United States District Court, N.D. Illinois, Eastern Division
November 3, 2004.
BRADLEY HOFFMAN and INGRID HOFFMAN, Plaintiffs,
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.
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®.
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.
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.
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 Report).
Plaintiff or someone authorized to speak for him advised Dr.
Grobman that Plaintiff fell on the concrete steps as a result of
exposure to fumes from a combination of chlorine bleach and drain
cleaner. (Pl. Resp. 1st Adm. ¶¶ 5, 6).
II. LEGAL STANDARD
Summary judgment is appropriate if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law." FED. R. CIV. P. 56(c). A fact is
"material" if it could affect the outcome of the suit under the
governing law; a dispute is "genuine" where the evidence is such that a reasonable jury could return a verdict for the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The burden is initially upon the movant to demonstrate the
absence of a genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). In assessing the movant's
claim, the court must view all the evidence and any reasonable
inferences that may be drawn from that evidence in the light most
favorable to the nonmovant. Miller v. Am. Family Mut. Ins. Co.,
203 F.3d 997, 1003 (7th Cir. 2000). Once the moving party has met
its burden, the nonmoving party "may not rest upon the mere
allegations" contained in its pleading, but rather "must set
forth specific facts showing that there is a genuine issue for
trial." FED. R. CIV. P. 56(e); Becker v. Tenenbaum-Hill Assoc.,
Inc., 914 F.2d 107, 110 (7th Cir. 1990); Schroeder v. Lufthansa
German Airlines, 875 F.2d 613, 620 (7th Cir. 1989). The nonmovant
"must do more than simply show that there is some metaphysical
doubt as to the material facts." Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A product may be unreasonably dangerous if there is a design
defect with the product or if there is a failure to warn
adequately of a danger posed by the product to which the average
consumer would not be aware. See McColgan v. Environmental
Control Systems, 212 Ill. App.3d 696, 699 (1st Dist. 1991).
Counts I and III of Plaintiff's Complaint allege that Defendant failed to warn
adequately and assert liability on the theory of strict liability
and negligence; Counts II and IV adopt the reasoning of Counts I
and III and assert liability for Mrs. Hoffman's loss of
consortium. Counts V and VII allege that Clobber was defectively
designed; Counts VI and VIII adopt the same allegations and
assert liability for Mrs. Hoffman's loss of consortium. Before
the Court is Defendant's Motion for Summary Judgment on all eight
counts of Plaintiff's Complaint.
A. Inadequate Warnings Claims
Defendant argues that the warnings contained on both the
Clobber container and the MSDS accompanying the product were
adequate as a matter of law. The Complaint alleged inadequacies
in the warnings and instructions under both negligence and strict
liability theories. The only difference between the two counts is
that fault is an additional element of a negligence claim. See
Werckenthein v. Bucher Petra Chemical Co., 248 Ill. App.3d 282,
289-90 (1st Dist. 1993). Specifically, the Complaint alleges that
Defendant failed (1) to use warnings that procure the attention
of consumers; (2) to warn of the danger of accidental inhalation;
(3) to warn how to use the product to avoid accidental
inhalation; (4) to instruct to use a breathing apparatus; and (5)
to warn of the potential for brain injury if accidentally
inhaled. Defendant contends that the fact that plaintiff read and
understood the entire label demonstrate that the label did in
fact procure his attention. Further, Defendant claims that the
label did, in fact, warn of the danger of inhaling vapors. Both
the label on the bottle of Clobber and the red tag affixed to its
packaging warned that "INHALING VAPORS OR MIST MAY CAUSE
PERMANENT LUNG DAMAGE." It also instructed users to "provide
sufficient ventilation." Defendant additionally notes that
although the label did not define "sufficient ventilation," the
term, at the very least, would not mean "do absolutely nothing"
as Plaintiff did, failing even to crack a window in his basement
In addition to the tag on the package and the label on the
bottle itself, OSHA requires that a MSDS be distributed along
with each bottle of Clobber sold. The MSDS is a cornerstone of
OSHA standards intended to address comprehensively the issue of
communicating to workers information concerning potential hazards
of chemicals in the workplace and appropriate protective
measures, and to preempt state law on that subject.
29 C.F.R. § 1910.1200(a)(2). The regulation requires manufacturers of
hazardous chemicals to develop a material safety data sheet for
each hazardous chemical product and specifies the information
that such a document must contain. 29 C.F.R. § 1910.1200(g). The
Clobber MSDS did, in fact, refer to a "self-contained breathing apparatus or mask with canister for sulfur dioxide" in a
subsection entitled "Respiratory Protection."
