences in favor of the nonmoving
party. Id. at 255; McDaniel v. Progress Rail Locomotive, Inc., 940 F.3d 360, 367 (7th Cir. 2019). The party
seeking summary judgment has the burden of establishing that there is no genuine dispute as to any
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After “a properly supported motion

for summary judgment is made, the adverse party ‘must set forth specific facts showing that there is a
genuine issue for trial.’” Anderson, 477 U.S. at 255 (citation omitted).
Discussion
Plaintiff presents two design defect claims against Defendants, one under strict product
liability and the other under negligence. Both suffer from the same fatal flaw: the lack of expert
testimony establishing that the Samsung HMD Odyssey+ virtual reality headset and the Windows
Mixed Reality operating system had a design defect that made the product “unreasonably dangerous”
or deviate from the standard of care followed by the industry.
To succeed in a strict product liability claim based on a design defect, a plaintiff must establish:
(1) a condition of the product that results from manufacturing or design; (2) the condition made the
product unreasonably dangerous; (3) the condition existed at the time the product left the defendant's
control; (4) the plaintiff suffered an injury; and (5) the injury was proximately caused by the condition.
Salerno v. Innovative Surveillance Technology, Inc., 402 Ill. App. 3d 490, 498 (2010) (citing Mikolajczyk v. Ford
Motor Co., 231 Ill. 2d 516, 543, 901 N.E.2d 329, 327 Ill. Dec. 1 (2008)). The key inquiry in this
determination is whether the allegedly defective condition made the product “unreasonably
dangerous.” Id. Similarly, to succeed under a theory of negligence, a plaintiff must provide some
evidence that the manufacturer “(1) deviated from the standard of care that other manufacturers in
the industry followed at the time that the product was designed; or (2) knew or should have known,
in the exercise of ordinary care, that the product was unreasonably dangerous and that it failed to warn
of the product’s dangerous propensity.” Id. at 501 (citing Blue v. Environmental Engineering, Inc., 215 Ill.
2d 78, 96, 828 N.E.2d 1128, 293 Ill. Dec. 630 (2005)).
For complex products, such as the virtual reality headset and operating system at issue here,
expert testimony is essential to determine whether the design of a product was unreasonably
dangerous or deviated from the standard of care. See Salerno, 402 Ill. App. 3d at 501 (“Because

products liability actions involve specialized knowledge or expertise outside of a layman’s knowledge,
the plaintiff must provide expert testimony on the standard of care and a deviation from that standard
to establish either of these propositions.”). As such, the failure to provide such testimony “regarding
any alleged design defect or dangerousness is fatal” to a plaintiff’s claim at summary judgment.
Thornton v. M7 Aerospace LP, 796 F.3d 757, 773 (7th Cir. 2015); see also Kirk v. Clark Equip. Co., 991 F.3d
865 (7th Cir. 2021) (collecting cases).
While Plaintiff states that at trial he will “provide the jury with expert testimony that can
explain how a virtual reality [device] triggers a seizure . . . and [the] long-term effects of using virtual
reality,” (Dkt. 160, ¶ 15), he has not provided any such testimony for consideration at summary
judgment. And by his own repeated admission, Plaintiff does not himself possess the expertise
necessary to evaluate the design of the virtual reality headset and operating system and instead relies
on information from the internet to support his claim. (Dkt. 153, Ex. A, pp. 141–43.) Just as “it is
not enough for a plaintiff to simply say that there was a better way to design the product without such
expert testimony,” it too is not enough for a plaintiff to simply say that a design defect exists in a
product without such expert testimony. Salerno, 402 Ill. App. 3d at 501 (citing Baltus v. Weaver Div. of
Kidde & Co., Inc., 199 Ill. App. 3d 821, 831, 145 Ill. Dec. 810, 557 N.E.2d 580 (1990)).
Failing to provide expert testimony to support his design defect allegations is not the only fatal
flaw in Plaintiff’s strict product liability and negligence claims.

Plaintiff also fails to provide

evidence—including expert testimony—establishing that his use of the Samsung HMD Odyssey+
virtual reality headset and Windows Mixed Reality operating system caused his seizure. At summary
judgment, “[c]onclusory allegations by the party opposing the motion cannot defeat the motion.”
Hedberg v. Indiana Bell Tel. Co., 47 F.3d 928, 931 (7th Cir. 1995) (“Speculation does not create a genuine
issue of fact; instead, it creates a false issue, the demolition of which is a primary goal of summary
judgment.”). And in strict product liability or negligence cases, to survive summary judgment, “a

plaintiff must point to relevant, outstanding factual issues that could show with reasonable certainty
that the product’s defect caused the injury.” Schuring v. Cottrell, Inc., 244 F. Supp. 3d 721, 735 (N.D.
Ill. 2017) (Kendall, J.).
As with the question of the design defect, here, while Plaintiff asserts that the virtual reality
headset and operating system caused his seizure, he admits that he neither has expertise in assessing
the causes of seizures nor spoke with anyone with such expertise. (Dkt. 153, Ex. A, pp. 141–49.) The
news articles and research studies that Plaintiff provides speak to the potential dangers of virtual reality
devices and platforms generally, not to the products in question, and therefore are not relevant to the
case at hand. (Dkt. 160, Ex. 2–5.) And the only medical opinion and record Plaintiff provides are
from his daughter, who is not an expert in neurology or seizure disorders and would not testify at trial
as such, (Dkt. 157, Ex. D, pp. 15, 54–55), and an unauthenticated—and therefore inadmissible—note
from his doctor in which the doctor recounts what Plaintiff told him about the incident. (Dkt. 153,
Ex. A, pp. 81–84.) More evidence is necessary for Plaintiff’s claims to survive summary judgment;
none is provided.
Plaintiff’s search for an explanation and desire to hold someone accountable for his
unexpected seizure and difficult recovery is understandable. But “even pro se litigants must follow
rules of civil procedure.” Cady v. Sheahan, 467 F.3d 1057, 1061 (7th Cir. 2006) (citing McNeil v. United
States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993). As such, speculative and
unsupported allegations brought before federal court must be treated appropriately.
For these reasons, Plaintiff’s claims fail and summary judgment is granted for Defendants.
Conclusion
Because Plaintiff provides no expert testimony to support his claims of design defect under a
theory of strict product liability or negligence nor provides any expert testimony or admissible

evidence that Defendants’ products caused his seizure, the Court grants Defendants’ motions for
summary judgment [152], [156].
IT IS SO ORDERED.
Date: 11/26/2024
Entered: _____________________________
SHARON JOHNSON COLEMAN
United States District Judge