288 F. Supp. 3d 840 | E.D. Ill. | 2017
Norma Walker ("Plaintiff") brings this action against Wal-Mart Stores, Inc. ("Walmart"), Charles Komar & Sons, Inc. ("Komar"), and Macy's Merchandising Group, Inc. ("Macy's") (collectively "Defendants"), alleging strict liability, negligence, and breach of warranty claims related to injuries she suffered when her clothing caught fire. (R. 69, Fourth Am. Compl.) Before the Court are Defendants' motions for summary judgment as to all remaining counts against them.
RELEVANT FACTS
The following facts are undisputed unless otherwise stated. The litigation stems from a Style & Co. Sport brand jacket (the "Jacket") and a Secret Treasures brand pajama top and bottom (the "Sleepwear") that caught fire and injured Plaintiff. (R. 69, Fourth Am. Compl. ¶¶ 21-26.)
Plaintiff is an Illinois resident. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint Statement of Undisputed Material Facts [hereinafter "SOUMF"] ¶ 1.) Macy's is a New York corporation that sells, among other things, clothing, including the Jacket, which Plaintiff believes she purchased from Macy's.
Sometime in or before May 2008, Plaintiff's daughter purchased two sets of the same Secret Treasures brand sleepwear in different colors, which included the Sleepwear at issue in this case, and gave them to Plaintiff. (Id. ¶¶ 8, 12, 16-18.) The Sleepwear was made out of a blended fabric consisting of polyester and cotton. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s Statement of Additional Material Facts [hereinafter "SAMF"] ¶ 1.) From the date of purchase until January 14, 2014, Plaintiff wore the Sleepwear frequently without incident. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 23.)
Plaintiff believes that she purchased the Jacket at Macy's around Christmas in either 2012 or 2013, and she regularly wore the Jacket around the house when she was cold. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 11, 15.) The Jacket was made of an 80% cotton and 20% polyester-blend fabric. (Id. ¶ 23.) Neither the Sleepwear nor the Jacket had any labels or warnings on them related to flammability. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 50; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 46.)
On January 14, 2014, Plaintiff was cooking breakfast while wearing the Jacket and Sleepwear, and leaned over a lit gas stove to reach for a box of cereal. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 14, 25.) Plaintiff smelled something burning, looked down, and saw fire coming up from the bottom of the Jacket. (Id. ¶ 19.) The Sleepwear did not come into direct contact with the stove, but was later ignited by flames from the Jacket. (Id. ¶¶ 17, 25-27; R. 162, Pl.'s Mem. Opp'n to Walmart at 13.)
Plaintiff first tried to unzip the Jacket, but was unable to, so she went to her sink, grabbed a hose from the sink, and sprayed water at the flames, which eventually extinguished them. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 21-22.) Plaintiff suffered extensive, third-degree burns to approximately 40% of her body. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 4.) The Sleepwear and Jacket did not have any labels, warnings, or other information on them concerning their flammability although some women's robes and nightgowns have used fire safety warnings since the 1990s. (Id. ¶¶ 50, 52; R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 46, 48.)
Plaintiff's expert conducted flammability testing on the Sleepwear under a test prescribed by
*848Though the exact Jacket that Plaintiff was wearing during the incident was never located, Plaintiff's expert conducted flammability testing pursuant to the standards in
There have been no other reported incidents involving alleged burn injuries suffered by people claiming to have been wearing the same style jacket as the Jacket or any other Macy's clothing comprised of the same fabric as the Jacket. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶ 49.) With respect to the Sleepwear, neither Walmart nor Komar were aware of any complaints regarding the flammability of the Sleepwear, and both have conducted flammability testing on the Sleepwear. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 32-37.)
The parties do not dispute that most adults understand that their clothing will ignite and burn if exposed to an open flame. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 56; see also R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 53-54.) Clothing made of nylon or polyester often does not ignite and will self-extinguish or burn so slowly that it causes less injury from burns. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 46; see also R. 172, Macy's Resp. to Pl.'s SAMF ¶ 42.) Making the Sleepwear or Jacket out of polyester or nylon fabric would cost roughly the same as using cotton fabric. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 43; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 39.)
PROCEDURAL HISTORY
Plaintiff filed this action in the Circuit Court of Cook County, Illinois, on February 28, 2014, and Walmart later removed the action to this Court on the basis of diversity jurisdiction. (R. 1, Notice of Removal; R.1-1, State Court Compl.) On January 11, 2016, Plaintiff filed her fourth amended complaint, which is the operative pleading setting forth her claims. (See R. 69, Fourth Am. Compl.)
In the fourth amended complaint, Plaintiff asserts the following causes of action against Macy's, Walmart, Komar, and Rex Garments, Ltd. ("Rex"): strict products liability for defective manufacturing (Counts I, VII) and design (Counts II, VIII); strict products liability for inadequate warnings (Counts III, IX); breach of express and implied warranties (Counts IV, V, X, and XI); and negligence (Counts VI and XII). (Id. ¶¶ 27-130.) On July 13, 2016, the Court dismissed the strict liability claims against Walmart (Counts VII, VIII, and IX) pursuant to 735 ILL. COMP. STAT. 5/2-621, an Illinois statute that requires dismissal of strict products liability claims against a non-manufacturer if that party certifies that it is not the manufacturer of the product and names the manufacturer.
