Walls et al v. The Rooto Corporation et al
Filing
109
MEMORANDUM AND OPINION. The Court GRANTS Defendants motion for summaryjudgment (Doc. 74). Plaintiffs claims are hereby DISMISSED WITH PREJUDICE. Signed by District Judge Travis R McDonough on 9/24/2018. (BDG, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
GEORGE K. WALLS and PREEPREM
CHAREONSLIP,
Plaintiffs,
v.
THE ROOTO CORPORATION,
Defendant.
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Case No. 1:17-cv-226
Judge Travis R. McDonough
Magistrate Judge Susan K. Lee
MEMORANDUM OPINION
Before the Court is Defendant The Rooto Corporation’s motion for summary judgment
(Doc. 74). For the reasons stated hereafter, Defendant’s motion is GRANTED.
I.
BACKGROUND1
On September 28, 2016, Plaintiff George K. Walls (“Walls”) purchased four one-gallon
bottles of Rooto Professional Drain Opener for use on a four-inch drain at a commercial
apartment building he owns.2 (Doc. 75-1, at 7, 16–18; Doc. 75-8, at 5.) Walls had used Rooto
Professional Drain Opener on nine prior occasions with no issue. (Doc. 75-1, at 3–4.) Prior to
use of the product, Walls read the instructions and label in their entirety, and he has no criticism
of the label or warnings. (Id. at 4.) Walls used two containers with no issue, and, as he was
opening the third, it splashed or “exploded” on him, burning his skin. (Id. at 19; Doc. 75-8, at 3.)
For the purposes of summary judgment, the Court will view the facts in the light most favorable
to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
1
2
It is uncontested that Walls purchased Rooto Professional Drain Opener on this date.
Walls reported to the emergency room at Parkridge Hospital, where he informed the treating
physicians both that he had been taking “Drano” off a shelf when the cap came off and it spilled
on him, and, alternatively, that “[a]cid splashed on [his] upper body and face.” (Doc. 75-6, at 7–
8, 19.) Plaintiffs3 initiated the instant products-liability action against Defendant on August 16,
2017. (Doc. 1.) Plaintiffs assert claims against Defendant for: (1) negligence; (2) breach of
implied warranty; and (3) gross negligence. (See id. at 5–9.) Defendant has moved for summary
judgment on Plaintiffs’ claims, and this motion is now ripe for the Court’s review.
II.
STANDARD OF REVIEW
Summary judgment is proper when “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). The Court views the evidence in the light most favorable to the nonmoving party and
makes all reasonable inferences in favor of the nonmoving party. Matsushita Elec. Indus. Co.,
Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Nat’l Satellite Sports, Inc. v. Eliadis Inc.,
253 F.3d 900, 907 (6th Cir. 2001).
The moving party bears the burden of demonstrating that there is no genuine dispute as to
any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Leary v. Daeschner, 349
F.3d 888, 897 (6th Cir. 2003). The moving party may meet this burden either by affirmatively
producing evidence establishing that there is no genuine issue of material fact or by pointing out
the absence of support in the record for the nonmoving party’s case. Celotex, 477 U.S. at 325.
Once the movant has discharged this burden, the nonmoving party can no longer rest upon the
allegations in the pleadings; rather, it must point to specific facts supported by evidence in the
3
Plaintiff Walls’s wife, Preeprem Chareonslip, asserts a claim only for loss of consortium. (See
Doc. 1, at 9.)
2
record demonstrating that there is a genuine issue for trial. Chao v. Hall Holding Co., Inc., 285
F.3d 415, 424 (6th Cir. 2002).
At summary judgment, the Court may not weigh the evidence; its role is limited to
determining whether the record contains sufficient evidence from which a jury could reasonably
find for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248–49 (1986). A mere
scintilla of evidence is not enough; the Court must determine whether a fair-minded jury could
return a verdict in favor of the nonmovant based on the record. Id. at 251–52; Lansing Dairy,
Inc. v. Espy, 39 F.3d 1339, 1347 (6th Cir. 1994). If not, the Court must grant summary
judgment. Celotex, 477 U.S. at 323.
III.
