The opinion of the court was delivered by: Judge Edmond E. Chang
MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Ferraro filed this product-liability suit against
Best Buy and Hewlett Packard, seeking damages under common law
theories of strict liability and breach of the implied warranty of
merchantability. R. 31.*fn1 Defendant Hewlett Packard
has moved for summary judgment on both claims. R. 84.*fn2
As explained below, Hewlett Packard's motion for summary
judgment is granted.
On May 17, 2006, Patricia Ferraro was using her Hewlett Packard (HP) laptop when she noticed that the low battery light turned on. R.85 ¶ 2. She then shut the laptop down and plugged the power adapter into the wall. Id. ¶ 3. In this product liability suit, a detailed description of the power adapter is necessary to understand this opinion. The power adapter is shaped like a brick: it is enclosed by black plastic and is 41/4 inches long, 13/4 inches wide, and 1c inches high. R.85, Exh. G at 2. After plugging it in, Ferraro placed the adapter on the left arm of the couch she was sitting on. R. 85 ¶ 4. A laptop power adapter is designed to house a transformer, which converts alternating current power that is supplied by the wall into direct current, which is the kind of energy used by the laptop itself. R. 85, Exh. G at 2. One end of the adapter is permanently connected to a cord that connects with the computer, while the other end has a detachable cord that can be connected to a standard wall outlet. Id. at 2. A label is attached to the bottom of the adapter, but there are no labels anywhere else on the enclosure. Id.
After Ferraro placed the power adapter on the arm of the couch, she fell asleep. R.85¶ 4. When she woke up seven hours later, she noticed that her arm was now resting on the adapter it had fallen off the arm of the couch and ended up in contact with her skin. R.103 at 4. More alarmingly, she noticed that her right forearm was covered with blisters. R.85 ¶ 4.Ferraro was later diagnosed with second- and third-degree burns and now suffers from permanent scarring. R.103 at 4.
Ferraro filed suit against Best Buy, which had sold her the laptop, and against HP, which had manufactured the laptop. Her complaint alleged negligence, strict liability, and breach of implied warranty of merchantability. R.1, Exh. A. The defendants removed the case to federal court. R.1. On May 16, 2008, Ferraro filed an amended complaint, which included only two claims against HP: strict liability and breach of implied warranty of merchantability. R. 31. Discovery followed, including expert discovery offered by both HP and Ferraro. HP has filed a motion for summary judgment on all claims against it (as noted above, supra at 1 n.2, Ferraro agreed to entry of judgment in Best Buy's favor, R. 107).
Summary judgment must be granted if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In determining whether there is a genuine issue of fact, the Court "must construe the facts and draw all reasonable inferences in the light most favorable to the nonmoving party." Foley v. City of Lafayette, 359 F.3d 925, 928 (7th Cir. 2004).
To avoid summary judgment, the opposing party must go beyond the pleadings and "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248. The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Summary judgment will be granted against "a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The non-moving party "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). In other words, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252.
Before analyzing the legal theories, and how they fit (or do not fit) with the facts, it is worth detailing the proffered evidence of the six expert witnesses disclosed in discovery. Ferraro has presented three experts: Peter Poczynok, Nathaniel Johnson, and Dr. Robert Cucin. HP has also presented three experts: Dr. Raphael Lee, Don Galler, and Raina Shah.
Poczynok is a mechanical engineer who is employed by ARRCA, a litigation consulting firm, as a Regional Vice President and Senior Mechanical Engineer. R.85 ¶ 16. For this case, Poczynok examined the power adapter, reviewed deposition transcripts, and read HP manuals. After reviewing all of these materials, he concluded that HP should have either provided a heat warning in the product documentation or on the adapter or alternatively, HP could have designed the adapter differently to reduce the amount of heat it generated. Id. ¶ 17.