The remaining parties-Macy's, Walmart, and Komar-now move for summary judgment. (R. 146, Macy's Mot. for Summ. J.; R. 150, Walmart Mot. for Summ. J.; R. 153, Komar Mot. for Summ. J.) Komar and Walmart represent that on May 28, 2017, they advised Plaintiff of the basis of their motions for summary judgment, and Plaintiff agreed to withdraw her claims against them for defective manufacturing and breach of express warranty. (R. 150, Walmart Mot. for Summ. J. at 1; R. 153, Komar Mot. for Summ. J. at 1.) Walmart and Komar, therefore, move for summary judgment on the only counts that appear to be pending against them: the breach of implied warranty and negligence claims against both Walmart and Komar, and the strict products liability claims for defective design and inadequate warnings against Komar. (R. 150, Walmart Mot. for Summ. J. at 1; R. 153, Komar Mot. for Summ. J. at 1.)
Walmart argues that the Court should grant summary judgment against Plaintiff's breach of implied warranty claims because the Sleepwear was not unreasonably dangerous or unfit for its ordinary purpose of "wearing while sleeping or lounging at home." (R. 152, Walmart Mem. at 2, 3-5.) Walmart also contends that the Court should grant summary judgment on Plaintiff's negligence claims because Walmart had no duty to sell fireproof or 100% polyester or nylon adult sleepwear, and because the Sleepwear did not proximately cause Plaintiff's injuries. (Id. at 2, 6-8.) Walmart argues that it was the Jacket, not the Sleepwear, that first caught fire and caused Plaintiff's injuries. (Id. at 6-8.) Walmart claims that it satisfied its duty of care because the Sleepwear "passed the only federal flammability standard applicable, 16 [C.F.R. §] 1610." (Id. at 7.) Komar advances the same arguments as Walmart for summary judgment on Plaintiff's breach of implied warranty and negligence claims. (R. 155, Komar Mem. at 2-3, 12-15.)
Komar also maintains that the Court should grant summary judgment on Plaintiff's strict products liability claim for defective design because the Sleepwear was not unreasonably dangerous beyond the extent contemplated by an ordinary consumer, and because the utility of cotton or cotton-blend sleepwear outweighs any risk that it will catch fire and injure the person wearing it. (Id. at 4-10.) Komar argues that Plaintiff's strict products liability claim for inadequate warnings should suffer a similar fate, because Komar did not have a duty to warn Plaintiff of the Sleepwear's flammability, and, even if Komar did have a duty to warn, Plaintiff fails to advance any evidence that a warning on the Sleepwear would have prevented her injuries. (Id. at 11-12.)
Plaintiff contends that Walmart's and Komar's arguments miss the mark, because this case concerns not only the aspects of the Sleepwear's design that caused it to ignite, but also aspects of the design that caused the Sleepwear to ignite so easily and produce the fire's intensity and rapid spread. (R. 162, Pl.'s Mem. Opp'n to Walmart at 1-2; see also R. 163, Pl.'s Mem. Opp'n to Komar at 1-2.) Plaintiff also argues that Walmart's and Komar's reliance on federal regulations, including
*850Macy's, like Walmart and Komar, represents that Plaintiff agreed to withdraw the breach of express warranty and strict liability for defective manufacturing claims against it. (R. 149, Macy's Mem. at 1 n.1.) Therefore, like Komar, Macy's does not address those claims and moves for summary judgment only on Plaintiff's strict liability claims for defective design and inadequate warnings, as well as Plaintiff's breach of implied warranty and negligence claims. (See
As to Plaintiff's negligence claims, Macy's argues that it did not deviate from any standard of care that other manufacturers followed at the time the Jacket was designed, and that Plaintiff has not put forth any evidence that Macy's knew or should have known that the Jacket was unreasonably dangerous. (See
In response, Plaintiff argues that, like Walmart and Komar, Macy's fails to address characteristics of the Jacket's design that caused the fire's ease of ignition, intensity, and rapid spread, and that Macy's compliance with federal regulations, including
LEGAL STANDARD
Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment 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). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett ,
Under Rule 56, the movant has the initial burden of establishing that a trial is not necessary. Sterk v. Redbox Automated Retail, LLC ,
In deciding the motions, the Court cannot weigh conflicting evidence, assess the credibility of the witnesses, or determine the ultimate truth of the matter, as these are functions of the jury. Anderson v. Liberty Lobby, Inc. ,
ANALYSIS
I. Use of Expert Testimony to Defeat Summary Judgment
As a preliminary matter, Defendants object to Plaintiff's use of expert testimony to oppose summary judgment. (See, e.g. , R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 5, 7-11, 16, 20, 23-24, 31, 40, 42, 48-49, 51-52, 59; R. 172, Macy's Resp. to Pl.'s SAMF at 1-3.)