ANALYSIS
Each of Plaintiffs’ claims falls under the Tennessee Product Liability Act (“TPLA”),
Tennessee Code Annotated § 29-28-101 et seq.4 The TPLA provides, in relevant part that “[a]
manufacturer . . . of a product shall not be liable for any injury to a person or property caused by
the product unless the product is determined to be in a defective condition or unreasonably
dangerous at the time it left the control of the manufacturer or seller.” Tenn. Code Ann. § 29-
4
The TPLA defines “product liability action” broadly to include
all actions brought for or on account of personal injury, death or property damage
caused by or resulting from the manufacture, construction, design, formula,
preparation, assembly, testing, service, warning, instruction, marketing, packaging
or labeling of any product. “Product liability action” includes, but is not limited
to, all actions based upon the following theories: strict liability in tort; negligence;
breach of warranty, express or implied; breach of or failure to discharge a duty
to warn or instruct, whether negligent, or innocent; misrepresentation,
concealment, or nondisclosure, whether negligent, or innocent; or under any other
substantive legal theory in tort or contract whatsoever[.]
Tenn. Code Ann. § 29-28-102(6) (emphasis added). Accordingly, Plaintiffs’ claims are properly
considered under the TPLA. Additionally, the parties do not dispute that the TPLA is the
applicable governing law in this case. (See Docs. 76, 77.)
3
28-105(a) (emphasis added). Thus, to establish a prima facie products-liability claim under
Tennessee law, a plaintiff must show that: (1) “the product was defective and/or unreasonably
dangerous”; (2) “the defect existed at the time the product left the manufacturer’s control”; and
(3) “the plaintiff’s injury was proximately caused by the defective product.” Sigler v. Am.
Honda Motor Co., 532 F.3d 469, 483 (6th Cir. 2008). In other words, unless the Rooto
Professional Drain Opener was in a defective condition or unreasonably dangerous when it left
the control of Defendant, there is no liability pursuant to the TPLA. See King v. Danek Med.,
Inc., 37 S.W.3d 429, 435 (Tenn. Ct. App. 2000). Defendant moves for summary judgment on
three grounds, arguing that Plaintiffs cannot establish that Rooto Professional Drain Opener: (1)
was in a defective condition at the time it left Defendant’s control; (2) was unreasonably
dangerous at the time it left Defendant’s control; or (3) caused Walls’s injuries. (Doc. 76, at 7–
21.)
A. Defective Condition
Defendant argues that Plaintiffs cannot establish that Rooto Professional Drain Opener
was in a defective condition at the time it left Defendant’s control. (Doc. 76, at 19–21.) The
TPLA defines “defective condition” as “a condition of a product that renders it unsafe for normal
or anticipatable handling and consumption.” Tenn. Code Ann. § 29-28-102.
In Tennessee, Plaintiffs bear the burden to show there was something wrong with the
product when it left Defendant’s control. Fulton v. Pfizer Hosp. Prod. Grp., Inc., 872 S.W.2d
908, 911 (Tenn. Ct. App. 1993). “As a general rule, an injury of itself is not proof of a defect
and thereby raises no presumption of defectiveness.” Id. (citing Gates v. Ford Motor Co., 494
F.2d 458, 459 (10th Cir. 1974); Mullins v. Seaboard Coastline Ry. Co., 517 S.W.2d 198, 201
(Tenn. Ct. App. 1974)). Moreover, a manufacturer is not an insurer of a product that it is
4
“accident proof, or incapable of causing injury.” Kerley v. Stanley Works, 553 S.W.2d 80, 84
(Tenn. Ct. App. 1977). “Likewise, the failure or malfunction of the [product], without more, will
not make the defendant liable.” King, 37 S.W.3d at 435 (citing Harwell v. American Medical
Sys., Inc., 803 F. Supp. 1287, 1298 (M.D. Tenn. 1992)). A plaintiff must show that there was
something wrong with the product and must trace the plaintiff’s injury to some specific defect in
the construction or design of the product. Irion v. Sun Lighting, Inc., No.
M200200766COAR3CV, 2004 WL 746823, at *4 (Tenn. Ct. App. Apr. 7, 2004).
