The opinion of the court was delivered by: Reagan, District Judge
On June 8, 2009, Angela Sumner filed this strict liability and negligence lawsuit (dangerous design and failure to warn) against Ja-Ru, Inc., and Wal-Mart Stores, Inc., seeking damages for injuries her son, James Lewis, allegedly sustained as a result of a button battery from a toy "Play Phone" becoming lodged in his nasal passage. The phone was manufactured by Ja-Ru and distributed by Wal-Mart (collectively, "Defendants"). In April, 2010, Defendants filed counterclaims for setoff (Docs. 28, 30).
In July 2010, Defendants filed summary judgment motions (Docs. 39, 40)
and a joint motion to bar Sumner's retained expert (Doc. 41). In
September 2010, the Court, after a hearing, and with careful and
thorough analysis, denied the joint motion to bar and, additionally,
denied Defendants' motions for summary judgment, stating that its
reasonswould be articulated in a future detailed order (Doc. 52).*fn1
The Court now undertakes to articulate those reasons.
II. Factual background*fn2
In March 2008, Sumner purchased two Play Phones for her twin sons, James and Jesse Lewis, who were nearly four years old. The Play Phone is a battery-operated toy that makes sounds when the buttons on the phone are pressed. The battery compartment houses three alkaline-manganese button cell batteries. The battery compartment was covered by a plastic door which was secured with a screw. In April 2008, following a period of illness, James was taken to St. Louis Children's Hospital for examination, and a small battery was discovered lodged in his nasal passage. The battery caused James to suffer a burn in his nasal septum, resulting in surgical removal, further surgeries and a large septal perforation.
On the same day that the battery was discovered in James's nasal passage, Michael Lewis, James's father, found the Play Phone under James's bed. At the time the phone was found, the battery compartment door was about 20 inches away from the phone with the screw that secured it to the phone still in place. The back of the phone was scratched in the area where the battery compartment door would have been secured.
Sumner's retained expert, Bert L. Reiner, a mechanical engineer and manufacturing consultant, examined, evaluated and rendered his opinion on the subject phone and an exemplar of it. Reiner opined that the toy was improperly labeled and posed a potential hazard when subjected to reasonable, foreseeable damage or abuse. He identified problems with the toy's age-grading*fn3 and product design*fn4 , as well as violations of industry standards (because of the wrong age-grading) and federal regulations (the design must be safe for use as intended, plus misuse in a reasonable and foreseeable manner).
Defendants seek summary judgment as a matter of law on Sumner's strict liability and negligence claims. Defendants acknowledge that they placed the Play Phone at issue in the stream of commerce. They contend that James misused, abused, modified and altered the phone in a manner that was not reasonably foreseeable, and that this misuse, abuse, modification and alteration of the phone proximately caused James's injury.
III. Legal Standard Governing Summary Judgment Motions
Summary judgment is appropriate where the pleadings, discovery materials, and any affidavits show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Turner v. The Saloon, Ltd., 595 F.3d 679, 683 (7th Cir. 2010); Durable Mfg. Co. v. U.S. Department of Labor, 578 F.3d 497, 501 (7th Cir. 2009) (citing FED.R.CIV.P.56(c)). AccordAlabama v. North Carolina, -- U.S. --, 130 S. Ct. 2295, 2308 (2010); Levy v. Minnesota Life Ins. Co., 517 F.3d 519 (7th Cir. 2008); Breneisen v. Motorola, Inc., 512 F.3d 972 (7th Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).
In ruling on a summary judgment motion, the district court must construe all facts in the light most favorable to, draw all legitimate inferences in favor of, and resolve all doubts in favor of the non-moving party. National Athletic Sportswear, Inc. v. Westfield Ins. Co., 528 F.3d 508, 512 (7th Cir. 2008). Accord Reget v. City of La Crosse, 595 F.3d 691 (7th Cir. 2010); TAS Distributing Co., Inc. v. Cummins Engine Co., Inc., 491 F.3d 625, 630 (7th Cir. 2007).
What the undersigned may not do in deciding a summary judgment motion is evaluate the weight of the evidence, judge the credibility of witnesses or determine the truth of the matter. The court's only role is to determine whether there is a genuine issue of triable fact. National Athletic, 528 F.3d at 512 (citing Doe v. R.R. Donnelley & Sons Co., 42 F.3d 439, 443 (7th Cir. 1994)).
A factual dispute is genuine "only if a reasonable jury could find for either party," and disputed facts must be outcome-determinative to be "material" and preclude summary judgment. Montgomery v. American Airlines, Inc., 626 F.3d 382, 389 (7th Cir. 2010). See also Van ...