"A district court's decision to exclude expert testimony is governed by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court in *852Daubert v. Merrell Dow Pharm., Inc.,
"A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc. ,
Walmart and Komar do not challenge any expert testimony based on the qualifications of Plaintiff's expert witnesses, but instead focus on the reliability of their methodologies, and whether portions of their testimony are relevant to Defendants' motions for summary judgment. (See R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 7, 9-11, 20, 33-36, 40, 42, 48-49, 51-52 (challenging expert testimony as "irrelevant," "speculative," "without foundation," "not the product of reliable principles or methods," or not supported by citations to scientific evidence, facts, or data); R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 10-11, 24, 27, 31-32, 36, 38, 44, 48.) " Daubert sets forth a non-exhaustive list of guideposts to consult in assessing the reliability of expert testimony: (1) whether the scientific theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication; and (3) whether the theory has been generally accepted in the relevant scientific, technical, or professional community." Am. Honda Motor Co. v. Allen ,
A. Steven Spivak's Expert Opinion
Plaintiff engaged Stephen Spivak to opine on the Jacket's and Sleepwear's *853safety with respect to flammability. (R. 161-3, Spivak Report ¶ 117; R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 48.) As relevant to Defendants' motions for summary judgment, Defendants object to Spivak's opinions that: (1) the fabrics used to make the Sleepwear and Jacket are made of materials that promote easy ignition, rapid, intense burning, and rapid flame spread, (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 42; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 38); (2) several thousands of injuries have occurred as the result of clothing catching fire, (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 10-11; R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 10-11); (3) the standards of flammability and testing for flammability set forth in
The Court concludes that the first four opinions are relevant to the present motions for summary judgment, as they are relevant to the broad considerations the Court must weigh in its analysis under the risk-utility test, which requires the Court to weigh the following factors in assessing a defective-design claim: "(1) the availability and feasibility of alternate designs at the time of the product's manufacture; or (2) that the design used did not conform to the design standards in the industry, design guidelines provided by an authoritative voluntary organization, or design criteria set by legislation or governmental regulation." Jablonski v. Ford Motor Co. ,
The Court also finds that Spivak's opinions satisfy Rule 702's requirements for reliability. Spivak has decades of experience in the fire protection engineering field and has published numerous articles on the subject, many of which have been published in peer-reviewed, scientific journals. (R. 161-3, Spivak Aff. ¶¶ 6-14.) His expert opinions are based on methods that have been tested and subjected to peer review and publication, and the record is lacking of any indication that Spivak's methodology is not generally accepted in the relevant scientific, technical, or professional *854community. See Allen ,
Spivak's opinion concerning the fabrics that make the Sleepwear and Jacket unsafe and his opinion that the
Finally, his opinions that thousands of injuries have occurred from clothing catching fire, and that the public generally does not know or appreciate the ease of ignition, rapid flame spread, and engulfing fire that can result from the ignition of cotton-polyester blend clothing, are supported by research and experience. (E.g.,
B. Kenneth Diller's Expert Opinion
Plaintiff also engaged Kenneth Diller to offer expert opinion on the cause of Plaintiff's injuries. (R. 164-4, Diller Aff. ¶ 2; R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 49.) Defendants object to Diller's opinion that once the Jacket and Sleepwear ignited, they burned at a rate and intensity that injured Plaintiff without affording her an opportunity to stop the burning. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 40; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 36.) Defendants argue that this opinion is speculative and "without foundation." (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 40.)
The Court finds that Plaintiff may use Diller's testimony to oppose summary judgment. Diller has over 45 years of professional experience in biomedical engineering and specializes in the area of burn injuries. (R. 161-4, Diller Aff. ¶¶ 11-12.) He has published over 280 research papers in medical, scientific, and engineering journals. (Id. ¶ 7.) His opinion is based upon his broad experience and research. (Id. ¶ 4.) His report uses mathematical formulas from other scientific research and data from testing conducted by Plaintiff's flammability testing expert, Elizabeth Buc, to conclude that ten seconds of exposure to fire produced from cotton-polyester clothing would cause nearly complete necrosis, or death, of Plaintiff's skin tissue. (R. 161-4, Diller Report at 5.) Because Buc's experiments showed that the Sleepwear and Jacket were on fire for 13 seconds or more, Diller concludes that the fire caused Plaintiff's injuries. (Id. at 4-6.) To support his opinion, Diller also points to research finding that ignition of one's clothing occurs *855before that person feels pain. (Id. at 4.) The Court, therefore, permits Plaintiff to oppose summary judgment using Diller's affidavit because it provides enough research, facts, and a process of reasoning leading to Diller's conclusion that Plaintiff would have suffered third degree burns or serious injury without having an opportunity to extinguish the fire. See Berg ,
II. Strict Products Liability
The Court now turns to the strict liability claims against, Macy's, Walmart, and Komar. "Under Illinois law, the elements of a claim of strict liability based on a defect in the product are: (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. ,
Plaintiff brings strict liability claims against Macy's and Komar based on theories of defective design and inadequate warnings, and Macy's and Komar move for summary judgment on those claims. (R. 149, Macy's Mem. at 1; R. 153, Komar Mot. for Summ. J. at 1.) The Court concludes that Plaintiff's strict liability claims against Komar fail for lack of proximate cause.
