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HOFFMAN v. HERCULES CHEMICAL COMPANY

November 3, 2004.

BRADLEY HOFFMAN and INGRID HOFFMAN, Plaintiffs,
v.
HERCULES CHEMICAL COMPANY, INC., Defendant.



The opinion of the court was delivered by: HARRY LEINENWEBER, District Judge

MEMORANDUM OPINION AND ORDER

Bradley Hoffman (hereinafter, the "Plaintiff") and his wife Ingrid Hoffman bring this product liability action for personal injuries that Plaintiff allegedly sustained from inhaling toxic fumes or vapors emitted by a product known as Clobber, a drain cleaner manufactured by Defendant Hercules Chemical Company. Plaintiff seeks damages for the injury, and Mrs. Hoffman seeks damages for loss of consortium. Specifically, Plaintiff contends that Defendant failed to warn properly consumers of various unreasonably dangerous conditions of Clobber, and that Clobber has a design defect that makes it unreasonably dangerous. Before the Court is the Defendant's Motion for Summary Judgment. For the following reasons, Defendant's Motion is GRANTED.

I. INTRODUCTION

  Plaintiff worked full time as a plumber for approximately 18 years. (Hoffman Tr. 7-8, 13-14). On May 17, the Plaintiff responded to a call for service of a clogged kitchen drain in Libertyville, Illinois. He determined that the clog was in the pipes going through the basement and rodded the line through a clean-out drain in the basement. Rodding is done by a machine that spins in the line, removing the material that had blocked the flow. See id. at 21, 77-78. After Plaintiff rodded the line, it was no longer clogged but was still "sluggish" because grease remained in the line. See id. at 55-56, 63-64. He then decided to use Clobber to remove the remainder of the grease from the line. Clobber is a chemical drain cleaner that contains sulfuric acid. Plaintiff had previously used Clobber on numerous occasions without incident. See id. at 52-54, 101.

  Drains are sometimes clogged where the clog cannot be reached by rodders or similar mechanical equipment; only chemical drain cleaners can open those clogs. (Siegal Aff. ¶ 7). Sulfuric acid is effective against a broader range of potentially clogging substances than other chemicals used in drain cleaners. See id. ¶ 8. Sulfuric acid is also desirable for use in a chemical drain cleaner because it is denser than water and therefore able to sink through the backed up contents of a clogged drain and reach the clog. See id.

  Upon deciding to use Clobber for the remaining grease, Plaintiff left the residence and went to National Plumbing Supply in Libertyville, where he purchased a half gallon of Clobber and then returned to the house. (Hoffman Tr. 64). The Clobber Plaintiff purchased was contained in a plastic jug, and packaged inside a plastic bag closed by a red clip at the top. See id. at 83. As shipped, the Clobber package that Plaintiff identified included a tag affixed to the clip that closed the plastic bag. (Siegal Aff. ¶ 4). Although Plaintiff does not recall the presence of this tag on his bottle of Clobber, (Hoffman Tr. 84), such a tag was recovered from the scene by the Libertyville Fire Department on May 17, 2001. (Def. SOF ¶ 11, n. 6). The tag contained the following warning, printed in red on both sides: "[diagram of skull and crossbones] DANGER [diagram of skull and crossbones] . . . INHALING VAPORS OR MIST MAY CAUSE PERMANENT LUNG DAMAGE." (Exhibit C).

  The bottle itself bore a label with various warnings. Plaintiff testified that he read the entire label before using the product on May 17, 2001 and that he could understand what it said. (Hoffman Tr. 89-90). The front of the Clobber bottle, right below the product name, prominently instructs that the product can be used to "melt grease" and "disintegrate organic matter." (Exhibit C). The label on the jug also contained a panel with the legend, "DANGER [diagram of skull and crossbones] POISON," that stated, "Contains concentrated sulfuric acid," and an adjacent panel with the following instruction (which is found on the last line of the bottom of the side label): Clobber® is for emergency use by PROFESSIONALS to open clogged lines. For sluggish drains, grease traps, septic tanks, cesspools, and odor problems, use Hercules WHAM®.

  (Exhibit C).

 Conversely, WHAM is a non-corrosive, non-caustic, and non-acidic product that dissolves grease in sluggish lines with substantially less risk of injury than that involved in using Clobber. (Siegal Aff. ¶ 6).