Poczynok testified that HP should have foreseen that the power adapter could cause burns on potential users. R.85, Exh. H (Poczynok Dep. at 127 128). He noted that the Safety and Comfort guide included language that implied that HP anticipated situations where the power adapter would not have sufficient air circulation. Id. at 130. According to Poczynok, HP should have placed more warnings in the laptop's manuals and product documentation. Id. at 129 130. Specifically, he notes that there are three places where HP could have warned consumers: in the Getting Started manual, in the Safety and Comfort Guide, and on the adapter itself. R. 85, Exh. G at 3.
Poczynok stated that the warning should "identify the hazard, communicate the consequences of coming into contact with the hazard, provide methodologies for avoiding the hazard, and prescribe countermeasures, if any." Id. Such a warning must be readily visible to the consumer and alert the user to the hazard in time to take "appropriate action." Id. He cited ANSI Z535, a standard used for on-product warnings, as an appropriate standard HP should have followed for an effective warning. Poczynok Dep. at 128 129.
Poczynok also explained that the power adapter also had a design defect. Id. at 139 140. He proposed four different design alternatives. First, instead of placing the transformer in the adapter itself, HP could have designed the laptop so that the transformer would be housed inside the laptop itself instead of being housed in an external power adapter. Id. at 140. Second, the external power adapter could have included an active cooling device (he suggested a fan) in order to vent any excessive heat buildup. Id. Third, the adapter could have included a heat shield. Id. at 140 141. Fourth, HP could have made the box housing the adapter larger, so there would be more room for air inside. That air would serve as a buffer between the transformer and the plastic housing material and therefore reduce the temperature of the adapter. Id. at 141.
Mr. Johnson is an electrical engineer who has worked with transformers and electrical power supplies. His testimony concerned the burn potential of a product and the amount of time it takes to cause a burn. R.85 ¶ 24.
Johnson conducted tests of the power adapter and measured the adapter's surface temperature as time went on. R.85, Exh. I at 3. The adapter was placed on top of two layers of cotton sheet material. Id. Throughout the test, Johnson measured the temperature of the adapter by placing two temperature measurement devices one on top, one underneath on the adapter. Id. Approximately 11/2 -hours into the test, he placed a shop towel over the adapter, and noted the temperature changes. Id. Three hours later, he removed the towel and continued to measure the temperature. Id.
Johnson recorded the temperatures at 11/4 -hour intervals, and observed that the underside of the adapter consistently remained 18E Celsius warmer than the top of the adapter. Id. During the test, the adapter reached 58.5E Celsius after an hour and a half, and 77.2E Celsius after the top was covered with a towel. Id.
From the test results, Johnson derived four conclusions. First, the adapter presented a "severe burn hazard when energized and operating at 95% of full load if the unit is in contact with unprotected skin when the opposite surface is in contact with a normal tabletop with two layers of bed sheet material." Id. He noted that standard practice in the United States is that hot water delivery is limited to 60E Celsius. Id. at 4.
Second, Johnson concluded that when the adapter has no free airflow at both the top and bottom portions of the unit, it presents an extreme hazard. Id. The temperatures reached as high as 77E Celsius which could cause severe burns after a few minutes. Id. Johnson then used a chart used in a British safety standard regarding temperature limits for hot surfaces. Id. He explained that an object that is 74E Celsius is safe for four seconds; 70E Celsius for ten seconds; and 48E Celsius for ten minutes. Id. Based on this chart, Johnson concluded that if the adapter was 58.5E Celsius, it could burn a normal adult's skin within ten minutes. Id.
Third, Johnson concluded that the burns suffered by Ferraro was consistent with how anyone might use the power adapter. Id. He explained that the adapter lacked any markings that warned that the adapter should be used in a way that all surfaces are uncovered and free air could flow all around it. Id. Johnson also explained that it is common practice for consumers to use laptop computers in bed or on a couch, and that a user may easily fall asleep during use. Id. at 5.