*856Proximate cause encompasses two requirements: cause-in-fact and legal cause. Malen v. MTD Prod., Inc. ,
To establish legal cause, Plaintiff must show that "the ultimate injury was reasonably foreseeable," which "is satisfied by proof that a reasonable person could foresee that his conduct could lead to the injury complained of." Rivera v. Garcia ,
Plaintiff has not presented any evidence that the Sleepwear, as opposed to the Jacket, was the legal cause of her injuries. Plaintiff's only argument is that the Sleepwear caused her injuries because it "increased the available fuel load with a material known to burn at an accelerated rate and temperature making the fire more difficult to extinguish, with a vertical flame spread rate faster than that of the Macy's jacket." (R. 163, Pl.'s Mem. Opp'n to Komar at 15 (emphasis in original).) The mere fact that a material has a dangerous or defective condition, however, is not evidence of causation that creates a genuine issue of material fact. Vertin v. Mau ,
Plaintiff concedes that the Sleepwear was not ignited by the stove, but by the Jacket. (R. 162, Pl.'s Mem. Opp'n to Walmart at 13.) Plaintiff's experts do not opine that it was foreseeable that another article of clothing set aflame could, in turn, set fire to the Sleepwear and injure Plaintiff. Only Spivak opines on the foreseeability of the incident that led to Plaintiff's injuries, and he posits that "foreseeable behaviors such as cooking and garment use around kitchen ranges are well known for decades." (R. 161-3, Spivak Report at 4-5.) Any injury caused by the Sleepwear, however, was not the result of cooking or coming into contact with a flame from kitchen appliances; rather, it was the result of another garment being set on fire. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 17, 25-27.) Plaintiff *857does not put forth any evidence showing that a reasonable person could foresee that another article of clothing would set fire to the Sleepwear, as opposed to the foreseeability of the Sleepwear or other clothing being set on fire by an open flame on a stove.
Additionally, under Illinois law, if the tortious conduct "charged does nothing more than furnish a condition by ... which the injury is made possible, and that condition causes an injury by the subsequent, independent act of a third person, the creation of the condition is not the proximate cause of the injury." Abrams v. City of Chicago ,
The only strict liability claims that remain, then, are those against Macy's. The Court addresses Plaintiff's defective design and inadequate warning claims against Macy's separately below.
A. Defective Design
Macy's argues that summary judgment is proper on Plaintiff's strict liability, design-defect claims because Plaintiff has not put forth evidence showing that the Jacket is unreasonably dangerous based on the expectations of an ordinary consumer or an analysis of the Jacket's risk weighed against its utility. (See R. 149, Macy's Mem. at 2-12.) Thus, the Court addresses whether there is any genuine issue of material fact as to whether the Jacket was unreasonably dangerous by virtue of a defective design.
In a design-defect case, "[t]o establish that a product is unreasonably dangerous, and thus defective, a plaintiff may proceed under two alternative methods of proof, known as the 'consumer-expectation test' and the 'risk-utility test.' " Show ,
Because this case is at the summary judgment stage and the parties have not definitively chosen whether they will proceed at trial under a consumer-expectation or risk-utility theory of design defect, the Court will analyze Plaintiff's strict liability claims under both theories.
