Suarez v. W.M. Barr & Co., Case No. 13 C 4569

CourtUnited States District Courts. 7th Circuit. United States District Court (Northern District of Illinois)
Writing for the CourtMATTHEW F. KENNELLY, District Judge
PartiesJUAN SUAREZ and BILLIE SUAREZ, Plaintiffs, v. W.M. BARR & COMPANY, INC., Defendant.
Decision Date20 October 2015
Docket NumberCase No. 13 C 4569

W.M. BARR & COMPANY, INC., Defendant.

Case No. 13 C 4569


October 20, 2015


MATTHEW F. KENNELLY, District Judge:

Juan and Billie Suarez have sued W.M. Barr & Company, Inc., alleging that Mr. Suarez suffered extensive burns and related personal injuries as a result of a flash fire that occurred when he used a cleaning solvent produced by W.M. Barr. The Suarezes' complaint alleges failure to warn and design defects giving rise to strict products liability, along with claims of negligence and loss of consortium. W.M. Barr has moved to exclude the testimony of two of the Suarezes' expert witnesses and for summary judgment. For the reasons stated below, the Court grants W.M. Barr's motion for summary judgment and denies as moot its motions to exclude expert testimony.


The following facts are not in dispute and can be found in the statements of material facts provided by W.M. Barr and the Suarezes pursuant to Local Rule 56.1(b)(3).

In April 2012, Juan Suarez set about renovating the basement of a property he

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owned and managed as a landlord. After fruitlessly attempting to remove numerous large paint stains from the floor by scraping them with a hand tool, Mr. Suarez resolved to purchase and use a chemical stain remover he had seen advertised on television. That afternoon, he visited a Home Depot store to purchase a one-gallon can of Professional Strength Goof Off, a cleaning solvent manufactured and distributed by W.M. Barr.

Written on the front label of the can of Goof Off that Mr. Suarez purchased were statements that it was a "miracle remover" that "removes the tough stuff," including adhesive and glue, asphalt and tar, and dried latex paint. The back side of the can contained a label that stated, in English and Spanish, that Goof Off "cuts through the toughest spots and stains quickly. It even removes spots that would otherwise ruin your belongings." In both languages, the label on the back of the can indicated that it was "great" for removing latex paint, and it listed ideal uses on "[f]ully cured varnished and oil-based painted surfaces, vinyl baseboard, laminated counter tops, vinyl floors, solid vinyl upholstery, all metals, glass, brick, wood, concrete, grout, vinyl tops, fiberglass, hand tools, [and] most automotive surfaces." The label instructed users who wished to remove stains from concrete to "[a]pply directly. Agitate with brush. Then blot, rinse or power wash residue. Repeat if necessary." See Def.'s App'x Ex. I(a), dkt. no. 53-1, at 1-2.

In addition to being a highly potent stain remover, Professional Strength Goof Off is also a highly flammable chemical mixture. Acetone, its primary active ingredient (constituting 70-80% of the product), has a flash point of zero degrees Fahrenheit and evaporates easily at room temperature. Accordingly, the label on the can of Goof Off

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that Mr. Suarez purchased contained numerous safety warnings. On the front of the can, the label included red text on a yellow background stating in English and Spanish:


Def.'s Rule 56.1 Statement, dkt. no. 48, at 2. One side panel contained further warning language in English, and the other contained the same information in Spanish. The English version of these warnings stated:

Extinguish all flames and pilot lights, and turn off all stoves, heaters, electric motors and all other sources of ignition during use and until all vapors are gone. USE ONLY WITH ADEQUATE VENTILATION TO PREVENT BUILDUP OF VAPORS. Do not use in areas where vapors can accumulate and concentrate such as basements, bathrooms and small, enclosed areas. If using indoors open all windows and doors and maintain a cross ventilation of moving fresh air across the work area. If strong odor is noticed or you experience slight dizziness - STOP - ventilation is inadequate. Leave area immediately. IF THE WORK AREA IS NOT WELL VENTILATED, DO NOT USE THIS PRODUCT. A dust mask does not provide protection against vapors.

