Silverstein v. The Procter & Gamble Mfg. Co.

• Decision Date: 30 October 2009
• Docket Number: No. CV 108-003.,CV 108-003.
• Citation: 700 F.Supp.2d 1312
• Parties: Louis SILVERSTEIN and Larry Vinson, Plaintiffs,v.The PROCTER & GAMBLE MANUFACTURING COMPANY, and the Procter & Gamble Distributing, LLC, Defendants.
• Court: U.S. District Court — Southern District of Georgia

700 F.Supp.2d 1312

Louis SILVERSTEIN and Larry Vinson, Plaintiffs,v.The PROCTER & GAMBLE MANUFACTURING COMPANY, and the Procter & Gamble Distributing, LLC, Defendants.

No. CV 108-003.

United States District Court,

S.D. Georgia,

Augusta Division.

Oct. 30, 2009.

COPYRIGHT MATERIAL OMITTED

John C. Bell, Jr., Bell & Brigham, Augusta, GA, for Plaintiffs.

Robert W. Foster, Jr., Taylor Tapley Daly, William H. Latham, Nelson, Mullins, Riley & Scarborough, LLP, Columbia, SC, George R. Hall, Patrick J. Rice, Hull, Towill, Norman, Barrett & Salley, PC, Augusta, GA, for Defendants.

ORDER

LISA GODBEY WOOD, District Judge.

Plaintiffs Louis Silverstein and Larry Vinson brought this case to recover damages for the tooth discoloration and taste impairment that Plaintiffs allegedly experienced after using Crest® Pro-Health™ Rinse mouthwash (“Pro-Health”), a product manufactured and distributed by Defendants. Count One of Plaintiffs' Fourth Amended Complaint alleges that Defendants are liable to Plaintiffs on a strict products liability theory. (4th Am. Compl. ¶ 48-59.) Count Two, entitled “Intentional Misconduct,” alleges that Defendants manufactured, marketed, and sold Pro-Health despite knowledge of its harmful effects. (4th Am. Compl. SI 63.) Plaintiffs have elected to waive their claim under Count Two, however, and proceed solely on the strict liability claim in Count One. (Dkt. No. 161.)

Defendants have moved for summary judgment on all claims asserted by Plaintiff Larry Vinson. Defendants also move that if summary judgment is not granted on all claims, partial summary judgment is appropriate insofar as Vinson alleges that the warning label on Defendants' product was inadequate. (Dkt. No. 116.) This Court GRANTS Defendants' Motion as to the inadequate warning claim. In all other respects, however, the Court DENIES Defendants' Motion for Summary Judgment.

BACKGROUND

Defendants manufacture and distribute Pro-Health. Vinson alleges that after using the product for a week, he experienced a “noticeable difference” in his sense of taste: food did not “taste as sweet or as salty.” (Vinson Dep. 26.) Vinson examined the inside of his mouth and allegedly discovered staining on his teeth and discoloration of his tongue. ( Id. at 25-27.) Despite these symptoms, Vinson continued to use Pro-Health for several weeks. ( Id. at 11, 27, 31.) The staining on Vinson's teeth was eventually removed by his dentist, Dr. William Long, during a regular dental cleaning appointment. ( Id. at 59.) Vinson's sense of taste returned to normal after he ceased using Pro-Health. ( Id. at 39.)

According to Vinson, Pro-Health caused his temporary tooth discoloration and taste impairment. Vinson further alleges that the warning label on the Pro-Health bottle is inadequate because it does not warn of the potential side effects associated with the product's active ingredient, cetylpridinium chloride (CPC). Vinson seeks damages for his bodily injuries, attorneys fees, costs, and punitive damages.

DISCUSSIONI. SUMMARY JUDGMENT STANDARD

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In ruling on a motion for summary judgment, the court must view the evidence and any inferences that may be drawn in the light most favorable to the nonmovant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the nonmovant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

II. STRICT LIABILITY

Vinson seeks to recover from Defendants under a theory of strict liability. Because this action is based on diversity of citizenship, Georgia's substantive law applies. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Georgia law, the manufacturer of a product sold as new is strictly liable to an individual who is injured by the product. O.C.G.A. § 51-1-11(b). However, there can be no recovery unless the manufacturer's product can be shown to be the proximate cause of the alleged injuries. Talley v. City Tank Corp., 158 Ga.App. 130, 135, 279 S.E.2d 264, 269 (1981); see also Powell v. Harsco Corp., 209 Ga.App. 348, 350, 433 S.E.2d 608, 610 (1993) (“Whether proceeding under a strict liability or negligence theory, ‘proximate cause’ is a necessary element of [the plaintiff's] case.”).

A. “Injured by the Product”

Defendants argue that Vinson's strict liability claim cannot survive summary judgment because Vinson failed to offer any evidence that he suffered a compensable injury resulting from his use of Pro-Health. Based upon the evidence submitted, a jury would be entitled to find otherwise. Although the tooth discoloration and taste impairment that Vinson experienced were admittedly mild and impermanent, the physical harms Vinson alleges are still cognizable injuries permitting recovery in tort.