1. Consumer-Expectation Test
Under the consumer-expectation test, a plaintiff may prove that a product's design was unreasonably dangerous by way of evidence that "the product failed to perform as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner." Calles ,
Plaintiff argues that the ordinary consumer would not appreciate that the Jacket was made of fabrics that rendered it more combustible and dangerous than jackets made of other materials. (R. 163, Pl.'s Mem. Opp'n to Komar at 1-2, 7.) Plaintiff has produced expert testimony supporting this argument. (See R. 161-3, Spivak Aff. ¶ 94; R. 161-3, Spivak Report ¶¶ 37, 64 100.) Plaintiff has also produced evidence showing that the Jacket ignited quickly and burned rapidly and intensely, and that it was foreseeable that the Jacket might catch fire as a result of one's ordinary use of the Jacket near open flames in the kitchen. (R. 161-2, Buc Aff. ¶¶ 27, 32 (noting that, in flammability testing, the Jacket ignited in three seconds and spread flames ten inches in seven seconds); R. 161-3, Spivak Aff. ¶¶ 33-34.) This evidence creates a genuine issue of material fact as to whether the Jacket performed as an ordinary consumer would expect when exposed to or placed near a flame in the kitchen while cooking, which a reasonable jury could find is foreseeable and within the ordinary use of the Jacket. See Calles ,
*860Macy's argues that Plaintiff had knowledge that the Jacket would catch fire if exposed to an open flame, and that an ordinary consumer would likewise expect the Jacket to catch fire if exposed to an open flame. (R. 149, Macy's Mem. at 3-6.) Therefore, Macy's maintains there was nothing unexpected about the way the Jacket performed. (Id. ) The question under the consumer-expectation test in this case, however, is not whether the Jacket could catch fire, a danger that Plaintiff agrees is generally well-known, (164, Resp. to Macy's SOUMF ¶ 53), but whether an ordinary consumer would expect that the Jacket would so easily catch fire and result in a type of burning that would almost guarantee serious injuries. (R. 165, Pl.'s Mem. Opp'n to Macy's at 1-2; see also R. 148-4, Macy's 30(b(6) Dep. Tr. at 94:5-10 (stating that clothing flammability safety standards consider "burn times and what someone may do if their clothing did catch on fire giving them enough time to either take it off or stop, drop, and roll, whatever the case may be").) Plaintiff has advanced evidence showing that the ordinary consumer would not be aware of the Jacket's claimed danger to more easily provoke an intense, rapid-spreading fire that is difficult to extinguish when coming into contact or close contact with a stove, a foreseeable use, (R. 161-3, Spivak Aff. ¶¶ 33-34, 94; R. 161-3, Spivak Report ¶¶ 37, 64 100; R. 161-4, Diller Aff. ¶ 29.) Thus, there is a genuine dispute of fact concerning the ordinary consumer's expectations of the Jacket, "and a jury is uniquely equipped to decide such an issue." Newman ,
In addition, unlike the authority Macy's relies upon, Plaintiff has presented evidence that consumers would not know about the Jacket's ease of ignition and burning characteristics, and that these characteristics make the Jacket more dangerous than jackets made from other fabrics,
Next, Macy's contends that Plaintiff cannot argue that the Jacket failed to perform as expected because she had no preconceived notions or expectations about the Jacket's fabric. (R. 149, Macy's Mem. at 4.) Plaintiff, however, disputes this factual assertion and creates an issue of fact on this point. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶ 14.) Additionally, the Court notes that Plaintiff's subjective notions or expectations are not relevant under the consumer-expectation test, which looks only to the "average, normal, or ordinary expectations of the reasonable person." Calles ,
Finally, Macy's argues that the Jacket's compliance with the flammability standards set forth in
The Court finds Macy's cited legal authority inapplicable to this case. In those cases, the court granted summary judgment because the plaintiff produced insufficient evidence to create an issue of fact. Cf. Simien ,
2. Risk-Utility Test
As noted above, while the Court has already concluded that Plaintiff may proceed to trial under the consumer-expectation test, the Court will still analyze Plaintiff's design-defect claims under the risk-utility test because the Court cannot predict what evidence the parties will put forward at trial, and the Court must nonetheless apply a risk-utility analysis to test the sufficiency of Plaintiff's negligence claims, discussed in further detail below. See Jablonski ,
Design-defect cases that have survived summary judgment on a risk-utility theory are typically those in which the plaintiff has provided some evidence to create a material issue of fact for at least one of the above risk-utility factors. For example, In Hasan v. Cottrell, Inc. , No.
By contrast, cases that have not survived summary judgment are those in which all risk-utility factors weighed in the defendant's favor or the plaintiff failed to present any evidence to create a factual dispute as to any of the risk-utility factors. For example, in Gutterman v. Target Corp. ,
This case is more akin to the former group of cases that survived summary judgment. Turning to the risk-utility factors in this case, Plaintiff has presented evidence of an alternative design and its feasibility. Plaintiff has proposed alternative designs of the Jacket and Sleepwear that were available to Macy's at the time the Jacket was manufactured. (R. 161-3, Spivak Aff. ¶¶ 81, 84.) Plaintiff's expert opines that these alternative designs for the Jacket would have cost roughly the same, not ignited as easily, burned more slowly, and created a fire that would have been more easily extinguished. (Id. ¶¶ 81-85, 89.) With respect to promulgated design standards, Plaintiff does not provide much, if any, evidence that Macy's failed to abide by government regulations, industry standards, or criteria set by authoritative voluntary associations, and instead points to the fact that the Jacket failed