Defendant contends that “the closest the Plaintiffs can come to . . . proving that the
product is defective is the ‘assumption’ of Plaintiffs’ purported expert that the product somehow
became contaminated.” (Doc. 76, at 20.) Plaintiffs argue that a test conducted by Technical
Laboratories5 “shows that the sulfuric acid content [of Rooto Professional Drain Opener] is 87.48
% . . . less than recommended and testified to by Joon Moon, owner of [Defendant].” (Doc. 77,
at 8.) Although not entirely clear, construing Plaintiffs’ argument in the light most favorable to
Plaintiffs, the Court interprets it to contend that, because test results show Rooto Professional
Drain Opener contained less than the “recommended” amount of sulfuric acid, it must have been
defective in some way, perhaps by being mixed with a different chemical. This speculation is
unconvincing. Defendant points out that the testimony of Joon Moon relied on by Plaintiffs was
taken in a completely unrelated case and concerned the concentration of sulfuric acid in Rooto
Professional Drain Opener in 2011—at least five years prior to the accident at issue. (Doc. 80, at
4; Doc. 75-12, at 2.) Plaintiffs have offered no proof regarding the “recommended”
concentration of sulfuric acid in Rooto Professional Drain Opener at the time of the accident.
5
Defendant points out that Plaintiffs’ own expert testified that the test results were not
scientifically sufficient for him to opine that the product was only 87% sulfuric acid. (Doc. 79-1,
at 30.)
5
Additionally, although Plaintiffs’ expert, John Magee,6 testified that he had a “hypothesis or
assumption” that there was “a contamination problem . . . [o]r something else was introduced to
[the drain opener],” he could not identify when the contamination occurred or what the
contaminating element was. (Doc. 75-3, at 26.) Although Magee hypothesized that Defendant
used a single manufacturing line for multiple products, he admitted he had no proof that
Defendant’s manufacturing lines were not properly cleaned. (Id. at 14.) Moreover, Defendant
has introduced uncontradicted evidence to disprove this theory. Defendant’s general manager,
Richard Lapanowski, stated in his affidavit that:
Rooto Professional Drain Opener is processed through a separate production line
dedicated to that product. Other products manufactured by the Defendant,
including ammonia and sodium hydroxide (lye), are processed through entirely
different and separate production lines. In fact, the production line for ammonia
is physically located approximately 300 feet from the production line for sulfuric
acid.
(Doc. 75-4, at 2.) Additionally, Defendant has produced evidence that in 2016 and prior years,
Defendant “shipped hundreds of cartons of one-gallon bottles of Rooto Professional Drain
Opener . . . [and] has not received any reports of contamination . . . .” (Doc. 75-4, at 2–3.)
Plaintiffs fail to offer proof that creates a genuine issue of material fact as to whether
Defendant’s product was contaminated.
6
Defendant has also filed a Daubert motion to exclude the testimony of John Magee, arguing
that he fails to meet the expert qualifications set forth in Federal Rule of Evidence 702. (Doc.
70.) According to Defendant, Magee’s testimony:
is based upon erroneous factual assumptions, is scientifically flawed, and is not
the product of reliable application of chemistry principles. [Magee] also lacks the
educational background to offer reliable testimony to assist the trier of fact to
understand the evidence. In addition, [his] testimony . . . is influenced by
considerable bias and prejudice that the witness has against this Defendant as a
former business competitor.
(Id.)
6
Walls also testified in his deposition that the inner liner of the Rooto Professional Drain
Opener, found underneath the cap, was not affixed when he removed the cap. (Doc. 75-1, at 8–
9, 12.) However, Plaintiff has not offered any proof that the Rooto Professional Drain Opener
left the manufacturer in this condition. In fact, Plaintiffs’ expert testified that, other than the
content of sulfuric acid, he is not aware of any physical evidence that there was a defect in the
product at the time it left Defendant’s control. (Doc. 79-1, at 28.) Magee testified that he had no
physical evidence that the Rooto Professional Drain Opener leaked or that the cap was loose
while sitting on the shelf at the retailer where it was purchased, while being picked up off the
shelf by Walls, or at any time before Walls placed it in the back of his pickup truck. (Doc. 75-3,
at 27–28.) And Plaintiffs offer no evidence suggesting that the design of the seal is deficient or
might result in the seal coming loose. Finally, Walls testified that he has no criticism of the label
or warnings on the Rooto Professional Drain Opener. (Doc. 79-1, at 4.) Plaintiff has thus not
traced his injury to a specific defect in construction or design.7 “It is well established that the
actual design of the product does not have to be perfect, accident proof, or incapable of causing
injury to be considered non-defective.” Alexander v. Zamperla, No. E200901049COAR3CV,
2010 WL 3385141, at *7 (Tenn. Ct. App. Aug. 27, 2010) (internal quotation marks and citation
omitted). Accordingly, there is no genuine dispute of material fact and Plaintiffs have not
satisfied their burden to show Rooto Professional Drain Opener was in a defective condition at
the time it left Defendant’s control.
