Edwards v. Wis. Pharmacal Co.

• Decision Date: 13 December 2013
• Docket Number: Civil Action No. 3:13–cv–143–TCB.
• Citation: 987 F.Supp.2d 1340
• Parties: Irby EDWARDS III, Plaintiff, v. WISCONSIN PHARMACAL COMPANY, LLC, The Coleman Company, Inc., and John Does 1 and 2, Defendants.
• Court: U.S. District Court — Northern District of Georgia

987 F.Supp.2d 1340

Irby EDWARDS III, Plaintiff,

v.WISCONSIN PHARMACAL COMPANY, LLC, The Coleman Company, Inc., and John Does 1 and 2, Defendants.

Civil Action No. 3:13–cv–143–TCB.

United States District Court,

N.D. Georgia,

Newnan Division.

Dec. 13, 2013.

Christopher Ron Smith, John Gary Phillips, Jr., Law Offices of Shane Smith, P.C., Peachtree City, GA, for Plaintiff.

Michael P. Bruyere, Michael Wolak, III, Freeman Mathis & Gary, LLP, William Douglas Ezzell, Pursley Lowery & Meeks, Atlanta, GA, for Defendants.

ORDER

TIMOTHY C. BATTEN, SR., District Judge.

Before the Court is Defendants Wisconsin Pharmacal Company and The Coleman Company's motion to dismiss Irby Edwards III's complaint [7].

I. Background

This products liability suit was filed in the State Court of Fayette County, Georgia before being removed to this Court.

On August 6, 2011, Edwards applied onto himself an insect repellant—Coleman Insect Repellent, 40% Deet Sportsmen—that he had purchased. He then suffered third-degree burns.

The insect repellant was allegedly designed, developed, manufactured, tested, packaged, advertised, promoted, marketed, distributed, labeled and sold by one (or both) of the Defendants. It was advertised to repel mosquitoes that may carry West Nile virus. And it was intended for personal use.

Edwards alleges that the insect repellant had latent properties that could cause third-degree burns. Moreover, although the Defendants knew or should have known about these properties, they never disclosed them or the associated risk of third-degree burns. Had they, Edwards would not have used their product.

The Defendants have moved to dismiss the complaint. Their motion will be granted in part and denied in part.

II. Legal Standard

A claim will be dismissed under Federal Rule of Civil Procedure 12(b)(6) if the plaintiff does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Chandler v. Sec'y of Fla. Dep't of Transp., 695 F.3d 1194, 1199 (11th Cir.2012). The Supreme Court has explained this standard as follows:

A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citation omitted); Resnick v. AvMed, Inc., 693 F.3d 1317, 1325 (11th Cir.2012). Thus, a claim will survive a motion to dismiss only if the factual allegations in the complaint are “enough to raise a right to relief above the speculative level,” and “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. And while all well-pleaded facts must be accepted as true and construed in the light most favorable to the plaintiff, Powell v. Thomas, 643 F.3d 1300, 1302 (11th Cir.2011), the court need not accept as true plaintiff's legal conclusions, including those couched as factual allegations, Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. Thus, evaluation of a motion to dismiss requires two steps: (1) eliminate any allegations in the complaint that are merely legal conclusions, and (2) where there are well-pleaded factual allegations, “assume their veracity and ... determine whether they plausibly give rise to an entitlement to relief.” Id. at 679, 129 S.Ct. 1937.

III. Discussion

The Defendants argue that Edwards has failed to adequately plead any of the nine counts set forth in the complaint: (1) negligence (failure to warn); (2) strict liability; (3) breach of express warranty; (4) breach of implied warranty; (5) fraudulent misrepresentation; (6) vicarious liability; (7) negligent hiring, training, supervision, and retention; (8) products liability; and (9) punitive damages. In his response, Edwards admits that Georgia law does not recognize “products liability” as a separate tort, so this count (eight) will be dismissed.

A. Count One: Negligence

Count one seemingly contains two negligence-based causes of action: one for the sale of a defective product and the other for failure to warn of the product's dangers. In Georgia, these are distinct causes of action because they implicate separate duties that product manufacturers owe their customers. Chrysler Corp. v. Batten, 264 Ga. 723, 450 S.E.2d 208, 211 (1994). The elements of these causes of action are otherwise the same.