Def.'s Rule 56.1 Statement, dkt. no. 48, at 2; Def.'s App'x Ex. I(a), dkt. no. 53-1, at 3-4. The side panels also indicated that Goof Off contains acetone and xylene, substances that make the product highly flammable.

During his deposition, Mr. Suarez testified that he read the Spanish warnings on the front and side of the can before purchasing it. (At one point, he also testified that he could not remember whether he had read the warnings on the side panel.) Mr. Suarez was aware that the product was extremely flammable, and he understood the word "flammable" to mean "something that explodes, that burns." J. Suarez Dep. at 136. Mr. Suarez made an effort to comply with the cautionary instructions on the Goof Off can's

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label. Upon returning to the house, he entered the basement through an outside door, which he left open. He proceeded downstairs to an inside door, which he also left open. Prior to applying the Goof Off, Mr. Suarez opened a window in the basement. During his deposition, however, he indicated that he could not remember whether, prior to applying the product, he had extinguished the pilot lights on two gas-fired water heaters and a gas-fired furnace in the utility room in a separate portion of the basement.

Mr. Suarez's memory of what happened next is somewhat cloudy. It is clear that he poured some portion of the Goof Off onto the concrete floor and began spreading it with a kitchen-style broom, and that a short time later, the room became engulfed in flames. Although Mr. Suarez cannot remember exactly what he saw, he claims that the fire started on the floor where he was sweeping when a spark or flame ignited as a result of static electricity. He sustained significant injuries as a result of the fire, and he incurred substantial medical and treatment costs.

In June 2013, the Suarezes filed this lawsuit, including claims of strict products liability, negligence, and loss of consortium. In their complaint, the Suarezes allege that the product or its warnings or both were defective because the Goof Off caught on fire even though Mr. Suarez followed the label's cautionary instructions by opening the doors and windows to create adequate ventilation. The gist of their claims is that W.M. Barr failed to warn—and a reasonable consumer would not be aware—that even in a properly ventilated room, Goof Off users would need to safeguard against the risk that a static electric spark might cause a fire. The Suarezes seek damages for Mr. Suarez's personal injuries and Mrs. Suarez's loss of consortium.

The Suarezes have enlisted three experts to help make their case. First, Dr.

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Kenneth Laughery has prepared a report in which he opines that the warnings on the Goof Off can, even assuming that they are compliant with federal labeling regulations, are inadequate because they are not well crafted and are unlikely to affect the behavior of a user. He also opines that the warnings are inadequate because they do not apprise users of a non-flammable alternative to Professional Strength Goof Off, namely, Heavy Duty Goof Off, a water-based cleaning solvent that W.M. Barr produces.

Second, electrical engineer Benjamin Miller used a voltage-detecting instrument and an electroscope to determine and report that the broom Mr. Suarez used to spread the Goof Off "was capable of producing a static electric charge while being used and brushing against various materials of the victim's body, clothing or surroundings." Miller Report, dkt. no. 53-6, at 3. Miller has also concluded that it is "likely that any such static charge would discharge to the concrete floor, which provided a 'ground' reference. Static discharge can produce a spark." Miller Report, dkt. no. 53-6, at 3.

Third, the Suarezes have commissioned Steve Chasteen, a Certified Fire Investigator, to provide an expert opinion regarding the cause of the fire. Chasteen relies on two sets of guidelines from the National Fire Protection Association, specifically, NFPA 921: The Guide for Fire & Explosion Investigations (2014) and NFPA 77: Recommended Practice on Static Electricity (2014). Although Chasteen did not conduct fire testing to develop his opinion, he visited the site, conducted a fire scene investigation, and consulted NFPA and other peer-reviewed reference materials. In his expert report, Chasteen states:

[I]t is my conclusion that the most probable and most competent ignition source is a result of a static spark. It is the only competent and reasonable ignition source located within for [sic] the area of origin which is capable and competent enough to raise the first fuel source to its

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ignition temperature on the floor in front of Mr. Suarez.

Chasteen Rep., dkt. no. 53-8, at 14.

W.M. Barr has moved for summary judgment and to exclude the testimony of Miller and Chasteen.


A party is entitled to summary judgment if it shows...

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