7
Although Plaintiffs appear to argue that a different type of seal “would have prevented this
accident,” (Doc. 77, at 5), as explained in more detail below, (infra III.B), a departure from the
required standard of care is not demonstrated where it is simply shown that there was a different
design which may have prevented an injury.
7
B. Unreasonably Dangerous
Defendant argues that Plaintiffs cannot establish that Rooto Professional Drain Opener is
unreasonably dangerous. A plaintiff must prove that the product was “unreasonably dangerous
at the time it left the control of the manufacturer . . . , regardless of the legal theory relied upon.”
Shoemaek v. Omniquip Int’l, Inc., 152 S.W.3d 567, 572 (Tenn. Ct. App. 2003 (quoting Fulton,
872 S.W.2d at 911)). An “unreasonably dangerous” product is one that 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, or that the product because of its dangerous
condition would not be put on the market by a reasonably prudent manufacturer
or seller, assuming that the manufacturer or seller knew of its dangerous
condition.
Tenn. Code Ann. § 29-28-102. Defendant advances two primary arguments: (1) under the
TPLA, it is entitled to a statutory presumption that its drain opener is not unreasonably
dangerous, a presumption Plaintiffs cannot overcome, and (2) its drain opener cannot be deemed
unreasonably dangerous due to Walls’s misuse. (Doc. 76, at 11–19.)
Tennessee Code Annotated § 29-28-104(a) provides, in relevant part:
Compliance by a manufacturer or seller with any federal or state statute or
administrative regulation existing at the time a product was manufactured and
prescribing standards for design, inspection, testing, manufacture, labeling,
warning or instructions for use of a product, shall raise a rebuttable presumption
that the product is not in an unreasonably dangerous condition in regard to
matters covered by these standards.
(emphasis added). Defendant argues it is entitled to this statutory presumption because it is in
compliance with all relevant statutes and regulations. (Doc. 76, at 12–14.) Specifically,
Defendant points to a laboratory analysis and report issued by the U.S. Consumer Product Safety
8
Commission (“CPSC”),8 in which CPSC approved Rooto’s Professional Drain Opener packaging
design and cautionary labeling.9 (Doc. 75-4, at 4–5.) Plaintiffs’ expert also agrees that Rooto
Professional Drain Opener complies with all relevant regulations. (Doc. 75-3, at 33–34.)
Accordingly, Defendant is entitled to the statutory presumption.
To rebut the presumption, Plaintiffs appear to argue that Rooto Professional Drain
Opener is unreasonably dangerous because a different type of seal “would have prevented this
accident.” (Doc. 77, at 5.) Specifically, Plaintiffs point to testimony by Magee identifying an
induction seal as an alternative that would have prevented the accident, regardless of whether it
was a cap failure or a commingling of chemicals that caused it. (Doc. 75-3, at 41.) Plaintiffs
also point to emails exchanged between Lapanowski and Mold-Rite Corporation as evidence that
Defendant was considering “a different type of seal” on its drain opener twenty-eight days prior
to Walls’s injury. (Id. at 37–39.)
8
The CPSC administers the Federal Hazardous Substances Act (“FHSA”), the Poison Prevention
Packaging Act (“PPPA”), and their implementing regulations at 16 C.F.R. §§ 1500 and 1700,
respectively. (Doc. 75-4, at 4.)
9
Under Federal Rule of Civil Procedure 56(c)(2), a “party may object that the material cited to
support or dispute a fact cannot be presented in a form that would be admissible in evidence.”
