Adelman-Tremblay v. Jewel Companies, Inc.

• Decision Date: 07 October 1988
• Docket Number: ADELMAN-TREMBLA,No. 87-2851,P,87-2851
• Citation: 859 F.2d 517
• Parties: Prod.Liab.Rep.(CCH)P 11,951 Cathylaintiff-Appellant, v. JEWEL COMPANIES, INC., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 517

859 F.2d 517

Prod.Liab.Rep.(CCH)P 11,951

Cathy ADELMAN-TREMBLAY, Plaintiff-Appellant, v. JEWEL COMPANIES, INC., et al., Defendants-Appellees.

No. 87-2851.

United States Court of Appeals Seventh Circuit.

Argued June 7, 1988.

Decided Oct. 7, 1988.

William P. Skemp, Hale Skemp, Hanson & Skemp, LaCrosse, Wis., for plaintiff-appellant.

Bruce A. Schultz, Madison, Wis., for defendants-appellees.

Before CUDAHY and RIPPLE, Circuit Judges, and ESCHBACH, Senior Circuit Judge.

CUDAHY, Circuit Judge.

Cathy Adelman-Tremblay brought this diversity action against Jewel Companies, Inc. ("Jewel") and Pacific World Corp. ("Pacific World") to recover for injuries suffered when she applied artificial fingernails from a kit assembled by Pacific World and sold by Osco Drug Store, owned and operated by Jewel. ¹ She alleged strict product liability and breach of implied warranty ² against Jewel, and strict product liability, negligence and res ipsa loquitur against Pacific World. Plaintiff also asserted a claim for punitive damages against Pacific World. The district court granted summary judgment in favor of both defendants on all of plaintiff's claims. We affirm.

I.

Summary judgment is appropriate if there are no genuine issues of material fact and the defendants are entitled to a judgment as a matter of law. See Fed.R.Civ.P. 56(c). In reviewing the grant of summary judgment, we read the record--including the pleadings, depositions and affidavits--in the light most favorable to the plaintiff, the nonmoving party. Miller v. A.H. Robins Co., Inc., 766 F.2d 1102, 1104 (7th Cir.1985). We recognize that tort actions generally are not disposed of by summary judgment because they typically involve a myriad of factual issues. Gracyalny v. Westinghouse Elec. Corp., 723 F.2d 1311, 1316 (7th Cir.1983); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure Sec. 2727 (1983). But where the facts are undisputed, as they appear to be in this case, and the plaintiff is precluded from recovery as a matter of law, a grant of summary judgment in favor of the defendants is appropriate. Id. Sec. 2729, at 197. With these principles in mind, we describe the background and events of this case.

The plaintiff purchased a "Nailene Nail Kit" at an Osco Drug Store in Wisconsin. The kit included artificial fingernails, a nail sander file and a tube of cyanoacrylate liquid glue (also known as "Crazy Glue" and "Super Glue"). After attaching the artificial nails to her own fingernails with the cyanoacrylate glue, the plaintiff experienced pain and permanently lost all of her natural fingernails. The three physicians who treated the plaintiff in the succeeding five months characterized her reaction as "allergic contact dermatitis." The plaintiff testified that she is allergic to many substances, including codeine, penicillin, aspirin, cats, dogs, trees, grass, nickel, pollen, bees, dust and certain fragrance products.

Pacific World has sold more than one million Nailene kits, all containing the cyanoacrylate glue, since it began marketing them in 1983. The injury to the plaintiff is the only adverse reaction known to Pacific World, and neither Pacific World nor Jewel has ever received a complaint about the Nailene kit.

The defendants moved for summary judgment, asserting that neither a manufacturer nor a seller are liable when an unusually susceptible consumer suffers a rare allergic reaction to a product not previously known to cause such a reaction. The plaintiff responded to the motion by filing an affidavit of Dr. James D. Hogan, a dermatologist to whom the plaintiff was referred by her treating physicians. The plaintiff planned to use Dr. Hogan as her medical expert at trial. Dr. Hogan stated that the plaintiff's injuries were caused by a toxic, not an allergic, reaction to the glue. On the basis of this affidavit, the plaintiff opposed summary judgment by arguing that a question of fact existed with respect to whether her injury was caused by a toxic or an allergic reaction. A toxic reaction would allegedly show that the product was defective. She also argued that resolution of this factual issue was material to the question whether the defendants' failure to warn about the product's dangerous side effect constituted negligence.

