Anderson v. Procter & Gamble, Procter & Gamble U.S. Bus. Servs. Co.
| Decision Date | 02 June 2021 |
| Docket Number | No. 1:19-cv-04531-JRS-DLP,1:19-cv-04531-JRS-DLP |
| Citation | 542 F.Supp.3d 850 |
| Parties | Larry E. ANDERSON, Plaintiff, v. PROCTER & GAMBLE, Procter & Gamble U.S. Business Services Company, Procter & Gamble Distributing LLC, Defendants. |
| Court | U.S. District Court — Southern District of Indiana |
Michael W. Phelps, Stewart Phelps Wood, Indianapolis, IN, for Plaintiff.
Christina Laun Fugate, Ellen Pactor, Ice Miller LLP, Indianapolis, IN, for Defendants.
Order on Motion for Summary Judgment
On April 14, 2017, Plaintiff Larry Anderson discovered a burn on his right foot, which he claims was caused by an individual, partially dissolved, packet of Tide PODS ("PODS") inside his sock. On July 18, 2019, Anderson brought suit in the Brown County Circuit Court, Brown County, Indiana, against Defendants Procter & Gamble, Procter & Gamble U.S. Business Services Company, and Procter & Gamble Distributing LLC (collectively, "P&G"), the manufacturer of PODS, alleging P&G is liable for defective design and failure to provide adequate warnings under the Indiana Product Liability Act ("IPLA"), Ind. Code § 34-20-1-1 et seq. On November 12, 2019, P&G removed the action to this Court pursuant to diversity jurisdiction. P&G now moves for summary judgment, (ECF No. 51), asserting that Anderson cannot establish the essential elements of his claims. For the following reasons, P&G's motion is granted .
PODS are a single-unit dose packet of liquid laundry detergent, sold as individual packets ("pacs") in a plastic container or bag. (Vasunia Aff. ¶¶ 4–5, ECF No. 51-3 at 2.) To do a load of laundry correctly using PODS, a consumer places a single pac into the washing machine prior to placing the items to be washed in the washing machine. (Id. ¶ 5, ECF No. 51-3 at 2.) Once the washing machine starts and fills with water, the outer film of the pac dissolves in the water and releases the detergent into the wash. (Id. ) P&G provides specific instructions and warnings on the PODS packaging for consumers to follow in the use of the product and in the event of skin exposure. (Id. ¶ 17, ECF No. 51-3 at 6.)
The PODS product packaging contains the instruction:
ADD PACS TO DRUM BEFORE CLOTHES
(Id. ) This instruction appears conspicuously in all capital letters because it is important: putting the pac in first allows water to reach the pac more directly and more quickly, which facilitates dissolution. (Id. ) The PODS product packaging also contains the following instruction:
FIRST AID TREATMENT: Contains nonionic and anionic surfactants, ethoxylated polyethylene polyamine (polymer) and enzymes. If swallowed, or if detergent gets in mouth or on skin , call your local Poison Control Center (or in US: 1-800-222-1222) or doctor immediately. Immediately and thoroughly rinse eye or skin with water for 15 minutes. If swallowed, give a glass of water or milk. Do not induce vomiting.
(Id. ¶ 18 (emphasis added).)
Since PODS were first introduced, Anderson and his wife, Connie Anderson, have used PODS. (Anderson Dep. 11:4–6, ECF No. 51-4 at 4.) Mr. and Mrs. Anderson read the PODS instructions when they first started using PODS. (Anderson Dep. 17:1–13, ECF No. 51-4 at 5; Mrs. Anderson Dep. 23:13–25, ECF No. 51-5 at 3.) However, after reading them, Anderson only reviewed the instructions a few more times throughout the years to refresh his memory. (Anderson Dep. 17:15–19, ECF No. 51-4 at 5.) Despite reading the instructions, Anderson would not place a PODS pac in the washer before placing his clothes in the washer; instead, he would first place his laundry in the washer and add a PODS pac afterward. (Anderson Dep. 12:8–12; 25:19–24, ECF No. 51-4 at 4, 7.) When Mrs. Anderson did laundry, she would sometimes add fabric softener to the load, which was blue in color, or use dryer sheets. (Mrs. Anderson Dep. 26:14–16, 46:9–11, ECF No. 51-5 at 4, 8.) In August of 2017, Anderson and his wife shared laundry duties. (Anderson Dep. 10:18–19, ECF No. 51-4 at 4.) However, Anderson does not recall who did the load of laundry immediately prior to August 14, 2017. (Anderson Dep. 21:5–11, ECF No. 51-4 at 6.)
On August 14, 2017, Anderson woke up early and got ready to head to his job at Kramer Furniture and Cabinet Makers in Edinburgh, Indiana. (Anderson Dep. 8:17, 20:11, ECF No. 51-4 at 3, 6.) That morning, he put on a pair of white work socks. (Anderson Dep. 20:15–16, 21:3–4, 51:3–21, ECF No. 51-4 at 6, 14.) He did not pay particular attention to his socks. (Anderson Dep. 51:8–12, ECF No. 51-4 at 14.) He put on a pair of relatively new steel-toed boots that he had owned for about a week; "just a few days before the incident," his employer had started to require employees to wear steel-toed boots rather than tennis shoes, which Anderson had previously worn during the summer. (Anderson Dep. 43:2–18, ECF No. 51-4 at 12.) The boots were not particularly comfortable and did not "breathe well." (Anderson Dep. 43:18, 43:25, ECF No. 51-4 at 12.)
