Haddix v. Playtex Family Products Corp.
| Decision Date | 26 March 1997 |
| Docket Number | No. 93-2004.,93-2004. |
| Citation | 964 F.Supp. 1242 |
| Parties | Martha HADDIX, Plaintiff, v. PLAYTEX FAMILY PRODUCTS CORPORATION, Defendant. |
| Court | U.S. District Court — Central District of Illinois |
Brent D. Holmes, Teresa Keller Righter, Heller Holmes & Associates P.C., Mattoon, IL, for Plaintiff.
Todd M. Tennant, D. Cameron Dobbins, Dobbins Fraker Tennent Joy & Perstein, Champaign, IL, Richard M. Cooper, Paul Mogin, Williams & Connolly, Washington, DC, George W. Gessler, Kimberley Marsh, Donna Kaner Socol, Gessler Flynn Fleishmann Hughes & Socol, Chicago, IL, William H. Robinson, Jr., Wright robinson McCammon Osthimer & Tatum, Richmond, VA, for Defendant.
This matter is before the Court for reconsideration of Judge Harold A. Baker's rulings on Playtex Family Products Corporation's Motion for Summary Judgment on Count V[# 50] and Playtex Family Products Corporation's Motion for Summary Judgment [# 81]. For the reasons set forth below, both Motions are GRANTED.
Plaintiff, Martha Haddix ("Haddix"), became ill on November 30, 1990 and sought medical attention the following day. On December 3, 1990, Haddix was hospitalized. On December 3, 1992, Haddix sued Defendant,1 Playtex Family Products Corporation ("Playtex"), alleging that she had contracted toxic shock syndrome ("TSS") through her use of "Playtex Portables" deodorant tampons.
On July 25, 1994, Playtex filed a Motion for Partial Summary Judgment ("First Motion") as to all claims regarding their dependancy on Haddix's allegation that the warnings concerning TSS were inadequate and as to Haddix's claim for breach of an implied warranty of fitness for a particular purpose. Judge Harold A. Baker granted the First Motion on March 17, 1995.
In the meantime, on February 28, 1995, Playtex filed a Motion for Summary Judgment on Count V ("Motion on Count V") regarding breach of implied warranty of merchantability. After issuance of the March 17, 1995 Order, on March 24, 1995, Playtex filed a Supplemental Memorandum In Support and informed the Court that the March 17, 1995 Order did not address its Motion on Count V, which remained pending. On April 28, 1995, Haddix filed her opposition, to which Playtex filed a Reply on May 19, 1995. On June 8, 1995, Judge Baker issued a minute entry which stated in its entirety:
MINUTE-ENTRY: by Judge Harold A. Baker denying motion for summary judgment on Count 5 [50-1] as the court granted partial summary judgment on March 17, 1995. All remaining issues are to be tried. (cc: all counsel)
As stated above, Judge Baker's March 17, 1995 Order had granted Playtex's First Motion regarding its alleged failure to warn and any implied warranty of fitness for a particular purpose.
On September 27, 1996, the case was reassigned to Chief Judge Michael M. Mihm. Playtex received permission to file another Motion for Summary Judgment ("Final Motion"). It states that Haddix's "only remaining claim is that Playtex is strictly liable for an alleged design defect in its tampons" in that Playtex used rayon fiber instead of all cotton fiber in the tampons. Haddix did not dispute that the Final Motion would dispose of the case. The Court denied the Final Motion as to Playtex's argument that Haddix had not filed suit within the statute of limitations. After oral argument, the Court notified the parties of its decision to grant the remainder of the Final Motion, with a written Order to follow. Haddix inquired whether the trial would proceed on schedule as to Count V. At a telephonic status conference, the Court informed the parties that it would reconsider the Motion on Count V. As the parties have been informed, the Motion on Count V is granted.
The Code of Federal Regulations ("C.F.R.") defines a tampon as "a device that is a plug made of cellulosic or synthetic material that is inserted into the vagina and used to absorb menstrual or other vaginal discharge." 21 C.F.R. § 884.5460, 5470 (1996). The United States Food and Drug Administration ("FDA") has promulgated regulations for tampons requiring manufacturers to warn tampon-users about the reported risk of contracting TSS from tampon use. 21 C.F.R. § 801.430.