After briefing was completed on the defendants' summary judgment motion, Pacific World deposed Dr. Hogan and submitted an affidavit summarizing his testimony. The affidavit indicated that Dr. Hogan had changed his mind as to the nature of the plaintiff's reaction to the glue. Based on the results of a patch test and on his consultation with Dr. Alex Fischer, a dermatologist who is an authority on contact dermatitis, Dr. Hogan concluded that the plaintiff suffered an extremely rare allergic reaction previously unknown to him and unreported in the medical literature. Based on new evidence, Dr. Hogan no longer believed that the plaintiff suffered a toxic reaction. Because he had recently learned of only two other similar occurrences, Dr. Hogan indicated that he was unaware of any reason for giving a warning as to the use of the glue found in the nail kit. ³

The district court issued a memorandum order indicating that, in light of Dr. Hogan's testimony, summary judgment was appropriate, but withheld granting the motion to allow the plaintiff to address the deposition of Dr. Hogan.

At oral argument on the summary judgment motion, the plaintiff filed a supplemental affidavit of Dr. Hogan, purporting to clarify his deposition testimony. In his affidavit, Dr. Hogan stated that the patch test showed that the plaintiff was allergic to the glue "at this point in time," but that it did not prove that her initial response to the glue was an allergic reaction. He speculated that the allergic reaction to the patch test may have been the result of the plaintiff's previous exposure to the glue, but that the "initial insult mechanism" causing plaintiff's injury could not be determined. Dr. Hogan also concluded that the patch test does not establish whether the plaintiff is unusually susceptible to the glue or whether the glue contains an ingredient potentially harmful to the general population. It was his opinion, however, that it was unlikely that the plaintiff was an unusually susceptible person, that a defect in the glue posed a risk of harm to the ordinary consumer and that, therefore, the product's label should warn of the possibility of an allergic or a toxic reaction. The plaintiff also submitted an article from the October 1987 issue of Dermatology Times that reported four case studies and recommended patch testing for sensitivity to cyanoacrylate glue.

The district court granted the defendants' summary judgment motion. The court stated that "a major part of Dr. Hogan's [second] affidavit flatly contradicted his deposition testimony." The court noted, for example, that Dr. Hogan's latest version of the cause of the plaintiff's injury--that she suffered from either a toxic or an allergic reaction--implied that the mechanism of the plaintiff's injury was unknowable and thus contradicted his deposition testimony that the plaintiff had suffered an allergic reaction. The court also noted that Dr. Hogan's opinion that ordinary consumers are endangered by the product contradicted his deposition testimony that the plaintiff's allergic reaction was a rare occurrence. Because there was no newly discovered evidence and the plaintiff had not lacked access to material facts--two compelling reasons for which courts will allow plaintiffs to contradict prior sworn testimony to avoid summary judgment--the district court held that Dr. Hogan's supplemental affidavit could not be used to create a factual issue. The district court concluded that because the plaintiff suffered an unusual allergic reaction to the glue, she would be unable to prove a case against defendants on any theory of product liability. Thus, summary judgment in favor of Jewel and Pacific World was appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). We affirm.

II.

On appeal, the plaintiff argues that Dr. Hogan's second affidavit precludes summary judgment by creating an issue of material fact as to whether she suffered a toxic or an allergic reaction to the glue. The plaintiff claims that Dr. Hogan's second affidavit--in which, contrary to his deposition testimony, he indicated that the plaintiff's reaction to the glue may have been toxic rather than allergic--was based on newly discovered evidence and was intended to clarify, not contradict, the "broad, general statements made at his deposition." Brief of Plaintiff-Appellant at 13. Thus, according to the plaintiff, the district court erred in concluding that this affidavit could not be used to create an issue of fact.

In this circuit, a party may avoid summary judgment by submitting an affidavit that conflicts with its earlier deposition testimony in only a limited number of circumstances. Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir.1985). For example, a subsequent affidavit may be allowed to clarify ambiguous or confusing deposition testimony. Id. In this case, however, Dr. Hogan's testimony was a model of clarity. See Appendix to this opinion. He essentially testified that he had not changed his mind about the nature of the plaintiff's injury; that, based on the results of a patch test and on his consultation with Dr. Fischer, he believed that the plaintiff suffered a rare allergic reaction rather than a toxic reaction to the glue. Dr. Hogan directly contradicted this testimony in his supplemental affidavit in which he stated that the patch test does not indicate whether the plaintiff's reaction upon initial exposure to the glue was allergic or toxic.

A contradictory supplemental affidavit is also permissible if it is based on newly discovered evidence. The plaintiff points to a journal article as newly discovered evidence that...