Finally, Defendant insists that they were not required to warn
specifically of the danger of brain damage. Defendant argues that
the warnings were sufficient to alert Plaintiff to the danger of
inhaling fumes from this product, even without threatening the
precise type of injury he suffered. See Wagner v.
Harley-Davidson, Inc., 1995 WL 530658 *3-4 (N.D. Ill. 1995)
(specific reference to possible genital injury not required when
warning of motorcycle collision).
Defendant also contends that Plaintiff's failure to follow
numerous directions precludes recovery for the injuries he
sustained. The Restatement, Torts (Second) § 402A, comment, j
(1965) provides that "where warning is given, the seller may
reasonably assume that it will be read and heeded . . ."
Defendant also cites Hornyak v. National Presto Industries, 1995
WL 239104 *4 (N.D. Ill. 1995) ("having been provided with
instructions as to the safe operation of the FryDaddy, the
plaintiff was injured when he chose to completely disregard both
those instructions and his own common sense. In so doing, Hornyak
proceeded at his own risk.") Specifically, Plaintiff did not heed
the label instruction to use another product called WHAM for
"sluggish drains," which was the condition of the drain after
Plaintiff rodded it. Plaintiff also failed to determine whether
bleach might remain in the line and failed to provide any ventilation. Essentially, Defendant
argues that by disregarding various instructions Plaintiff
proceeded at his own risk. Alternately, Defendant contends
Plaintiff cannot prove causation because given his disregard of
many instructions, it cannot reasonably be inferred that
Plaintiff would have followed his own proffered instructions even
if they had been included on the label. Summary judgment is
appropriate where the undisputed facts show the absence of
evidence sufficient to establish causation, which is an essential
element of a plaintiff's case. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986).
Plaintiff argues that the Court should deny Defendant's motion
because adequacy of warnings is a jury question and not
traditionally subject to summary judgment. Byrne v. SCM Corp.,
182 Ill. App.3d 523, 547 (4th Dist. 1989). Analogizing the case
at bar to Byrne, Plaintiff argues that issues of fact remain
regarding the adequacy of instructions for proper ventilation. In
Byrne, summary judgment for defendant was denied in a strict
products liability case where a painter alleged inadequate
warnings regarding the hazardous effects of inhaling paint while
working indoors and failing to apprise the user of proper forms
and methods of ventilation. The court noted:
The question of whether a product is unreasonably
dangerous because the warnings are inadequate is a
question of fact for the jury. Such warnings may be
found to be inadequate if the warnings fail to
specify the risk presented by the product, if the
warnings are inconsistent with how the product is to
be used, if they fail to advise of the reason for the warnings, or if
the warnings do not reach the foreseeable users.
Byrne, 182 Ill. App.3d at 547 (emphasis in original). The court
held that the warnings were inadequate as they failed to inform
the user of the "precise equipment needed for the user's
protection and the product was dangerous regardless of the
ventilation in the work area." Id. Plaintiff cites the testimony
of two experts who agree that the warnings regarding the dangers
of Clobber were inadequate.
Addressing the issue of the duty to warn about the specific
danger of brain damage, Plaintiff distinguishes two cases cited
by Defendant, Wagner, 1995 WL 530658, and Hornyak, 1995 WL
239104, by noting in those cases that the users knew not only the
scope and manner of injury, but also how to guard against it. In
other words, the danger of injury from a motorcycle collision or
being burned by a deep fryer were both known and understood by
the respective plaintiffs. Plaintiff, however, contends he was
not apprised of the risk of brain damage or how to protect
While adequacy of warnings is generally a question of fact for
a jury, where dispositive facts are undisputed, warnings and
instructions can properly be held adequate as a matter of law.
Hornyak, 1995 WL 239104 at 3. Moreover, the determination of
whether a duty to warn exists is a question of law and not of
fact. Schultz v. Hennessy Industries, Inc., 222 Ill. App.3d 532,
541 (1st Dist. 1991). Here, given the undisputed facts of this
case, the Court concludes that granting summary judgment for the Defendant
Here, the label clearly procured the attention of consumers. In
fact, not only did the label procure Plaintiff's attention, but
it also contained attention grabbing fonts and symbols, like
diagrams of skulls and crossbones as well as large text reading
Case law has established that a product is not required to list
every possible risk associated with its risk. For example,
Defendant cites Wagner v. Harley-Davidson, Inc., 1995 WL 530658
(N.D. Ill. 1995), which supports the notion that a product need
not warn of every conceivable injury. See also Genaust v.