Plaintiff has also presented evidence concerning the likelihood the Jacket would cause injury, as well as the probable seriousness of the injury and the manufacturer's ability to eliminate the unsafe character of the Jacket without impairing its usefulness or making it too expensive to maintain its utility. Plaintiff has provided evidence showing that thousands of persons die each year or seek emergency room treatment due to their clothing catching fire, (R.161-3, Spivak Report ¶¶ 98-100), and that the Jacket is designed in a way to almost guarantee serious injury if it catches fire, (see R. 161-4, Diller *864Aff. ¶ 29). Plaintiff also points to evidence showing that the Jacket could have been designed differently at roughly the same cost to eliminate its unsafe character. (R. 161-3, Spivak Aff. ¶¶ 81-82.) Macy's raises yet another factor the Court may consider in the risk-utility test-Plaintiff's anticipated awareness of the dangers inherent in the Jacket. See Calles ,
Balancing all of the factors above, the Court is unable to conclude that no reasonable jury could find in Plaintiff's favor. A reasonable jury could attribute substantial weight to Plaintiff's expert testimony and find that the Jacket, as it is designed, poses an unreasonable risk of harm to consumers that they are not fully aware of, and which can be eliminated by an alternative design at little cost to avoid what Plaintiff's experts claim, is a very high probability of serious injury in the event the Jacket catches fire. In short, Plaintiff has created disputes of fact that are material to several of the factors under the risk-utility test, and the Court determines, after balancing the factors, that Plaintiff has produced enough evidence to survive summary judgment. See, e.g., Hasan ,
Macy's argues that the risk-utility factors weigh in its favor to the extent Plaintiff's expert advocates an alternative design of the Jacket that is entirely made of polyester or nylon, which Macy's argues deprives consumers of choosing cotton-polyester blend clothing for its comfort and style. (R. 171, Macy's Reply at 6-9; R. 174, Komar's Reply at 5-6.) In support, Macy's points to Plaintiff's expert testimony in which he states that consumers should be able to choose cotton-blend clothing. (R. 148-5, Spivak Dep. Tr. at 113-14, 126-27.) Plaintiff's expert, however, does not advocate removing cotton or cotton-blend clothing entirely from the market, but only some cotton-blend products, like the Jacket, which pose latent dangers of flammability that most consumers do not appreciate. (R. 148-5, Spivak Dep. Tr. at 118 (opining that he proposes eliminating only some cotton-blend fabrics that are "full cover, wide, loose and flowing" from the marketplace), 126-27 (opining that not all cotton-blend clothing is unreasonably dangerous, and that "[i]f you were wearing a pair of cotton/polyester leotards, the likelihood of ignition, given the propensity of the garment, the fit of the fabric, it's very low risk, very low likelihood"); R. 161-3, Spivak Report ¶ 64 (opining that the clothing at issue "combines easily ignitable cotton blend fabrics, plus a resultant scaffolding effect contributed by the combination of a charring component cotton fiber plus a melting component polyester fiber; intimately blended together in yam and fabric").) These are disputed factual issues that must be resolved at trial, not on a motion for summary judgment where the Court cannot weigh conflicting evidence or assess the credibility of witnesses. See Anderson , 477 U.S. at 255,
Macy's argument merely highlights factual disputes in this case that militate against summary judgment in its favor. While consumers may want to choose the Jacket for its style and comfort, this consideration does not give Macy's license to design a product that is unreasonably dangerous, as the risk-utility test looks at whether "the risk of danger inherent in the design of the product outweighs the benefits of the design." Ferraro ,
B. Inadequate Warnings
Macy's also requests summary judgment on Plaintiff's strict liability, inadequate warning claims. (R. 149, at 13-14.) "A failure to warn of a product's known danger or instruct on the proper use of the product may also result in strict liability." Salerno v. Innovative Surveillance Tech., Inc. ,
Macy's argues that the Court should grant summary judgment against Plaintiff on her failure-to-warn claims because it had no duty to warn Plaintiff of an obvious *866danger such as fire, and because even if it had a duty to warn, Plaintiff has advanced no evidence that she would have read and heeded any warning. (R. 149, Macy's Mem. at 13-14; R. 155, Komar Mem. at 14.)
The Court agrees with Macy's, and need not discuss whether there was a duty to warn with respect to Plaintiff's strict liability, failure-to-warn claim. Even if there was, Plaintiff points to no record evidence showing that she would have read and heeded any warning regarding the Jacket's flammability. Instead, Plaintiff only argues that Macy's has "adduced no evidence" to support its conclusion that Plaintiff would not have read and heeded any warning. (R. 165, Pl.'s Mem. Opp'n to Macy's at 16.) This argument, however, misstates the parties' burdens on summary judgment.
