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 ...