To recover in tort under Georgia law, a plaintiff must show that he has suffered injury to either person or property. Pickren v. Pickren, 265 Ga.App. 195, 195, 593 S.E.2d 387, 388 (2004). Even a slight injury may sustain tort recovery, provided the plaintiff “manifest[s] physiological symptoms in connection with the defendant's alleged tortious act.” Parker v. Brush Wellman, Inc., 377 F.Supp.2d. 1290, 1297 n. 5 (N.D.Ga.2005) (citing Chambley v. Apple Rests., Inc., 233 Ga.App. 498, 499, 504 S.E.2d 551, 553 (1998)). Further, a physical injury does not have to be permanent for a plaintiff to recover damages. Sam Finley, Inc. v. Russell, 75 Ga.App. 112, 117, 42 S.E.2d 452, 455 (1947).

Here, Vinson alleges that he did “manifest physiological symptoms” after using Defendants' product: his teeth and tongue became darker in color and his sense of taste became less acute. Thus, Vinson has offered evidence that he suffered a compensable injury resulting from his use of Defendants' product. That the harm Vinson experienced was only temporary does not preclude his recovery in tort. Sam Finley, 75 Ga.App. at 112, 42 S.E.2d 452.

Nevertheless, Defendants argue, “[w]here evidence as to the amount of damages is merely speculative, summary judgment is appropriate.” Lay Bros., Inc. v. Golden Pantry Food Stores, Inc., 273 Ga.App. 870, 875, 616 S.E.2d 160, 165 (2005). Defendants' reliance on Lay Bros., however, is misplaced. Lay Bros. involved a breach of contract, not a personal injury tort. Id. at 870-71, 616 S.E.2d 160. In personal injury actions, the sole measure of damages for the physical suffering and inconvenience of the plaintiff is the “enlightened conscience of fair and impartial jurors.” Stubbs v. Harmon, 226 Ga.App. 631, 633, 487 S.E.2d 91, 93-94 (1997). Thus, Defendants are not entitled to summary judgment merely because Vinson has not proffered evidence of monetary damages stemming from his alleged tooth discoloration and taste impairment.

B. Proximate Cause

Defendants also argue that summary judgment is appropriate because Vinson is unable to establish that Pro-Health was the proximate cause of his alleged injuries. Specifically, Defendants contend that Vinson has failed to offer any expert evidence that would allow a reasonable jury to find, to a reasonable degree of medical probability, that Vinson's alleged injuries were caused by his use of Pro-Health. See Wilson v. TASER Int'l, Inc., 303 Fed.Appx. 708, 715 (11th Cir.2008) (unpublished opinion).

Under Georgia law, proof of causation in strict products liability cases generally requires reliable expert testimony. Rodrigues v. Georgia-Pacific Corp., 290 Ga.App. 442, 444, 661 S.E.2d 141, 143 (2008). Expert testimony may not be required in “simple” defect cases. SK Hand Tool Corp. v. Lowman, 223 Ga.App. 712, 712-15, 479 S.E.2d 103, 105-07 (1996). However, if the inference that the defendant's product caused the plaintiff's injury is not a “natural inference that the juror could make through human experience .... medical expert testimony [is] essential to prove causation.” Allison v. McGhan Med. Corp., 184 F.3d 1300, 1320 (11th Cir.1999).

Courts have generally found that expert medical testimony is required to show causation where the plaintiff manifests unexpected physiological symptoms after using or otherwise encountering the defendant's product pursuant to the product's intended use. See, e.g., Allison, 184 F.3d at 1320 (expert testimony required to show that breast implants can cause systemic disease); Leathers v. Pfizer, Inc., 233 F.R.D. 687, 701 (N.D.Ga.2006) (expert testimony required to show that cholesterol medication Lipitor could cause extreme fatigue and muscle pain). Here, the inference that Pro-Health could cause consumers to experience tooth discoloration and taste impairment is “not a natural inference that a juror could make through human experience.” Allison, 184 F.3d at 1320. Expert medical testimony is therefore “essential to prove causation” in this case. Id.

Georgia law requires that an expert “state an opinion regarding proximate cause in terms stronger than medical possibility, i.e., reasonable medical probability or reasonable certainty.” Ambling Mgmt. Co. v. Purdy, 283 Ga.App. 21, 29, 640 S.E.2d 620, 627 (2006) (citing Zwiren v. Thompson, 276 Ga. 498, 503, 578 S.E.2d 862, 866-67 (2003)). To establish a cause and effect relationship between the plaintiff's use of the defendant's product and the plaintiff's alleged injuries, the plaintiff must offer proof of both general and specific causation. Siharath v. Sandoz Pharms. Corp., 131 F.Supp.2d 1347, 1352 (N.D.Ga.2001); ...