While Defendants have the burden to inform the Court why a trial is not necessary, they may discharge that burden by pointing out "that there is an absence of evidence to support [Plaintiff]'s case." Sterk ,
Plaintiff argues that there is a "heeding presumption" for failure-to-warn claims, in other words, that, at this stage in the litigation, because Macy's provided no warnings on its product, the Court must presume that Plaintiff would have heeded any warning Macy's provided. (R. 163, Pl.'s Mem. Opp'n to Komar at 14; R. 165, Pl.'s Mem. Opp'n to Macy's at 16.) "The issue of whether Illinois applies the heeding presumption has not been clearly addressed by the Illinois Supreme Court." In re Depakote , No. 14-CV-847-NJR-SCW,
*867Lambert v. B.P. Prod. N. Am., Inc. , No. CIV. 04-347-GPM,
Even if the law required a "heeding presumption," Plaintiff has not provided any "real evidence of what additional or alternative warnings were needed," because she proposes no specific additional or alternative warnings that, if followed, could have prevented her injuries. See Runge v. Stanley Fastening Sys., L.P. , No. 4:09-CV-00130-TWP,
Plaintiff's expert, Spivak, does opine that a "fire safety" label on the packaging of the garment and garment itself are necessary to inform consumers, generally, of the garment's flammability risk. (R. 161-3, Spivak Aff. ¶¶ 91-93.) He also provides examples of other warnings that have been used in the past on garments sold by L.L. Bean, Macy's, and Nordstrom. (Id. ¶¶ 99-105.) He does not, however, propose any warning for the Jacket, (R. 148-5, Spivak Dep. Tr. at 131-32), opine that any specific warnings could have prevented Plaintiff's injury, or opine that any of these warnings can prevent injuries generally. See Bourelle v. Crown Equip. Corp. ,
III. Implied Warranties
Although the exact implied warranty theories Plaintiff is pursuing are not specifically delineated in her fourth amended complaint, she appears to claim that Defendants breached both the implied warranty of merchantability and the implied warranty of fitness for a particular purpose. (See R. 69, Fourth Am. Compl. ¶¶ 64-70, 116-22 (alleging, among other things, Defendants "knew the use for which the clothing was intended and impliedly warranted the clothing to be of merchantable quality and safe for such use"); R. 162, Pl.'s Mem. Opp'n to Walmart at 9-12; R. 163, Pl.'s Mem. Opp'n to Komar at 14-15; R. 165, Pl.'s Mem. Opp'n to Macy's at 18-19.)
Plaintiff's implied warranty of fitness for a particular purpose claims fail out of the gate. "No warranty for a particular purpose is created if the intended use is no different from the ordinary use of the product." Rosenstern v. Allergan, Inc. ,
That leaves Plaintiff's claims for breach of the implied warranty of merchantability against Defendants. To prevail on these claims, 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." Ferraro v. Hewlett-Packard Corp. , No. 08 CV 03638,
*869Walmart and Komar again challenge proximate cause as to the implied warranty claims, arguing that they cannot be held liable because it is undisputed that the Sleepwear never came into contact with the stove. (R. 152, Walmart Mem. at 3-5; R. 155, Komar Mem. at 12-13.) For the same reasons discussed above regarding Plaintiff's strict liability, design-defect claims against Walmart and Komar, the Court will grant summary judgment against Plaintiff on the implied warranty of merchantability claims against Walmart and Komar. There is no evidence that the Sleepwear proximately caused Plaintiff's injuries, as discussed above. See Wheeler v. Sunbelt Tool Co. ,
Thus, the remaining claim for breach of the implied warranty of merchantability is against Macy's. In its motion for summary judgment, Macy's only argues that Plaintiff has not provided enough evidence to prove that the Jacket was unfit for its intended purpose. (R. 149, Macy's Mem. at 18-19.) For the reasons detailed above in the Court's analysis on Plaintiff's strict liability claims, the implied warranty of merchantability claim against Macy's, however, may proceed to trial as Plaintiff has put forth enough evidence to show that the Jacket was unfit for its intended purpose. See MacNeil Auto. Prod. Ltd. v. Cannon Auto. Ltd. , No. 08 CV 0139,
IV. Negligence
For her negligence claims against Defendants, Plaintiff must establish "the existence of a duty, a breach of that duty, an injury that was proximately caused by that breach, and damages." Jablonski ,
Turning to the only remaining negligence claims-those asserted against Macy's-Plaintiff claims that Macy's was negligent for: (1) failing to properly design the clothing; (2) failing to properly manufacture the clothing; (3) failing to properly test the clothing; (4) failing to provide adequate warnings, instructions, and labeling for the clothing; (5) utilizing dangerous material and fabric; and (6) failing to perform appropriate post-market surveillance of the clothing. (R. 69, Fourth Am. Compl. ¶¶ 73-74.) With respect to Macy's alleged failure to properly manufacture the clothing, Plaintiff has not submitted any evidence that the manufacturing of the Jacket, as opposed to its design, was defective in any way. Instead, Plaintiff appears to have relinquished her claims based on a theory of defective manufacturing. (See R. 149, Macy's Mem. at 1 n.1.)
Nor do the sixth grounds for negligence-that Macy's failed to perform appropriate post-market surveillance-provide any grounds for a viable negligence claim. Plaintiff argues that Jablonski creates a duty to conduct post-market surveillance of a product if the product was defective at the time it was sold. (R. Pl.'s Mem. Opp'n to Macy's at 18.) Jablonski , however, compels the opposite conclusion. That case addressed the duty to issue post-sale warnings or undertake post-sale fixes of a product that is defective, and is critical of any such duty. See Jablonski ,
Thus, the first, third, fourth, and fifth grounds of negligence against Macy's remain. The first, third, and fifth *871claimed grounds for negligence, however, are the same. Macy's use of dangerous fabric and its failure to properly test the Jacket's flammability
Finally, Plaintiff's fourth ground for negligence is that Macy's negligently failed to warn Plaintiff of the Jacket's defects. (R. 69, Fourth Am. Compl. ¶ 73(d).) In response, Macy's only argument
CONCLUSION
For the foregoing reasons, the Court GRANTS Walmart's and Komar's motions for summary judgment (R. 150 and R. 153, respectively), and GRANTS in part and DENIES in part Macy's motion for summary judgment (R. 146) as set forth in this opinion. In accordance with footnote one of this opinion, Plaintiff's withdrawn claims for express warranty and defective manufacturing are hereby dismissed against all defendants. Since there are no remaining claims against Walmart and Komar, they are dismissed as parties in this lawsuit.
