Messer v. Amway Corp.
| Citation | 210 F.Supp.2d 1217 |
| Decision Date | 13 June 2002 |
| Docket Number | Civil Action No. 01-2264-KHV. |
| Parties | Brenda MESSER, Plaintiff, v. AMWAY CORPORATION, Defendant. |
| Court | U.S. District Court — District of Kansas |
Elizabeth Drill Nay, Robert W. Tormohlen, William H. Meyer, Lewis, Rice & Fingersh, L.C., Kansas City, MO, for Brenda Messer.
Hal D. Meltzer, Shawn M. Rogers, Baker, Sterchi, Cowden & Rice, L.L.C., Overland Park, KS, for Amway Corp.
MEMORANDUM AND ORDER AND ORDER TO SHOW CAUSE
Under theories of negligence and strict liability, plaintiff alleges that Amway Corporation ("Amway") is liable for injuries which she sustained while using Power Off Heavy Duty Stripper Concentrate. This matter is before the Court on Defendant Amway Corporation's Motion For Summary Judgment (Doc. # 39) filed February 5, 2002. For reasons stated below, the Court sustains in part Amway's motion.
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiff.
Plaintiff sustained injuries while she was cleaning floors with Amway's Power Off Heavy Duty Stripper Concentrate ("Power Off Concentrate") at Salon Kalibre, a commercial business in Olathe, Kansas. Lisa White, who apparently worked at Salon Kalibre, had previously purchased both Power Off Concentrate and Power Off Floor Stripper, a pre-diluted ready-to-use version of the same product which Amway also manufactured. On March 22, 1997, White purchased a two and a half gallon container of Power Off Concentrate from Gwen Farrell, an independent Amway business owner.1 Farrell normally receives her Amway products at EDI, a warehouse which is run by Mitchell & Associates, an Amway distributor.2 Before she used it the following day, White read and understood the label on the container.3
On March 23, 1997, plaintiff, White and Jeremy Graves were cleaning Salon Kalibre. White prepared the stripping solution either by using a bucket and a measuring cup to combine three gallons of water and one cup of Power Off Concentrate or by pouring three gallons of water and one cup of Power Off Concentrate on the floor.4 After White prepared the initial solution, she added Power Off Concentrate and water by pouring them on the floor. For over an hour, plaintiff and Graves kneeled in a diluted solution of Power Off Concentrate and cleaned the floor with scouring brushes.5 Plaintiff did most of the scrubbing, but White and Graves also scrubbed on their hands and knees. Plaintiff knew that Power Off Concentrate had been mixed with water and shortly after she started stripping the floor, she noticed that her clothes were getting wet and pressing against her skin. After she finished cleaning the floor, her knees were discolored and burning and she decided to go the emergency room.
Lisa White asked her husband, Scott White, to cut the label off the Power Off Concentrate container. He removed from a container a label with the words "Amway Power Off."6 Scott White gave the label to plaintiff and Lisa White, who took it with them to the Emergency Room at Olathe Medical Center. Scott White believes that the label had blue and white on it. Plaintiff believes that the label was red, white and black, like other Power Off Concentrate labels that she has seen since that time.
Plaintiff did not read the "Amway Power Off" label until she was in the car on the way to the hospital. The label that plaintiff read on the way to the hospital did not include the word "danger." Also, it did not list sodium metasilicate, ethanolamine, surfectants or any other ingredients. It did instruct users to wear rubber gloves and warned that the product could cause minor skin irritation. At her deposition, Amway produced the label which it attached to Power Off Concentrate in 1997; that label "tells a lot more" than the "Amway Power Off" label which plaintiff read on March 23, 1997. Messer Deposition (Exhibit F) in Amway's Summary Judgment Exhibits (Doc. # 41) at 141.
Lisa White or plaintiff gave the label to hospital personnel. According to White, a nurse held the label with rubber gloves and stated White Deposition (Exhibit C) in Amway's Summary Judgment Exhibits (Doc. # 41) at 30:6-8. The hospital kept the label and did not attach it to plaintiff's medical records or mention it in the records of plaintiff's emergency room visit.7 The "Amway Power Off" label has not been produced in this litigation, but Amway has produced copies of the label which it attached to two and a half gallon containers of Power Off Concentrate containers in 1997. Amway's label does not match the label which plaintiff, Lisa White and Scott White have described.
Plaintiff had blisters on her hands, and the burns to her knees were so serious that her medical treatment ultimately included skin grafts.
Amway Corporation began selling Power Off Concentrate and Power Off Floor Stripper, the pre-diluted ready-to-use product, in 1987. From 1990 to 1996, Amway sold 42,864 containers of Power Off Concentrate. Between January 1, 1997 and the end of March 1997, Amway sold 1,471 more containers of Power Off Concentrate.
Independent Amway distributors, such as EDI, may obtain Amway product literature that explains if and when a Material Safety Data Sheet ("MSDS") should be provided to customers.8 Amway's "Business to Business Portfolio," which is available to distributors upon request, includes a MSDS for each of Amway's commercial products.9 The portfolio specifically discusses the OSHA requirements with regard to Material Safety Data Sheets and how the OSHA regulations pertain to commercial customers. Although EDI did not receive product brochures unless it ordered them from Amway, it had ordered and received the "Business to Business Portfolio" in October 1996 and January 1997. In October 1996 and January 1997, it had also received Commercial Product Literature ("Starter") Pack(s) SA-1618, which included the most recent MSDS for Power Off Concentrate.10 The "Business to Business" pamphlets list all Amway products that have and require Material Safety Data Sheets.11 In addition, independent distributors use a Wholesale Price Catalog (SA-13) which includes information on the distributor's obligation to provide Material Safety Data Sheets to commercial customers for Power Off Concentrate and other Amway products. Amway made no substantive revisions to the Material Safety Data Sheets for Power Off Concentrate for 1996 or 1997 and it made no revisions at all regarding usage, medical treatment or health hazards regarding skin or eye contact.
In 1996 and 1997, Amway used one label for 55 gallon containers and another label for two and a half gallon containers of Power Off Concentrate. The label which Amway used on the two and a half gallon containers after March 1995 is red, black and white. It reads as follows:
FOR COMMERCIAL USE ONLY — NOT FOR HOUSEHOLD USE
A heavy-duty, fast-acting stripper which removes the toughest finishes and waxes without ammonia or solvents. Unique patented formula! Specifically designed for commercial use. Effectively strips away finishes. Saves time and labor because less scrubbing is required. Easily handles even the toughest finishes including metal crosslinked.
COMMERCIAL PRODUCTS DIVISION
Mfd. by Amway Corp., Ada, MI 49355 U.S.A.
1995 Power Off Label (Exhibit J) in Amway's Summary Judgment Exhibits (Doc. # 41).
The "Amway Power Off" label that plaintiff read on March 23, 1997 did not resemble this label. Lisa White said that if this label had been on the Power Off Concentrate which she purchased, she would not have used it or let people get it on their skin. If it did get on their skin, she would have made them wash it off immediately. If the warning label had said "Danger, avoid skin contact" or "Danger, corrosive to skin," White would have avoided or tried to avoid letting the product touch her skin. White Deposition in Amway's Summary Judgment Exhibits (Doc. # 41) at 92:13-17.
Prior to plaintiff's injury, Amway had notice of one user who claimed to have been harmed by a Power Off product. On February 15, 1995, Wendi Wilcock reportedly received third degree burns after she used Power Off Floor Stripper, Amway's pre-diluted ready-to-use product. By February 17, 1995, two days later, Wilcock had contacted Amway and...
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