Lundgren v. Matrixx Intiatives et al
Filing
75
ORDER AND MEMORANDUM DECISION granting 34 Motion for Summary Judgment; denying as moot 35 Motion for Partial Summary Judgment; denying as moot 49 Motion to Strike; denying as moot 56 Motion for Leave to Amend. Signed by Judge Tena Campbell on 6/18/13 (alt)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
KAREN D. LUNDGREN,
Plaintiff,
ORDER AND
MEMORANDUM DECISION
vs.
MATRIXX INITIATIVES, INC., et al.,
Defendants.
Case No. 1:10-cv-128
Judge Tena Campbell
I. INTRODUCTION
Karen Lundgren alleges she lost her sense of smell and much of her sense of taste after
using Zicam Cold Remedy Nasal Gel (Zicam) in 2010. She sued the various entities that own,
manufacture, or market Zicam (collectively Matrixx) for design defect, failure to warn,
negligence, and misrepresentation.
Matrixx moves for summary judgment under Federal Rule of Civil Procedure 56(c),1
arguing that Ms. Lundgren cannot prove at least one essential element in each of her claims
because she failed to designate any expert witnesses. For the reasons set forth below, the court
GRANTS Matrixx’s Motion for Summary Judgment (Docket No. 34), and this case is dismissed.
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The parties also present three other motions to the court. First, Matrixx moves for
partial summary judgment on whether punitive damages should be allowed in this case (Docket
No. 35). Because the court grants the motion for summary judgment and dismisses this case,
Matrixx’s motion for partial summary judgment is DENIED AS MOOT.
Second, Ms. Lundgren moves to strike certain references made in Matrixx’s motion for
summary judgment and partial motion for summary judgment (Docket No. 49). In arriving at its
decision today, the court has not relied upon any of the references that Ms. Lundgren disputes in
her motion to strike. So, Ms. Lundgren’s motion to strike is DENIED AS MOOT.
Finally, Ms. Lundgren moves to amend her responses to Matrixx’s motions (Docket No.
56). The court has carefully examined all of Ms. Lundgren’s filings, both her actual filings and
her proposed amended filings. The court’s decision today is unaffected by any changes proposed
by Ms. Lundgren, so her motion to amend is DENIED AS MOOT.
II. ANALYSIS2
Ms. Lundgren alleges four tort causes of action: strict liability for design defect, strict
liability for failure to warn, negligence, and misrepresentation. To recover under any of these
theories of liability, Utah law requires a plaintiff to demonstrate a causal link between the injury
complained of by the plaintiff and the defendant’s action or inaction. See Dimick v. OHC
Liquidation Trust, 157 P.3d 347, 349 (Utah. App. 2007) (“To prevail on a [design defect] claim,
a plaintiff must demonstrate . . . that the defective condition was a cause of the plaintiff’s
injuries.”); House v. Armour of Am., Inc., 929 P.2d 340, 343 (Utah 1996) (“In any failure to
warn claim, a plaintiff must show that the failure to give an adequate warning in fact caused the
injury. . . .”); Barson ex rel. Barson v. E.R. Squibb & Sons, Inc., 682 P.2d 832, 835 (Utah 1984)
(“In a [negligence] case, the plaintiff must therefore prove . . . that the conduct complained of
was the cause in fact of the injury.”); see Atkinson v. IHC Hospitals, Inc., 798 P.2d 733, 737
(Utah 1990) (noting that a defendant can be held liable for misrepresentations that cause harm to
a plaintiff); see also Restatement (Third) of Torts: Prod. Liab. § 9 (1998) (noting that the seller of
a product can be held liable for damage caused by fraudulent or negligent misrepresentations).
To prove causation in torts cases such as this one, Utah courts generally require expert
testimony in all “but the most obvious cases.” Ladd v. Bowers Trucking, Inc., 264 P.3d 752, 756
(Utah App. 2011) (quoting Fox v. Brigham Young Univ.,176 P.3d 446, 452 (Utah App. 2007)).
“Where the injury involves obscure medical factors which are beyond an ordinary lay person’s
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The parties thoroughly described the factual and procedural backgrounds of this case in
their pleadings. The court will not repeat them except when necessary to explain the Order.
Moreover, because this is a motion for summary judgment, the court views the facts in the light
most favorable to the non-movant, Ms. Lundgren.
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knowledge, necessitating speculation in making a finding, there must be expert testimony that the
[defendant’s conduct] probably caused the injury.” Id. (quoting Beard v. K–Mart Corp., 12 P.3d
1015, 1019 (Utah App. 2000)). And although causation is a question of fact that is generally
reserved for the jury, a trial court may make a legal ruling on causation if “there is no evidence to
establish a causal connection, thus leaving causation to jury speculation.” See id. at 756
(affirming a district court’s grant of summary judgment against a plaintiff because he failed to
designate any expert witnesses who could testify about causation).
To show a causal link between Zicam and her loss of smell, Ms. Lundgren relies on the
opinions of her two treating physicians, who were designated only as lay witnesses under Federal
Rule of Evidence 701; Ms. Lundgren did not designate any expert witnesses.3 That is not enough
for the injuries alleged in this case. Ms. Lundgren’s injuries involve a number of factors that are
beyond an ordinary lay person’s knowledge and expert testimony is needed to help the jury make
a determination about whether Zicam caused her loss of smell and taste. Without expert
testimony, a jury would have to rely on mere speculation and conjecture. See Ladd, 264 P.3d at
757 (“Without an expert witness designation, [plaintiff] cannot establish causation.”). As a
result, her claims must fail as a matter of law because Ms. Lundgren cannot legally show that
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Ms. Lundgren contends that she can demonstrate a causal link by relying on her two
treating physicians who diagnosed Zicam as the cause for Ms. Lundgren’s loss of smell. Ms.
Lundgren’s argument is incorrect. While it is true that a treating physician acting as a lay witness
may give “factual descriptions of his or her personal observations during treatment,” Ladd, 264
P.3d at 756, he cannot give testimony that is “based on scientific, technical, or other specialized
knowledge . . . .” Fed. R. Evid. 701(c). Any opinion given by the treating physicians of whether
Zicam caused Ms. Lundgren’s injuries is surely based on that physician’s specialized knowledge
and training, and is therefore impermissible testimony from a lay witness. See Ladd, 264 P.3d at
757.
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Zicam caused her injuries.
III. CONCLUSION
For the reasons stated above the court ORDERS the following:
•
Matrixx’s Motion for Summary Judgment (Docket No. 34) is GRANTED, and the
claims for design defect, failure to warn, negligence, and misrepresentation are
hereby DISMISSED WITH PREJUDICE;
•
Matrixx’s Motion for Partial Summary Judgment (Docket No. 35) is DENIED AS
MOOT;
•
Ms. Lundgren’s Motion to Strike (Docket No. 49) is DENIED AS MOOT;
•
Ms. Lundgren Motion to Amend (Docket No. 56) is DENIED AS MOOT.
Because no claims remain, this case is HEREBY DISMISSED. SO ORDERED this 18th
day of June, 2013.
BY THE COURT:
TENA CAMPBELL
United States District Judge
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