Fourth, Johnson suggested that the 6-foot long power cord be shortened, in order to reduce the likelihood of a user coming into physical contact with the adapter. Id. A shorter cord would also reduce the chances of the adapter being subject to restricted airflow. Id. Johnson suggested that the cord connecting to the laptop could be lengthened, to make up for the shortened cord that connects to the wall outlet. Id. He noted that Kensington, an independent power supply manufacturer, makes power adapters with this design. Id.
Dr. Cucin is a plastic surgeon who is board certified in general surgery and plastic surgery. R. 106, Exh. I (Cucin Dep. at 9). Although he does not specialize in a specific area of plastic surgery, he does remedial work for burn victims. Id. at 9 10. Cucin testified that skin begins to burn after it has been placed for fifty minutes on a surface that is 50E Celsius. Id. at 134. He also testified that some burns that occur when the victim is sleeping do not involve the victim being under the influence of drugs (and thus less responsive to pain). Id. at 137. He specifically cited examples of victims who were burned on sleeping pads. Id. at 137. Cucin also indicated that many people consume alcohol or take medications that would affect their pain sensitivity or withdrawal instinct. Id. at 138. Cucin also testified that sometimes, people will incorporate "pain into their dreams and may not wake up from it right away." Id. at 139.
Dr. Raphael Lee is a professor at the University of Chicago who is a board certified surgeon specializing in plastic surgery and burn care. R. 104 ¶ 12; R. 106, Exh. G (Lee Dep. at 4). Lee testified in his deposition that a person, under normal physiological circumstances, would very quickly withdraw their skin from the heat at issue in this case. R.85, Exh. F at 12. He further testified that a skin temperature of 46E Celsius is associated with severe pain and a temperature of 52E Celsius is associated with a second-degree burn injury. Id. ¶ 13.
Lee explained that he ran a test with an exemplar power adapter and a "phantom" human arm to simulate the thermal behavior of human skin and the subcutaneous tissue. Id. ¶ 14. (The phantom arm was comprised of a gel to mimic the thermal behavior of skin. The gel heats more rapidly than a real human forearm, which (from HP's perspective) made the test more conservative in how much time it would take for the power adapter to become painfully hot. R. 85, Exh. F at 7-8.) Lee placed the phantom arm on the power adapter to mimic Ferraro's forearm on the power adapter and raised the temperature to 79E Celsius in order to simulate the worst case scenario. R. 85 ¶ 14. Lee observed that when the phantom arm was placed in contact with the adapter casing, it took 71/2 minutes for the arm surface to reach 46E Celsius.
As a result of the experiment, Lee drew four conclusions. First, by the time the surface temperature reached 46E Celsius, the person would have felt severe pain. Id. Second, under normal physiological conditions, contact with the adapter at 79E Celsius would cause a person to feel tremendous pain within one minute. Id. Third, normal involuntary spinal reflexes would cause withdrawal of the skin from the source of the pain in a matter of seconds. Id. Fourth, Plaintiff Ferraro would have felt severe pain within 5 minutes or less and would have received a deep burn injury to her skin after 10 minutes or more. Id. According to Lee, given how the spinal reflex causes a person to withdraw within seconds of feeling such intense heat, the power adapter was unlikely to cause severe burns under normal physiological conditions. Id.
Don Galler is an electrical engineer retained by HP to examine the adapter to see if it was defective. R. 85, Exh. D. Galler explained, in his report, that the relevant standard for the HP power adapter was UL/IEC (Underwriter's Laboratory / International Electrotechnical Commission) 60950. Id. at 2. HP has placed a UL/IEC 60950 logo on the adapter because it meets an international standard for safety. The standard dictates that the "maximum allowable temperature" at which the "external surfaces of equipment [may] be touched" is 95E Celsius. Id.
Galler tested the adapter by charging a dead battery on a laptop. When he covered the adapter with a piece of cloth, the adapter reached a high temperature of 80E Celsius. Id. Because it never rose above 95E Celsius, Galler concluded, the adapter met the UL/IEC 60950 standard. Galler also presented the UL safety standards for several other products and notes that they range from 85E Celsius to 100E Celsius. Id. From these high temperatures, ...