Miceli v. Ansell, Inc., 2:98-CV-134-RL.

• Citation: 23 F.Supp.2d 929
• Decision Date: 21 October 1998
• Docket Number: No. 2:98-CV-134-RL.,2:98-CV-134-RL.
• Parties: Karin and John MICELI, Plaintiffs, v. ANSELL, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

23 F.Supp.2d 929

Karin and John MICELI, Plaintiffs, v. ANSELL, INC., Defendant.

No. 2:98-CV-134-RL.

United States District Court, N.D. Indiana, Hammond Division.

October 21, 1998.

Daniel B. Vinovich, Hilbrich Cunningham & Schwerd, Highland, IN, for Plaintiffs.

Martin D. Hoke, Natalie V. Shrader and David P. Burow-Flak, Knight Hoppe Fanning & Knight, Schererville, IN, for Defendant.

ORDER

LOZANO, District Judge.

This matter is before the Court on Defendant, Ansell, Inc.'s, Motion to Dismiss, filed on June 29, 1998. For the reasons set forth below, the motion is DENIED.

BACKGROUND

Karin Miceli ("Karen") and John Miceli (together "Plaintiffs") are citizens of Indiana. On or about May 11, 1997, Plaintiffs allegedly purchased and used a condom manufactured by Ansell, Inc. ("Defendant") in Chicago, Illinois. Defendant is an Alabama corporation with its principal place of business in Alabama. According to Plaintiff, this condom had a hole in it, and as a result Karin became pregnant.

Plaintiffs filed a complaint in this Court against Defendant based on diversity jurisdiction, seeking $300,000 in damages. The first count alleges that Defendant is strictly liable for the damage done to Plaintiffs as a result of the defective condom. The second count alleges that Defendant was negligent in its design, manufacture, packaging, and quality control of the condom. The third and final count alleges breach of warranty of merchantability and fitness for a particular purpose.

DISCUSSION

"Where the parties have not identified a conflict between the two bodies of state law that might apply to their dispute, [the Court] will apply the law of the forum state." Gould v. Artisoft, Inc., 1 F.3d 544, 549 n. 7 (7th Cir.1993) (citing Coleman v. Ramada Hotel Operating Co., 933 F.2d 470, 473 (7th Cir.1991)); Gonzalez v. Volvo of America Corp., 752 F.2d 295, 299 (7th Cir.1985). In their response brief, Plaintiffs question whether Indiana substantive law applies in this case. Plaintiffs state that they live in Indiana, that Defendant is incorporated in Alabama, that the condom was purchased and used in Illinois, and that none of the defects or breaches of duty or warranty took place in Indiana. This is the extent of Plaintiffs' analysis. Plaintiffs do not state that there is a conflict of laws, and cite no authority to support such position. Plaintiffs do not infer any particular conflict of laws with other states, nor do they offer another state's substantive law as an alternative to Indiana's. At one point, Plaintiffs discuss one Alabama case and one Illinois case, in conjunction with a "seminal" Indiana case reaching similar conclusions on wrongful pregnancies. Plaintiffs rely on several Indiana cases and statutes to support all other substantive arguments in their response brief.

Based on Plaintiffs' response brief as a whole, the Court finds that Plaintiffs' comment questioning the application of Indiana substantive law was a half-hearted one. The Court will not make such an argument for them. See Tyler v. Runyon, 70 F.3d 458, 464-65 (7th Cir.1995) (recognizing that courts need not and indeed should not expend limited judicial resources in researching, refining, and otherwise fleshing out arguments that the parties themselves do not adequately support); Rice v. Nova Biomedical Corp., 38 F.3d 909, 917-18 (7th Cir.1994) (suggesting that largely unsupported arguments which evidence a "blunderbuss" approach by counsel do not warrant serious attention from a court), cert. denied, 514 U.S. 1111, 115 S.Ct. 1964, 131 L.Ed.2d 855 (1995). Because the Court finds that Plaintiffs do not contest the use of Indiana substantive law in this case, Indiana substantive law applies.

Under Federal Rule of Civil Procedure 8(a), a complaint should state "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). All of the facts and inferences within the complaint should be treated as true and should be construed in the light most favorable to the Plaintiff. Baxter v. Vigo Cty. School Corp., 26 F.3d 728, 734 (7th Cir.1994); Doherty v. City of Chicago, 75 F.3d 318, 322 (7th Cir .1996). A complaint should not be dismissed "if the Plaintiff could prevail `under any set of facts that could be proved consistent with the allegations.'" Luckett v. Rent-A-Center, Inc., 53 F.3d 871, 873 (7th Cir.1995) (citing Hishon v. King and Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984)).

However, a plaintiff "may not avoid dismissal ... by attaching bare legal conclusions to narrated facts which fail to outline the bases of their claims." Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir.1991). The Court "will not strain to find inferences favorable to the plaintiffs which are not contained within the complaint." GL Indus. of Mich., Inc. v. Forstmann-Little, 800 F.Supp. 695, 698 (S.D.Ind.1991). Further, a Federal Rule of Civil Procedure 12(b)(6) motion may be granted as to part of the complaint, and denied as to the remainder. Trowbridge v. Civil City of South Bend, 1992 WL 559656, *1 (N.D.Ind.1992).

