Bolden v. Beiersdorf, Inc.

Decision Date23 March 2022
Docket Number20-cv-150-DWD
CourtU.S. District Court — Southern District of Illinois
PartiesMAHOGANY BOLDEN, Plaintiff, v. BEIERSDORF, INC., Defendant.
MEMORANDUM AND ORDER

DAVID W. DUGAN, United States District Judge.

In this matter, Plaintiff alleges injuries resulting from her use of "Nivea Skin Firming Hydration Body Lotion" (the "Product" or "Lotion") which is manufactured by Defendant Beiersdorf, Inc. Now before the Court is Defendant's Motion for Summary Judgment (Doc 99). Plaintiff filed a response (Doc. 117), to which Defendant replied (Doc. 121).

Background

This case is simpler than the docket sheet indicates. Plaintiff purchased Defendant's Lotion from Walmart, Inc.[1] Plaintiff applied the lotion on or about January 9, 2018. After applying the lotion, Plaintiff suffered burns, irritation and permanent damage to her body. In her amended complaint (Doc. 89) Plaintiff brings five counts against Defendants for strict liability or negligence premised on Defendants' sale of alleged unsafe, dangerous, or defective lotion (Count I), alleged failure to test and/or supply appropriate warnings for its lotion (Count II), a request for punitive damages for disregarding the safety and wellbeing of its customers (Count III), breach of implied warranty (Count IV), and violations of the Illinois Consumer Fraud and Deceptive Business Practices Act (Count V). Defendant moved to dismiss the complaint, alleging various defenses and a failure to state a claim (Doc. 90). Defendant also seeks the entry of summary judgment on all counts (Doc. 99).

As further detailed below, the Court will grant Defendant's Motion for Summary Judgment (Doc. 99) on all claims. Therefore, Defendant's pending Motion to Dismiss (Doc. 90) will be denied as moot. See, e.g., Seng-Tiong Ho v. Taflove, 648 F.3d 489, 492 (7th Cir. 2011); Martinez v. Nw. Meml Healthcare, No. 19-CV-04923, 2021 WL 4635798, at *3 (N.D. 111. Oct. 7, 2021). The parties' Motions concerning expert testimony (Docs. 98, 103, 107) will also be denied as moot.

Legal Standard

Summary judgment is proper where the movant shows "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A genuine issue of triable fact exists only if, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Pugh v. City Of Attica, Indiana, 259 F.3d 619, 625 (7th Cir. 2001) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

Defendant as the movant bears the burden of establishing the absence of fact issues and entitlement to judgment as a matter of law. Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461 (7th Cir. 1997) (citing Celotex Corp., 477 U.S. at 323). Once the moving party has set forth the basis for summary judgment, the burden then shifts to the nonmoving party who must go beyond mere allegations and offer specific facts showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e);Celotex Corp., 477 U.S. at 323. The nonmoving party must offer more than "[c]onclusory allegations, unsupported by specific facts," to establish a genuine issue of material fact. Payne v. Pauley, 337 F.3d 767, 773 (7th Cir. 2003) (citing Lujan v. Natl Wildlife Fed'n, 497 U.S. 871, 888 (1990)).

A party will successfully oppose summary judgment only if it presents, "definite, competent evidence to rebut the motion." E.E.O.C. v. Sears, Roebuck & Co., 233 F.3d 432, 437 (7th Cir. 2000). The Court considers the record in the light most favorable to the nonmoving party and draws all reasonable inferences in the nonmovant's favor. Lesch v. Crown Cork & Seal Co., 282 F.3d 467, 471 (7th Cir. 2002). However, the Court accepts the nonmoving party's version of any disputed fact only if supported by relevant, admissible evidence. Bombard v. Fort Wayne Newspapers, Inc., 92 F.3d 560, 562 (7th Cir. 1996).

Finally, at the summary judgment stage it is not the Court's role to "sift through the evidence, pondering the nuances and inconsistencies, and decide whom to believe." D.Z. v. Buell, 796 F.3d 749, 756 (7th Cir. 2015) (citing Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994); see also Boss v. Castro, 816 F.3d 910, 914 (7th Cir. 2016) (courts are not required to scour the record looking for factual disputes or piece together appropriate arguments). Instead, the Court "is only tasked with deciding whether, based on the evidence of record, there is any material dispute of fact that requires a trial." Buell, D.Z., 796 F.3d at 756.

