Haddix v. Playtex Family Products Corp.

Decision Date06 March 1998
Docket NumberNo. 97-2074,97-2074
Citation138 F.3d 681
PartiesProd.Liab.Rep. (CCH) P 15,173 Martha HADDIX, Plaintiff-Appellant, v. PLAYTEX FAMILY PRODUCTS CORPORATION, Defendant-Appellee.
CourtU.S. Court of Appeals — Seventh Circuit

David Stevens (argued), Brent D. Holmes, Heller, Holmes & Assocs., Mattoon, IL, for Plaintiff-Appellant.

Todd M. Tennant, Dobbins, Fraker, Tennant, Joy & Perlstein, Champaign, IL, William H. Robinson, Jr., Wright, Robinson, McCammon, Osthimer & Tatum, Richmond, VA, Richard M. Cooper, Williams & Connolly, Washington, DC, George W. Gessler (argued), Kimberley Marsh, Gessler, Hughes & Socol, Chicago, IL, for Defendant-Appellee.

Before CUMMINGS, BAUER and EVANS, Circuit Judges.

BAUER, Circuit Judge.

In this products liability case, removed to federal court on the basis of diversity of citizenship, plaintiff Martha Haddix ("Haddix") appeals from the district court's grant of summary judgment to defendant Playtex Family Products Corporation ("Playtex"). She presently argues that the district court's decision was erroneous and should be reversed. As discussed below, we find that the district court properly determined that summary judgment for the defendant was appropriate, and we affirm.

BACKGROUND

On December 3, 1990, Haddix was hospitalized for several days after experiencing a high fever, chills, coughing, vomiting, diarrhea, and aches all over her body. Haddix was informed that she had contracted Toxic Shock Syndrome ("TSS"), and that she should never use tampons again. TSS is a disease caused by a toxin produced by the Staphylococcus aureus bacteria, the growth of which can occur in tampons. In the week prior to her hospitalization, Haddix had used Playtex Portable super absorbency tampons for spotted menstrual bleeding. On Friday, November 30, Haddix felt ill, prompting her to leave work early and go to the hospital. After undergoing some tests, she was released and diagnosed with the flu. Over the next few days, her symptoms persisted and worsened, leading to Haddix's hospitalization and the eventual diagnosis that she suffered from TSS.

In response to her illness, Haddix filed suit against Playtex on December 3, 1992, in the Circuit Court of Edgar County, Illinois. Playtex (and then-defendant K-Mart, who was later dismissed from the suit) removed the case to the United States District Court for the Central District of Illinois on January 5, 1993. After a rather confusing procedural history and the filing of several motions for summary judgment by Playtex, Chief Judge Michael M. Mihm granted summary judgment to Playtex on all remaining issues on March 26, 1997. Final judgment was entered the same day, and Haddix filed a timely notice of appeal on April 24, 1997. In this appeal, Haddix argues that Judge Mihm erroneously granted summary judgment to Playtex on those parts of her complaint which alleged that the Playtex tampons used by Haddix were unreasonably dangerous and caused her to suffer from TSS and asserted that Playtex was strictly liable for her injuries. Haddix alleged that the super-absorbent tampons made by Playtex contained synthetic fiber as well as natural fiber, rendering them more likely to promote the growth of TSS-causing bacteria. With this brief history in mind, we turn to Haddix's contentions.

DISCUSSION

We review the district court's grant of summary judgment de novo. McGinn v. Burlington Northern Ry. Co., 102 F.3d 295, 298 (7th Cir.1996) (citation omitted). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no The parties seem to agree that this products liability case is governed by Illinois law. Illinois has adopted the strict liability formula set forth in Restatement (Second) of Torts § 402A (1965) (hereinafter "Restatement"). Lamkin v. Towner, 138 Ill.2d 510, 150 Ill.Dec. 562, 569-70, 563 N.E.2d 449, 457 (1990). Accordingly, strict liability is imposed on anyone who sells any product in a defective condition unreasonably dangerous to consumers, users, or their property. Martin v. Harrington and Richardson, Inc., 743 F.2d 1200, 1202 (7th Cir.1984); Restatement § 402A. A product may be considered unreasonably dangerous for two reasons: 1) because of a design or manufacturing defect, or 2) because of a failure to warn consumers of a danger posed by the product of which the average consumer would not already be aware. Martin, 743 F.2d at 1202; Lamkin, 150 Ill.Dec. at 569-70, 563 N.E.2d at 457. In her brief, Haddix concedes that the failure to warn prong is inapplicable here, since all failure to warn arguments are preempted in the context of tampon products liability cases by 21 U.S.C. § 360k(a), 1 part of the Medical Device Amendments of 1976 to the Federal Food, Drug, and Cosmetic Act (21 U.S.C. §§ 301 et seq.), and also by corresponding sections of the Code of Federal Regulations (e.g., 21 C.F.R. § 808.1(b)). See Appellant's Brief at 9. Accordingly, we examine Haddix's arguments regarding the design or manufacture of the Playtex tampons.

genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). We view the record and extract all reasonable inferences from it in the light most favorable to the nonmoving party. McGinn, 102 F.3d at 298 (citation omitted). Only disputes that could affect the outcome of the suit under governing law will preclude an entry of judgment for the moving party. Id.

In order to state a cause of action for strict products liability in Illinois, the plaintiff must show that: 1) an injury resulted from the condition of the product; 2) the condition of the product was unreasonably dangerous; and 3) the condition existed at the time that the product left the manufacturer's control. Hunt v. Blasius, 74 Ill.2d 203, 23 Ill.Dec. 574, 578, 384 N.E.2d 368, 372 (1979) (citing Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965)). Under the Restatement approach to strict liability, a product is considered unreasonably dangerous when it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics." Id. (quoting Restatement § 402A, cmt. i (other citations omitted)). This test has come to be known as the "consumer contemplation" test. Todd v. Societe Bic, S.A., 21 F.3d 1402, 1406 (7th Cir.) (en banc), cert. denied, 513 U.S. 947, 115 S.Ct. 359, 130 L.Ed.2d 312 (1994).

Under the Restatement, the consumer contemplation test was the only standard authorized for determining whether a product was unreasonably dangerous. It was perceived by critics to be too restrictive on manufacturers' liability, however, and soon another test also evolved: the "risk-utility test." 2 Todd, 21 F.3d at 1409. Announced by the California Supreme Court in Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (Cal.1978), the risk-utility test has also been adopted in Illinois. See Todd, 21 F.3d at 1409. As set forth in Lamkin, the test in Illinois is as follows:

A plaintiff may demonstrate that a product is defective in design, so as to subject a 150 Ill.Dec. at 570, 563 N.E.2d at 457 (citing Palmer v. Avco Distributing Corp., 82 Ill.2d 211, 45 Ill.Dec. 377, 412 N.E.2d 959 (1980) and Barker, 143 Cal.Rptr. at 235, 573 P.2d at 453).

retailer and a manufacturer to strict liability for resulting injuries, in one of two ways: (1) by introducing evidence that the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner or (2) by introducing evidence that the product's design proximately caused his injury and the defendant fails to prove that on balance the benefits of the challenged design outweigh the risk of danger inherent in such designs.

The district court, in deciding Haddix's motion for summary judgment, applied the consumer contemplation test but not the risk-utility test. This is because, as the district court properly found, only the consumer contemplation test applies when a simple product which poses an obvious danger is alleged to be defective. Todd, 21 F.3d at 1412; Scaccianoce v. Hixon Mfg. & Supply Co., 57 F.3d 582, 586 (7th Cir.1995) (citing Todd); Scoby v. Vulcan-Hart Corp., 211 Ill.App.3d 106, 155 Ill.Dec. 536, 540, 569 N.E.2d 1147, 1151, appeal denied, 141 Ill.2d 560, 162 Ill.Dec. 509, 580 N.E.2d 135 (1991). In her brief, Haddix implicitly argues that we should overrule Todd, stating that "Lamkin remains good law ... [and thus] Appellant should be able to use both or either test in showing the Playtex tampon to be an unreasonably dangerous product." Appellant's Brief at 10. This argument is not compelling, and we find no reason to revisit the issue decided by an en banc court in Todd. As we stated there:

When given a choice between an interpretation of Illinois law which reasonably restricts liability, and one which greatly expands liability, we should choose the narrower and more reasonable path (at least and until the Illinois Supreme Court tells us differently). The dictum in Lamkin notwithstanding, we may assume, as an Illinois appellate court has done [in Scoby, 155 Ill.Dec. at 540, 569 N.E.2d at 1151], that the Illinois Supreme Court would not apply the risk-utility test to a simple but obviously dangerous product.

Todd, 21 F.3d at 1412. This holding stemmed from Scoby, where the Illinois Appellate Court, Fourth District, found that "[s]omewhere, a line must be drawn beyond which the danger-utility [a.k.a. risk-utility] test cannot be applied." 155 Ill.Dec. at 540, 569 N.E.2d at 1151. The court found that simple products which posed an obvious danger were beyond that line. Id. The Illinois...

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