The remaining parties are DIRECTED to appear for a status hearing on January 9, 2018, at 9:45 a.m. for the purpose of setting a firm trial date for the remaining claims in this lawsuit. The remaining parties are requested to exhaust all settlement possibilities prior to the hearing.
Defendants represent that Plaintiff has agreed to withdraw the claims against Defendants that are not subject to the pending motions for summary judgment. (See R. 149, Macy's Mem. at 1 n.1; R. 150, Walmart Mot. for Summ. J. at 1; R. 153, Komar Mot. for Summ. J. at 1.) Since Plaintiff did not dispute this assertion in her response nor provide any facts or argument in support of these claims, they will be dismissed by this Court.
Macy's maintains that Plaintiff returned the Jacket before the incident that led to Plaintiff's injuries, and therefore she was wearing another jacket at the time she was injured. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶ 18 n.2.) Macy's argues, however, that this factual dispute is immaterial to its motion for summary judgment. (Id. )
See, e.g., Lorusso v. Menard, Inc. , No. 15-CV-7208,
Defendants have not filed any motions to formally exclude expert testimony, but instead have responded to Plaintiff's factual assertions by objecting to any assertions based on expert testimony. Many of Defendants' objections to expert testimony are based on, among other rules, Federal Rule of Evidence 702. (E.g. , R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 9-10.)
While Komar and Walmart explicitly raise this argument as grounds for summary judgment on Plaintiff's negligence claims, the argument applies equally to Plaintiff's strict liability claims, and Plaintiff has specifically addressed the issue of proximate cause with respect to the injuries caused by the Sleepwear in response to Komar's and Walmart's motions for summary judgment. See Kleen v. Homak Mfg. Co. ,
Because Macy's, unlike Komar, does not present any argument in support of summary judgment based on a lack of proximate cause, the Court declines to consider this issue as to the strict liability claims against Macy's. United States v. King-Vassel ,
The Court notes that Plaintiff's negligence claims also require the Court to conduct the risk-utility analysis in this case. Jablonski ,
The Court notes that state law governs what evidence is required to prove a case. See Poulter v. Cottrell Inc. , No. 12-CV-1071,
See also Hollister v. Dayton Hudson Corp. ,
(See, e.g. , R. 148-5, Spivak Dep. Tr. at 118 (opining that he proposes eliminating only some cotton-blend fabrics that are "full cover, wide, loose and flowing" from the marketplace), 126-27 (opining that not all cotton-blend clothing is unreasonably dangerous, and that "[i]f you were wearing a pair of cotton/polyester leotards, the likelihood of ignition, given the propensity of the garment, the fit of the fabric, it's very low risk, very low likelihood."); R. 161-2, Buc Aff. ¶ 34 ("Heavier weight garments are more difficult to ignite than light weight garments. Synthetic fabrics like nylon and polyester melt away from open flames. Silk self-extinguishes. Tight-fitting garments are harder to ignite[.]"); R. 161-3, Spivak Report ¶ 64 (opining that the clothing at issue "combines easily ignitable cotton blend fabrics, plus a resultant scaffolding effect contributed by the combination of a charring component cotton fiber plus a melting component polyester fiber; intimately blended together in yarn and fabric").)
Additionally, all of Plaintiff's evidence as to the harm caused by a failure to warn is premised on the foreseeability of clothing catching fire due to its use in and around the kitchen and as part of daily life, not on the foreseeability of clothing catching fire from another article of clothing, which is what happened with the Sleepwear. (See R. 161-3, Spivak Report at 4-5.) Plaintiff has presented no evidence from which a reasonable jury could find that warnings would prevent injury caused by the Sleepwear catching fire from another article of clothing instead of directly from a stove. See Broussard v. Houdaille Indus., Inc. ,
For example, Plaintiff's evidence as to flammability testing is that Macy's should have performed additional testing before putting the Jacket out on the market. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 33-35.) Macy's undertook this flammability testing to determine whether the Jacket's design was unusually flammable and therefore unreasonably dangerous. (Id. ) Therefore, whether Macy's should have performed additional testing to uncover a defect in the product's flammability characteristics or design is incorporated within Plaintiff's negligent-design claim. (See R. 165, Pl.'s Mem. Opp'n to Macy's at 17 ("evidence of testing is merely for the jury's consideration" in determining whether Macy's was negligent).)
The Court is aware that the standard for proximate cause is the same for negligence and strict liability, and that the Court has granted summary judgment on Plaintiff's strict liability, failure-to-warn claims due to Plaintiff's failure to present any evidence that can create a genuine dispute as to the existence of proximate cause for those claims. See Kleen ,