Quillen v. International Playtex, Inc.

• Decision Date: 24 April 1986
• Docket Number: No. 84-2330,84-2330
• Citation: 789 F.2d 1041
• Parties: Laura QUILLEN, Appellant, v. INTERNATIONAL PLAYTEX, INC., Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 1041

789 F.2d 1041

54 USLW 2612

Laura QUILLEN, Appellant, v.INTERNATIONAL PLAYTEX, INC., Appellee.

No. 84-2330.

United States Court of Appeals Fourth Circuit.

Argued Oct. 8, 1985.

Decided April 24, 1986.

Timothy W. McAfee(Cline, McAfee & Adkins, Norton, Va., on brief), for appellant.

William H. Robinson, Jr.(Lucie Adele Baker, McGuire, Woods & Battle, Richmond, Va., Charles M. McCaghey, Glenn J. Pogust, Olwine, Connelly, Chase, O'Donnell & Weyher, New York City, on brief), for appellee.

Before WIDENER and MURNAGHAN, Circuit Judges, and HAYNSWORTH, Senior Circuit Judge.

WIDENER, Circuit Judge:

This is an appeal by the plaintiff, Laura Quillen, in a diversity action against International Playtex, Inc.(Playtex), for personal injuries allegedly caused by one of Playtex's tampons.Miss Quillen alleged that Playtex negligently manufactured and negligently failed to warn her of the danger of developing toxic shock syndrome (TSS) through the use of Playtex Super Plus Deodorant Tampons.She also claimed that Playtex breached implied and express warranties and that Playtex was strictly liable in tort and for actual and punitive damages.The district court dismissed the strict liability count and, at the end of Miss Quillen's case, directed a verdict for Playtex on the counts for negligent manufacture, express warranty, and implied warranty of fitness for a particular purpose.It submitted to the jury the questions of failure to warn, implied warranty of merchantability, and punitive damages.The jury returned a verdict for Playtex on the remaining theories of liability, and Miss Quillen appealed.Plaintiff raises four separate issues on appeal, and we affirm.

In May 1983, Mrs. Margaret Quillen, Laura Quillen's mother, purchased a box of Playtex Super Plus Deodorant Tampons for her daughter from a store in Kingsport, Tennessee.It was undisputed at trial that the box in question contained an informational insert concerning the dangers of TSS and that Miss Quillen had not read that particular insert, although she had read similar Playtex inserts in the past.¹During her menstrual cycle in May, while at home in Gate City, Virginia, Miss Quillen began experiencing some minor symptoms associated with TSS.These symptoms became progressively worse until her parents brought her to a hospital in Kingsport, Tennessee.Upon examination, she was admitted to the hospital, and Playtex did not subsequently dispute that she did, in fact, have TSS.

At the end of plaintiff's case, Playtex moved for a directed verdict on all counts.During argument on this motion, it was admitted that there was no evidence of negligent manufacture.Miss Quillen contended, however, that there was evidence in the record as to Playtex's negligent failure to test its super absorbent tampons for their potential to cause TSS, and plaintiff sought to amend her complaint to include a negligent testing count.The district court directed a verdict as to the negligent manufacture, express warranty, and implied warranty for a particular purpose counts.Moreover, after consideration of the complaint in chambers, the district court determined that the complaint did not encompass negligent testing and refused to allow amendment of the complaint to incorporate such a count.Subsequently, the court submitted to the jury the issues relating to the negligent warning and implied warranty of merchantability, including the issue of punitive damages.The jury found for Playtex, and Miss Quillen appealed.On appeal, Miss Quillen raises four issues: (1) whether the district court committed reversible error by refusing to allow Miss Quillen to amend her complaint to incorporate a negligent testing count; (2) whether the district court committed reversible error by dismissing Miss Quillen's strict liability count; (3) whether the district court committed reversible error by excluding as irrelevant certain internal memoranda from Playtex's office that Miss Quillen had proffered; and (4) whether the district court committed reversible error in jury instructions.We consider these alleged errors separately below.

Plaintiff first contends that the district court should have allowed her to amend her complaint at the end of her case to add a count of negligent testing.In support of her argument, she relies on Rule 15(b) of the Federal Rules of Civil Procedure.Rule 15(b) provides that a district court shall allow amendment to a complaint if the issues not raised in the pleadings have been tried by the parties' express or implied consent.The district court in this case determined that there was no consent to a trial on the issue of negligent testing, implied or otherwise, and its determination in this regard is subject to reversal on appeal only for an abuse of discretion.Gladhill v. General Motors Corp., 743 F.2d 1049, 1052(4th Cir.1984).It is undisputed that Playtex did not expressly consent to a trial on the issue of negligent testing so the question before us is whether the district court correctly determined that there was no implied consent.We conclude that it did.

The argument goes that by failing to complain that her discovery and presentation of evidence relating to negligent testing exceeded the scope of her complaint, Playtex implicitly consented to a trial on that issue.Thus plaintiff contends the district court had no choice but to grant Miss Quillen's motion to amend her complaint under Rule 15(b).The district court, however, considered these same arguments in deciding to deny the request to amend, and concluded that the evidence that plaintiff had discovered and presented that was relevant to the question of negligent testing primarily went to the pleaded question of punitive damages.It also mentioned warning.Because the complaint did not contain any claim for negligent testing, and because the proof that plaintiff had presented was relevant to the issue of punitive damages, the district court concluded, and we agree, that the defendant would have been caught unaware had the court allowed Miss Quillen to amend her complaint, and required Playtex to defend against a claim for which it was unprepared.The case was simply not tried on that basis.Playtex, for example, did not separately contest that issue although it is obvious it might have.Plaintiff cannot predicate her claim for appellate relief from the district court's determination on this issue on the fact that the evidence in question was relevant to an unpleaded negligent testing claim as well as to the punitive damage issue in the well pleaded claims.As we have held before, a court will not imply consent to try a claim merely because evidence relevant to a properly pleaded issue incidentally tends to establish an unpleaded claim.McLeod v. Stevens, 617 F.2d 1038, 1040-1041(4th Cir.1980);see also6 WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE: CIVILSec. 1493, at 466(1971).Consequently, we conclude that the district court did not abuse its discretion in refusing to allow plaintiff to amend her complaint.

Miss Quillen's second contention is that the district court committed reversible error by dismissing her strict liability count.The argument on this point raises an issue of conflicts of law.In dismissing the strict liability count for failure to state a cause of action, the district court below applied the substantive law of Virginia, which, as Miss Quillen properly acknowledges, has not recognized strict liability in tort.SeeMatthews v. Ford Motor Co., 479 F.2d 399, 401, n. 2(4th Cir.1973).Plaintiff contends that the district court should have applied...