Anderson arrived at work in time for his 6:00 a.m. shift. (Anderson Dep. 42:20, ECF No. 51-4 at 12.) August 14 was a warm day; the temperature rose to the "mid 80s," and Anderson had a busy day working on cabinetry, which required him to be on his feet for most, if not the entire, day. (Anderson Dep. 42:25, 44:6–7, 46:25, 47:6, 48:5–9, ECF No. 51-4 at 12, 13.) Anderson had no pain in his foot at first, but as the workday went on and the temperature increased in the shop, his right foot began to itch. (Anderson Dep. 43:20–23, ECF No. 51-4 at 12.) At the time, Anderson attributed his discomfort to his steel-toed boots. (Anderson Dep. 43:24–25, 44:10–11, ECF No. 51-4 at 12.) Anderson also had sensations in his feet that day due to his Type II diabetes. (Mrs. Anderson Dep. 37:7–23, 38:2–7, ECF No. 51-5 at 5, 6; cf. Anderson Dep. 70:13–18, ECF No. 51-4 at 18.) Unfortunately, although he wanted to remove his boot to let his foot air out, he did not have the time to do so. (Anderson Dep. 44:15–18, ECF No. 51-4 at 12.)
After completing his ten-hour shift, Anderson drove home. (Anderson Dep. 44:23, 48:22, ECF No. 51-4 at 12, 13.) Once he arrived home, he removed his right boot and right sock and noticed that his foot "started to become kind of like really irritated and red looking." (Anderson Dep. 45:20–21, ECF No. 51-4 at 12.) He also noticed an oval-shaped blue stain on the top of his right sock, which was about three inches in diameter and smelled like laundry detergent. (Anderson Dep. 46:4–6, 50:11–18, 53:21–23, ECF No. 51-4 at 13, 14.) Mrs. Anderson witnessed Anderson's injury but does not recall what the sock looked like or whether the sock had a blue stain on it. (Anderson Dep. 67:2–4, ECF No. 51-4 at 17; Mrs. Anderson Dep. 39:10–21, 42:24–43:5, ECF No. 51-5 at 6, 7.)
The next day, Anderson went to the doctor to treat his foot injury, which he was told was a chemical burn. (Anderson Dep. 55:9–18, ECF No. 51-4 at 15.) In the days that followed, his wound blistered and eventually turned into an open sore; he followed up with his doctor several times to continue treatment. (Id. )
Anderson does not recall when the right sock had been last washed before he wore it on August 14, 2017. (Anderson Dep. 21:14–16; 39:24–40:13, ECF No. 51-4 at 6, 11.) Moreover, after the incident, Mrs. Anderson washed the work clothes Anderson wore on August 14, 2017—including the right sock. (Anderson, 52:21–24, ECF No. 51-4 at 14.) Anderson no longer has the sock, nor the washing machine. (Anderson Dep. 22:17–23:7, 52:19, ECF No. 51-4 at 7, 14.)
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). The movant bears the initial burden of production. Modrowski v. Pigatto , 712 F.3d 1166, 1168 (7th Cir. 2013). That initial burden consists of either "(1) showing that there is an absence of evidence supporting an essential element of the non-moving party's claim; or (2) presenting affirmative evidence that negates an essential element of the non-moving party's claim." Hummel v. St. Joseph Cnty. Bd. of Comm'rs , 817 F.3d 1010, 1016 (7th Cir. 2016) (citing Modrowski , 712 F.3d at 1169 ). If the movant discharges its initial burden, the burden shifts to the non-moving party, who must present evidence sufficient to establish a genuine issue of material fact on all essential elements of his case. See Lewis v. CITGO Petroleum Corp. , 561 F.3d 698, 702 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party's favor. Skiba v. Ill. Cent. R.R. Co. , 884 F.3d 708, 717 (7th Cir. 2018). But the Court must also view the evidence "through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).
As a preliminary matter, Anderson has abandoned his defective design claim under the IPLA by conceding that P&G did not violate Indiana Code § 34-20-2-1. (ECF No. 58 at 7 ().) Therefore, the Court grants summary judgment as to Anderson's defective design claim. Cf. Mach v. Will Cnty. Sheriff , 580 F.3d 495, 501 (7th Cir. 2009) ().
The Court now addresses whether summary judgment is warranted as to Anderson's remaining claim—failure to provide adequate warnings. Anderson argues that P&G failed to provide two warnings on the PODS packaging: (1) "to inspect clothing after washing, but before wearing clothes"; and (2) "that failing to inspect clothing after washing, but before wearing the clothes, could cause burns upon the skin." (ECF No. 58 at 8.)...
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