Undisputed Facts

The following facts are undisputed unless otherwise stated. On January 9, 2018 (or the early morning of January 10, 2018) Plaintiff took a bath (Plaintiffs Deposition, Doc. 117-1, at pp. 63-65). Plaintiff speculated that she used liquid body soap in the bath, which she normally does, but could not recall a particular product that she may have used during her bath (Id. at p. 69). After getting out of the bath, she applied Nivea's Skin Firming Hydration body lotion (the "Lotion" or "Product") to her legs, buttocks, stomach, and breasts (Id. at pp. 67-69). When she applied the Lotion to her breasts, "within seconds" she felt a burning sensation (Id. at p. 69). Plaintiff washed the Lotion off with soap (Id. at p. 70-71) and testified that breasts were "raw" and "burned" (Id. at pp. 71-73). Plaintiff then applied gauze, and Neosporin or another antibiotic ointment to her breasts (Id. at 75-76).

Plaintiff was observed by a nurse practitioner at the emergency room on the evening of January 10, 2018, and was prescribed Benadryl or another steroid (Id. at 77, 83-85). Plaintiff does not recall if she filled the prescription, and did not scheduled a follow-up appointment (Id. at 84-85), but she did discuss her continuing breast issues with her Ob/Gyn because Plaintiff became pregnant in the summer or fall of 2018 after the Lotion incident (Id. at 85-87). Plaintiff claims her breasts never fully recovered and she still experiences "flares" (Id. at 114). She normally takes over-the-counter pain medication during these "flares" (Id.). Plaintiff further had concerns about breastfeeding her infant and chose not to breastfeed her infant because of her injuries (Id. at 87-90).

In April 2021, Plaintiff completed a patch allergy test (Deposition of Dr. Love, Doc. 100-2, pp. 36-39). The test was self-administered but was overseen by board-certified dermatologist, Dr. Love (Id.). The patch test tested 36 allergens to see if Plaintiff had a reaction to the allergens (Id.). Dr. Love testified that the patch test included the ingredient "Methylisothiazolinone", which Dr. Love testified was "a common ingredient used in lotions and moisturizers" and also "a common allergen" (Doc. 100-2, pp. 38-39, 43). Plaintiff was not specifically tested to see if the Lotion caused a reaction (Id.. Plaintiffs patch test revealed that she had a "strong reaction" to three ingredients: "cobalt, diazolidinyl urea and bromopol" (Doc. 100-2, p. 41). These three ingredients are not found in the chemical make-up of the Lotion (Doc. 100-2, p. 42); (see also Doc. 100-3, at ¶ 7). Plaintiff did not react to "Methylisothiazolinone" during the patch test (Doc. 100-2, p. 42).

Defendant manufactures Nivea's Skin Firming Hydration body lotion (the "Lotion" or "Product"). The Lotion was reformulated in 2015 and available to the public in 2016. The Lotion has not been reformulated since 2015 (Deposition of John Volpe, Doc. 117-3, at p. 131). The parties represent that Plaintiff used the 2016 formulation of the Lotion. Defendant estimates that "upwards of a million and a half" bottles of the Lotion are sold by Defendant per year (Deposition of John Volpe, Doc. 117-3, at p. 68). The Lotion's ingredients are listed on the back of the Lotion container (see Doc. 100-9), and include: "Water, Glycerin, Isopropyl Palmitate, Alcohol Denat., Glyceryl Stearate SE, Glyceryl Stearate, C12-15 Alkyl Benzoate, Dimethicone, Butyrospermum Parkii (Shea) Butter, Tapioca Starch, Creatine, Carnitine, Ubiquinone, Phenoxyethanol, Fragrance, Carbomer, Sodium Hydroxide, 1-Methylhydantoin-2-Imide, Sodium Cetearyl Sulfate, Ethylhexylglycerin." The Lotion further has the following on its label:

To Use: Smooth lotion over body twice daily. www.NIVEAUSA.com
Questions? Comments? 1-800-227-4703 . . .
Caution: Keep out of reach of children. For external use only. Avoid contact with eyes. Stop use if irritation develops.

(Doc. 100-9).

Defendant had two clinical tests performed on the Lotion (See Doc. 102). The "claim substantiation" test was performed in April and May 2015, for the purpose of testing to substantiate the Lotion's claims that it was "firming and moisturizing." (Deposition of John Volpe, Doc. 117-3, pp. 50-51, 53-54). The test results substantiated the claims for dermatological use and indicated that the Lotion was "well tolerated" and marketable. (Id. at pp. 68-69, 143). Another test was performed in October and November 2018 (Id. at pp. 82-83, 85). Defendant referred to this test as an exaggerated test, designed to test a "more intense, accelerated" quantity of Lotion than a consumer's normal use (Id. at pp. 86-87). The test attempts to trigger or introduce a response from the subjects in order to show that the Lotion is "nonirritating and skin tolerant." (Id.. Defendant's chemist and Senior Manager of Research and Development, John Volpe, testified that the Lotion was "properly tested, found safe, and was released" (Id. at p. 143). He further testified that the Lotion performs well, sells well, is popular in the market, and he has "never heard any instance of any problem with it" (Id. at 144).

Defendant's senior quality assurance manager, Laura Virginia...

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