Illinois Power Co., 62 Ill.2d 456, 466 (1976). Here, the label
specifically warned of the danger of accidental inhalation. While
it is true that the label did not cite brain damage as a possible
effect, it did contain warnings of permanent lung damage and
death. Thus, Defendant warned of numerous severe injuries that
could occur if Clobber directions were not followed, and
Plaintiff ignored the warnings. One cannot reasonably infer that
an additional line relating to possible brain damage would have
made all the difference. The Plaintiff further claims that the
labels failed to warn how to avoid accidental inhalation and
failed to instruct to use breathing apparatus are also without
merit and can be disposed of simultaneously. The MSDS did, in
fact, refer to use of a breathing apparatus, which would be one method of avoiding
accidental inhalation. Providing ventilation would also have
reduced this risk. Plaintiff did neither.
Defendant's compliance with federal OSHA guidelines is
particularly relevant to the adequacy of warnings question.
"[E]vidence of a product's compliance with governmental safety
standards is relevant and admissible in a product liability case
on the issue of whether a defect in the product is unreasonably
dangerous." Proctor v. Davis, 275 Ill. App.3d 593, 604 (1st Dist.
1995). In particular, OSHA has detailed requirements for
information to be contained in the MSDS for every hazardous
chemical, and since none of the facts demonstrate a failure to
comply with those requirements, the warnings are adequate as a
matter of law.
Additionally, a duty to warn is imposed only where the injury
suffered by the plaintiff was foreseeable by the defendant.
Schultz, 222 Ill. App.3d at 541. Foreseeability is established by
a determination of what is "objectively reasonable" to expect,
not merely what might conceivably occur. Id. Thus, an injury is
foreseeable it if is "objectively reasonable" to expect the user
of the product to be injured in the manner in which the plaintiff
was injured. Id. None of the facts here indicated that Defendant
knew Clobber could cause brain damage, nor did they suggest that
such a warning would have altered Plaintiff's actions in any way. For the foregoing reasons, the Court grants summary judgment in
favor of the Defendant on Counts I, II, III, and IV, relating to
the alleged inadequacies of warnings.
B. Defective Design Claims
Defendant has also moved for summary judgment on all counts
relating to defective design. In essence, Plaintiff claims that
the use of sulfuric acid in Clobber (1) created an unreasonably
dangerous condition that would not be contemplated by an
"ordinary professional consumer"; (2) caused the product to fail
to perform as safely as an "ordinary professional consumer" would
expect when used in a reasonably foreseeable manner; and (3)
created an unreasonably dangerous condition that outweighs the
benefits of the product.
Two tests have been generally endorsed for determining
liability for defective product design, the first of which is
called the "consumer contemplation test." This test asks whether
the product was dangerous to an extent beyond that which would be
contemplated by the ordinary consumer who purchases it, with the
ordinary knowledge common to the community as to its
characteristics. Haddix v. Playtex Family Products Corp.,
138 F.3d 681, 683 (7th Cir. 1998). In Haddix, where a plaintiff
alleged that the use of synthetic fiber in tampons was an
unreasonably dangerous design defect, likely to cause Toxic Shock
Syndrome, the Seventh Circuit noted that the danger of using
tampons was made "obvious" by the warnings of the packages of the risk of Toxic
Shock Syndrome. Id at 685. Defendant asserts that Haddix is
controlling because the many warnings accompanying Clobber
alerted Plaintiff to the extent of the product's dangerousness.
Defendant further argues that Clobber did not fail to perform
as safely as one would expect when used "in a reasonably
foreseeable manner." Defendant again emphasizes that it was
entitled to assume that Plaintiff would follow the directions.
Taylor v. Gerry's Ridgewood, Inc., 141 Ill. App.3d 780, 785 (3rd
Dist. 1986); Restatement, Torts (Second) § 402A, comment, j,
supra; Hornyak, 1995 WL 2391. By his own admission, Plaintiff
knew that Clobber was dangerous, that is should be used very
carefully, and that it was important to read the directions. In
other words, Defendant argues that no "ordinary consumer," let
alone a professional consumer, would expect that a product known
to be dangerous could be used safely without following the
Another test that is useful for determining possible liability
for a design defect is the risk-utility test. Defendant initially
claims that the test is inapplicable to Clobber, under the rule
that claims involving "simple" products, the dangers of which are
obvious, do not fall within the scope of the test. Haddix,
138 F.3d at 684, 686. Whether a product is "simple" is a matter of
law to be decided by the Court. Id. at 684. Defendant submits
that it is intuitively obvious that a liquid like Clobber is a "simple"
product notwithstanding its dangerous nature.