To state a negligence claim, the plaintiff must plead facts sufficient to establish (1) a legal duty of the defendant; (2) breach of that duty; (3) damages; and (4) a causal connection between the defendant's breach and the plaintiff's damages. Berry v. Hamilton, 246 Ga.App. 608, 541 S.E.2d 428, 429–30 (2000) (citing Tuggle v. Helms, 231 Ga.App. 899, 499 S.E.2d 365, 367 (1998)). Under Georgia law, product manufacturers have a duty to exercise reasonable care in manufacturing their products so that they are reasonably safe for their intended and foreseeable uses and to warn the public of those damages arising from their products' use about which they know or reasonably should know. Batten, 450 S.E.2d at 211.

The Defendants argue that Edwards has not adequately pleaded causes of action for negligence or negligent failure to warn. Specifically, they attack his failure to allege “ how any specific Defendant breached any duty in connection with [Edwards]” as well as his failure “to identify any causal connection between any specific Defendant's conduct and any injury suffered by [Edwards], and further fails to specify which Defendant's product caused his injuries.” Thus, the Defendants contend that Edwards, like the plaintiffs in two unpublished Northern District of Georgia cases, fails to plead enough facts to state a claim for negligence under the Twombly—Iqbal standard. See Goodson v. Bos. Scientific, No. 1:11–cv3023–TWT, 2011 WL 6840593, at *3 (N.D.Ga. Dec. 29, 2011); Henderson v. Sun Pharm. Indus., Inc., 4:11–cv–60–HLM, 2011 WL 4024656, at *8 (N.D.Ga. June 9, 2011).

The Court disagrees. The purpose of Rule 8(a)(2) is to provide “the defendant fair notice of what the claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955,quoted in Davis v. Coca–Cola Bottling Co. Consol., 516 F.3d 955, 974 (11th Cir.2008). Here, the complaint sets forth the following facts:

(i) Edwards purchased Coleman Insect Repellant, 40% Deet Sportsmen;

(ii) the insect repellant is designed to be applied to the user's body;

(iii) the insect repellant is designed to repel mosquitoes, including those that carry West Nile virus;

(iv) the Defendants (either individually or jointly) were responsible for designing, developing, manufacturing, testing, packaging, marketing, distributing, labeling, and selling the insect repellant;

(v) the Defendants placed this product into the stream of commerce;

(vi) Edwards applied the insect repellant as directed;

(vii) the insect repellant contains no warnings that using it as directed can cause third-degree burns; and

(viii) Edwards suffered third-degree burns after applying the insect repellant.

The complaint also identifies the legal duties that the Defendants owe to Edwards as a customer and a member of the public.

Considered holistically, these factual allegations, when accepted as true and viewed in the light most favorable to Edwards, plausibly state a negligence claim for the sale of a defective product or failure to warn (or both). They also provide the Defendants with notice of the nature of the claim and the grounds on which it rests. Nothing else is required under Rule 8(a)(2), even after Twombly and Iqbal.

The Court has reviewed the unpublished orders that the Defendants cite and finds them distinguishable. First, the products at issue in those cases (medical devices and prescription drugs) are different in kind from the insect repellant at issue here. Second, the plaintiff's injuries in those cases arose long after the product was first used. See Goodson, 2011 WL 6840593;Henderson, 2011 WL 4024656. In any event, “[d]etermining whether a complaint states a plausible claim for relief [is] ... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679, 129 S.Ct. 1937 (internal citations omitted). And so the Court has.

Accordingly, the Defendants' motion to dismiss count one will be denied. The Court will, however, require Edwards to file an amended complaint that makes clear which factual allegations apply to each Defendant ¹ and that asserts distinct causes of action separately.

B. Count Two: Strict Liability

Count two, like count one, seems to include more than one type of strict-liability claim under O.C.G.A. § 51–1–11(b)(1). Georgia law recognizes three types of product defects: manufacturing defects, design defects and marketing/packaging defects. Banks v. ICI Americas, Inc., 264 Ga. 732, 450 S.E.2d 671, 672 (1994). But in all cases the inquiry is the same: “whether a product was defective, and if so, whether the defect was the proximate cause of a plaintiff's injury.” SK Hand Tool Corp. v. Lowman, 223 Ga.App. 712, 479 S.E.2d 103, 106 (1996).

To state a strict-liability claim the plaintiff must allege that (1) the defendant manufactured the allegedly defective product; (2) the allegedly defective product was not merchantable and reasonably suited for its intended use when the defendant sold it; and (3) the allegedly defective product proximately caused the plaintiff's injuries. Chi. Hardware & Fixture Co. v. Letterman, 236 Ga.App. 21, 510 S.E.2d 875, 877–78 (1999).

The Defendants principally raise two objections to this claim: first, Edwards “does not allege any specific design or manufacturing defect in Defendants' product or describe how...