Playtex has complied with the FDA's warning requirements. (Order of March 17, 1995, Baker, J.; R & R of February 9, 1995, Kauffman, J. at 4.) A federally required warning about TSS appears in three places on Playtex's tampon boxes: on the large panel containing product information, on the end of the box which purchasers are directed to open, and on the opposite end from the end to be opened. The end of the box which is not intended to be opened is tightly glued. This warning states:
ATTENTION: Tampons are associated with Toxic Shock Syndrome (TSS). TSS is a rare but serious disease that may cause death. Read and save the enclosed information.
(Affidavit of Dr. Irwin Butensky ("Butensky Aff.") at Exh. 3.) Another warning is set forth on a box insert, which is placed so that it is immediately seen when the box is opened. From January 1987 through and including December 1990, the insert read in red print:
WARNING:
Important
Information About
Toxic Shock
Syndrome (TSS).
(Butensky Aff. at ¶ 5.) From January 1990 through and until December 1990, the text of the insert read:
IF THESE OR OTHER SIGNS OF TSS APPEAR, YOU SHOULD REMOVE THE TAMPON AT ONCE, DISCONTINUE USE, AND SEE YOUR DOCTOR IMMEDIATELY.
There is a risk of TSS to all women using tampons during their menstrual period. TSS is a rare but serious disease that may cause death. There are scientific studies that have concluded that tampons contribute to the cause of TSS.
The reported risks are higher to women under 30 years of age and teenage girls. The incidence of TSS is estimated to be between 1 and 17 cases of TSS per 100,000 menstruating women and girls per year.
You can avoid any possible risk of getting tampon-associated TSS by not using tampons.
There are scientific studies which have concluded that higher absorbency tampons increase the risk of TSS. [Studies are described.]
Playtex tampons are available in several ranges of absorbencies: Regular Absorbency (6-9 grams); Super Absorbency (9-12 grams); and Super Plus Absorbency (12-15 grams). Each range represents the grams of fluid that can be absorbed by all manufacturers' tampons based on a standardized laboratory test. Use this information to compare the absorbencies of Playtex Tampons to other brands.
Select the minimum absorbency needed to control your menstrual flow in order to reduce the risk of getting TSS.
A scientific study has concluded that the risk of TSS is increased if you use tampons continually during your menstrual period. You can reduce risk of getting TSS during your period by alternating tampon use with sanitary napkin use.
If you have had warning signs of TSS in the past, you should check with your doctor before using tampons again. If you have any questions about TSS or tampon use, you should check with your doctor. Scientists believe that TSS requires toxin(s) produced by Staphylococcus aureus, a bacterium that sometimes causes infections. The majority of reported TSS cases are among tampon users.
P.O. # R0103526
PO6-97600-0-A
(Butensky Aff. at ¶ 5, Exh. B.) (Emphasis in original.)
Haddix testified at her deposition that she first learned about TSS ten years before she became ill. (Haddix dep., p. 33.) Before she became ill, she had read the box insert from the type of Playtex tampons she used, had read a magazine article about TSS, was aware of the risk of TSS associated with tampon use, and was aware that the risk was avoidable by not using tampons. Id. at 33, 48-50.
A motion for summary judgment "shall be rendered forthwith if ... there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue of material fact is one that could enable a reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
The movant must show an absence of a genuine issue of material fact to support the nonmovant's case. Id. at 255-57, 106 S.Ct. at 2514; Celotex Corp. v. Catrett, 477 U.S. 317, 321-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The substantive law at issue in the lawsuit identifies which facts are material. Anderson, 477 U.S. at 247-49, 106 S.Ct. at 2510. The nonmoving party must "go beyond the pleadings and by [her or his] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. at 2553 (internal quotation marks omitted). The Court favors the nonmoving party and draws all justifiable inferences in its favor; however, the nonmovant may not rest on his pleadings but "must set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256, 106 S.Ct. at 2514; accord Fed. R.Civ.P. 56(e).
The warnings Playtex placed on its tampon boxes met the FDA warning requirements. (Order of March 17, 1995, Baker, J., granting the First Motion based on federal preemption and leaving undisturbed the finding in the Report and Recommendation issued by Magistrate Judge Robert J. Kauffman that Playtex's warnings meet federal requirements.) The presence of legally adequate warnings gives notice to consumers that they may encounter the risks against which they are warned. Papike v. Tambrands Inc., 107 F.3d...
To continue reading
Request your trial
-
Prather v. Organon USA, Inc. (In re NuvaRing® Prods. Liab. Litig.)
...that the warranty of merchantability is not breached when a user is harmed by aspecific risk against which the product warns. 964 F. Supp. 1242, 1246—47. However, Haddix requires that the warning not only be specific, but adequate. See id. at 1247. As discussed above, Prather has shown that......