  Plaintiff understood the importance of reading and following the directions on the label. (Hoffman Tr. 54-55). Plaintiff testified it was his practice to always read "the whole bottle" before using any chemical. See id. at 55. Plaintiff knew that Clobber contained sulfuric acid and knew that it was dangerous and should be used "very carefully." The label instructed users to "[p]ut on acid-resistant gloves and goggles or face shield" and elsewhere said to "[w]ear heavy acid-resistant gloves and goggles or face shield when handling." (Def. SOF ¶ 18; Exhibit C). When Plaintiff used Clobber on May 17, 2001, he was not wearing a face shield and was wearing his regular work clothes, jeans and shirt and possibly rubber gloves. (Hoffman Tr. 68).

  The label also instructed users to "Read Entire Label and Hercules Material Safety Data Sheet [the "MSDS"] #16 Before Using." (Hoffman Tr. 91-92, 103). Plaintiff does not recall if he read the MSDS for Clobber on that day or at any time previously. MSDS #16 contained "Section 8-Control Measures" that included subsection "Respiratory Protection" that specified "self-contained breathing apparatus or mask with canister for sulfur dioxide." (Siegal Aff.; Exhibit F). Plaintiff used Clobber on May 17, 2001 without a breathing apparatus. (Compl. ¶ 9e). Moreover, the label contained the following warnings and directions:
Contains Concentrated Sulfuric Acid . . . DANGER . . . INHALING VAPORS OR MIST MAY CAUSE PERMANENT LUNG DAMAGE . . . Provide sufficient ventilation to prevent building and inhalation of vapors or mist.
(Exhibit C).
Contrary to the instructions on the label, the clean-out drain into which Plaintiff poured the Clobber was in a basement that had no outside door, closed windows that he did not recall trying to open, and no fan. (Hoffman Tr. 67-68).

  The label also included various instructions regarding the pouring of Clobber down a drain. It advised users to "[s]lowly pour a small amount of Clobber (less than ¼ pint) DIRECTLY INTO DRAIN OPENING. Keep hands and face away from opening . . . If no `bubbling' or backup occurs, add rest of dosage slowly and carefully." (Exhibit C). It is unclear from the record whether Plaintiff poured only half the bottle or the entire bottle into the drain, but it is clear that he used at least two times the recommended initial amount. (Def. SOF ¶ 24; Hoffman Tr. 68-69, 82-83). The label instructs users, after pouring Clobber into a drain to "immediately place inverted dishpan, bucket, or other deep container over drain opening to protect against possible eruption of drain contents and acid." (Exhibit C). Plaintiff had with him only the pipe rodding machine, a drop cloth, a Sawzall that he had used to replace a section of pipe and "could have" had a bucket underneath the drain containing the grease he had removed. (Hoffman Tr. 70). He started seeing "stars and dots" one to four minutes after pouring at least half of the Clobber into the drain. See id.

  The label additionally warns, "Do NOT use Clobber® where other drain chemicals, hot water, or bleach are present." (Exhibit C). However, there were no specific warnings provided with the product that fumes produced from a combination of sulfuric acid and bleach, when inhaled, can cause brain damage. (Siegal Tr. 22-23). Before using Clobber, the Plaintiff asked the occupant of the home whether she had used any drain cleaning chemicals. Even though he knew that laundry appliances in the basement emptied into the drain into which he poured the Clobber, (Hoffman Tr. 65), Plaintiff did not ask whether bleach had been used recently and later admitted that he "never thought of bleach at the time." (Hoffman Tr. 77-78). Many household laundry bleaches consist of a solution of sodium hypochlorite in water; when sodium hypochlorite comes into contact with acid, a violent chemical reaction occurs in which a chlorine is released. (Scholer Dep. 28-29).

  After seeing the "stars and dots," Plaintiff recalls going upstairs, lying on the concrete outside the house, re-entering the house and falling on the floor, nauseated. (Hoffman Tr. 70-72). The elderly woman who resided there told him he had fallen down the steps outside the house. (Hoffman Tr. 72). She was the only person present at 1345 Country Court on May 17, 2001 while Plaintiff was working, and she is since deceased. (Pl. Ans. to 1st Inter. ¶ 5(a)). Plaintiff was transported to a local hospital, where he was found to have sustained a skull fracture among other injuries. (Hoffman Tr. 24). Plaintiff also suffered a subdural hematoma in his brain that required immediate surgery. He suffered from severe dizziness, vomiting, upper back pain and headache and lightheadedness. He had severe swelling, redness, and injury to his eyes and eyelids. (EMS Patient Care ...


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