However, even if the risk-utility test were applied, Defendant
insists that summary judgment should be entered in its favor.
Because certain clogged drains can be opened only with chemical
drain cleaners, and sulfuric acid drain cleaner are effective
against a broader range of potentially clogging substances than
other drain cleaners, sulfuric acid is an essential and
irreplaceable component for some circumstances. Moreover, the
Consumer Product Safety Commission has found that sulfuric acid
drain cleaners are safe for use, even by non-professional,
ordinary consumers who follow the manufacturer's directions.
Defendant contends, therefore, that the benefits of using
sulfuric acid in drain cleaners clearly outweighs the inherent
risks of the product, and that the extensive warnings on the tag
and label demonstrate the care Defendant exercised to enable
those who used the product to do so safely. Thus, Defendant
argues that summary judgment should be granted in its favor for
both negligence and strict liability claims of defective design.
Plaintiff asserts that the evidence establishes that
Defendant's warnings of dangerousness and its failure to apprise
consumers of ways to protect themselves, render Clobber a
defective product. Plaintiff also cites the case of Ruggeri v.
Minnesota Mining & Manufacturing Co., 63 Ill. App.3d 525 (5th
Dist. 1978), where the defendant, like Defendant here, argued that product was
not defective because it was sold to professionals rather than
the general public. Id. at 529. The court there held that
product's professional consumer market did not presuppose
knowledge as to dangerousness of the product. Also, "allowing a
user to select the safer of two or more products is not an option
available to the defendant. Rather as a manufacturer, the
defendant is under a duty to manufacture a product which is
`reasonably safe.'" Id.
Plaintiff contends that the evidence, including the affidavits
of two experts which establish the toxic effects of the
Defendant's product, at the very least establishes a question of
fact as to the inadequacy of the warnings and the resultant
defective condition of the Defendant's product.
In accordance with its earlier holding in this Memorandum
regarding the adequacy of Defendant's warnings, the Court
similarly disposes of any alleged defect resulting from an
alleged inadequate warning as a matter of law. Much of the
consumer expectation test is a function of expectations created
by warnings, and since the warnings on Clobber adequately
apprised consumers of the inherent danger of using Clobber, the
product does not defy the expectations of a reasonable consumer.
The issue of whether the consumer is a professional or
non-professional is provided for in the phrase "the ordinary
knowledge common to the community as to its characteristics," and
ultimately irrelevant. The community that buys Clobber happens to consist of professionals, but the
adequacy of the warnings does not turn on this fact in the
Plaintiff's application of Ruggeri is likewise irrelevant.
Defendant did not assert, like the defendant in Ruggeri, that
Plaintiff assumed the risk by choosing the less safe of two
available products. Rather, Defendant argued that Plaintiff
ignored the instruction requiring use of a different product for
the type of clog he was working on. This is not a question of
consumer choice; it is a question of following directions.
Defendant's claim that risk-benefit analysis is inapplicable
because Clobber is a "simple" product is unconvincing. The
detailed use instructions and numerous dangers demonstrate that
the product is not simple in the sense that the tampons in Haddix
were simple. However, Plaintiff provides little or no evidence
suggesting that sulfuric acid is too dangerous to be used in
chemical drain cleaners, while Defendant provides sufficient
evidence of the benefits of using sulfuric acid in chemical drain
cleaners. The fact that the Consumer Product Safety Commission
has found sulfuric acid drain cleaners safe for use is especially
compelling. The Consumer Product Safety Commission is better
equipped than this Court to decide whether the benefits of a
component like sulfuric acid outweigh the inherent dangers of
such a component. Ultimately, the Plaintiff's design defect claims are simply
another manifestation of his inadequate warning claims, and as
such must fail. Accordingly, the Court grants summary judgment in
favor of Defendant on Counts V, VI, VII, and VIII.
For the reasons set forth above, the Defendant's Motion for
Summary Judgment is GRANTED.
IT IS SO ORDERED.
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