Plaintiffs argue that the CPSC report and analysis “does not meet the requirements of Federal
Rule of [Evidence] 901(7) . . . as it is not certified by a business record affidavit.” (Doc. 77, at
4.) Defendant responds that the affidavit of the general manager Lapanowski “has established
that the [CPSC report] was received by [Defendant] in the normal course of its business and is a
business record of the company.” (Doc. 80, at 2.) The Court agrees with Defendant. See, e.g.,
Thomas v. Harvey, 381 F. App’x 542, 546 (6th Cir. 2010) (“Finally, the documents attached to
the Cook declaration were authenticated by the Cook declaration itself under Federal Rules of
Evidence 901(a).”); United States v. Eastwood, No. 2:09-CV-168, 2017 WL 3658874, at *3
(E.D. Tenn. Aug. 2, 2017) (“Mr. Hall is . . . clearly familiar with Mr. Eastwood’s case, and his
declaration authenticates the tax transcripts for purposes of Plaintiff’s Motion for Summary
Judgment.”); Fed. R. Evid. 901(a) (“To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is.”); Fed. R. Evid. 803.
9
Even assuming an induction seal would have prevented the accident, “a departure from
the required standard of care is not demonstrated where it is simply shown that there was a
better, safer, or different design which would have averted the injury.” Kerley, 553 S.W.2d at
84. “A manufacturer is not required to incorporate the ultimate safety features in a product.”
Shoemake, 152 S.W.3d at 573. Additionally, “the absence of other accidents tends to negate any
claim that the product is dangerous.” Mohr v. DaimlerChrysler Corp., No.
W200601382COAR3CV, 2008 WL 4613584, at *5 (Tenn. Ct. App. Oct. 14, 2008). Plaintiffs
have pointed to no evidence of other accidents caused by Rooto Professional Drain Opener, and
Walls testified that he had used the product himself on nine prior occasions with no issue. (Doc.
75-1, at 3–4); see also id. (“In this case, the evidence showed that there have been millions of
minivans of this design manufactured and sold by DCC and the record does not contain evidence
of a single accident tending to show that the Caravan was not crashworthy.”). Apart from
suggesting that an induction seal would have been a better alternative, Plaintiffs have presented
no proof that Rooto Professional Drain Opener was unreasonably dangerous when it left
Defendant’s control because it violated some standard of care or quality in the industry.10 See
Shoemake, 152 S.W.3d at 573 (“Plaintiffs have offered only suggestions but have presented no
proof that [defendants] failed to employ or follow proper manufacturing procedures or that the
design of the [product] was deficient.”). In fact, to the contrary, Plaintiff’s expert agrees Rooto
Professional Drain Opener met industry standards. (Doc. 75-3, at 33–34.) Based on this
evidence, there is no genuine dispute of material fact that the drain opener was not in a defective
10
Defendant’s packaging expert, Dr. Goldman, examined the incident bottle and a second
container of Rooto Professional Drain Opener and concluded in his report, among other things,
that there is not any evidence of faulty or defective packaging. (Doc. 75-2, at 1–2.)
10
condition or unreasonably dangerous at the time it left Defendant’s control.11 Accordingly,
Defendant is entitled to summary judgment.12
IV.
CONCLUSION
For the reasons set forth above, the Court GRANTS Defendant’s motion for summary
judgment (Doc. 74). Plaintiffs’ claims are hereby DISMISSED WITH PREJUDICE.13
AN APPROPRIATE JUDGMENT WILL ENTER.
/s/ Travis R. McDonough
TRAVIS R. MCDONOUGH
UNITED STATES DISTRICT JUDGE
11
Because the Court finds there is no genuine issue of material fact as to whether the product
was unreasonably dangerous at the time it left Defendant’s control, it need not reach Defendant’s
argument that Defendant cannot be held liable if the drain opener was made unreasonably
dangerous by Walls’s abnormal use.
12
Because the Court finds there is no genuine issue of material fact as to whether the product
was defective or unreasonably dangerous when it left Defendant’s control, it need not reach the
question of causation.
13
Preeprem Chareonslip also brought a claim for loss of consortium. (See Doc. 1.) “The right to
recover for loss of consortium is independent of the spouse’s right to recover for the injuries
themselves, however, the claim ‘will always be ‘derivative’ in the sense that the injuries to his or
her spouse are an element are must be proved.’” Wiley v. Danek Med., Inc., No. 95-2542, 1999
WL 33537314, at *9 (W.D. Tenn. May 11, 1999) (quoting Swafford v. City of Chattanooga, 743
S.W.2d 174 (Tenn. Ct. App. 1987)). Because the Court granted Defendant’s motion for
summary judgment on all of Walls’s claims, Chareonslip’s claim must also fail.
11
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