Count I — Strict Liability

Plaintiffs' first count claims that Defendant is strictly liable for the allegedly defective conduct. In Indiana, a claim for strict product liability requires five elements: "(1) that the seller is engaged in the business of selling such a product; (2) that the product was defective and unreasonably dangerous; (3) that the defect existed at the time the product left the defendant's control; (4) that the product was expected to and did reach the consumer without substantial change in its condition; and (5) that the plaintiff's injuries were proximately caused by the defective product." Chambers v. Osteonics Corp., 109 F.3d 1243, 1247 (7th Cir. 1997) (citing Ind.Code § 13-1-1.5-3(a)).¹ Defendant argues that Plaintiffs' complaint should be dismissed because it fails to allege any "physical harm" to Plaintiffs and because the condom, even if defective, was not "unreasonably dangerous."

Defendant insists that pregnancy is not "a physical harm" for purposes of Indiana's products liability statute. According to Indiana Code 34-6-2-105, "physical harm" means "bodily injury, death, loss of services, and rights arising from any such injuries, as well as sudden, major damage to property." Neither party cites any authorities interpreting "physical harm" or "bodily injury" of this statute as including or excluding pregnancy. Nor has the Court been able to find any case law, state or federal, that speaks directly to this issue.

In order to determine whether pregnancy constitutes a "physical harm" as defined by Indiana's products liability statutes, the Court looks to the Indiana state courts for guidance. Indiana courts support analogies between strict liability claims and negligence claims. For example, after property damage was added to the definition of "physical harm," the Indiana Supreme Court noted that, "in the same way that negligent tortfeasors are subject to liability for property damage caused by their negligence, sellers became subject to strict liability in tort for property damage caused by a defective product." Reed v. Central Soya Co., Inc., 621 N.E.2d 1069, 1073 (Ind.1993). This Court shall take its cue from Reed, and draw its analogies from negligence cases similar to Plaintiffs' allegations.

Plaintiffs cite cases of wrongful pregnancy based on medical negligence to support their assertion that pregnancy constitutes a physical harm. See Garrison v. Foy, 486 N.E.2d 5 (Ind.App.1985) (recognizing a wrongful pregnancy claim where a doctor negligently performed a sterilization technique); Cockrum v. Baumgartner, 95 Ill.2d 193, 69 Ill.Dec. 168, 447 N.E.2d 385, 387 (Ill.1983) (consolidated cases where doctors failed to perform a vasectomy and a tubal ligation resulting in pregnancies); Boone v. Mullendore, 416 So.2d 718 (Ala.1982) (doctor failed to remove fallopian tubes even though he represented that he did so and that plaintiff was sterile; plaintiff later became pregnant). The Court notes that Plaintiffs have not filed a claim for wrongful pregnancy, and therefore assumes that Plaintiffs analogize the "harm" resulting from medical malpractice to the "harm" Plaintiffs suffered because of Plaintiffs' allegedly defective product.

Defendant counters that Plaintiffs' analogy is improper. It notes that Garrison stands alone as the only published Indiana case to recognize a "wrongful pregnancy" claim. In Cowe v. Forum Group, Inc., 575 N.E.2d 630 (Ind.1990), the Indiana Supreme Court rejected "wrongful life" as a viable cause of action, and discussed "wrongful pregnancy" in dicta:

An action for "wrongful conception or pregnancy" refers to a claim for damages sustained by the parents of an unexpected child alleging that the conception of the child resulted from negligent sterilization procedures "or a defective contraceptive product." Siemieniec v. Lutheran General Hosp., 117 Ill.2d 230, 111 Ill.Dec. 302, 512 N.E.2d 691, 696 (Ill.1987). This action is recognized in Indiana. [Garrison, 486 N.E.2d 5.]

Cowe, 575 N.E.2d at 633 (emphasis added); accord Bader v. Johnson, 675 N.E.2d 1119 1122 (Ind.Ct.App.1997) (citing Cowe, 575 N.E.2d at 633).

Three important points may be gleaned from this statement. First, the Indiana Supreme Court clearly states its willingness to allow claims for wrongful pregnancy in Indiana. Consequently, Defendant's questioning of whether such claims are viable in Indiana is greatly weakened. Second, the damage alleged in a wrongful pregnancy claim is based on the pregnancy itself. See Garrison, 486 N.E.2d at 7 (stating that damages owed to the parents in a wrongful pregnancy action are "due to the unsuccessful medical procedures and the resulting birth of a child.") (emphasis added). Similar to the elements of wrongful pregnancy, Plaintiffs allege that as a result of Defendant's conduct, Plaintiffs conceived a child. Both wrongful pregnancy claims...