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Walker v. Macy's Merchandising Group, Inc.

United States District Court, N.D. Illinois, Eastern Division

December 19, 2017

NORMA WALKER, Plaintiff
v.
MACY'S MERCHANDISING GROUP, INC. WAL-MART STORES, INC., and CHARLES KOMAR & SONS, INC., Defendants.

          MEMORANDUM OPINION AND ORDER

          RUBEN CASTILLO CHIEF JUDGE

         Norma Walker ("Plaintiff) brings this action against Wal-Mart Stores, Inc. ("Walmart"), Charles Komar & Sons, Inc. ("Komar"), and Macy's Merchandising Group, Inc. ("Macy's") (collectively "Defendants"), alleging strict liability, negligence, and breach of warranty claims related to injuries she suffered when her clothing caught fire. (R. 69, Fourth Am. Compl.) Before the Court are Defendants' motions for summary judgment as to all remaining counts against them.[1] (R. 146, Macy's Mot. for Summ. J.; R. 150 Walmart Mot. for Summ. J.; R. 153, Komar Mot. for Summ. J.) For the reasons stated below, the Court grants Walmart's and Komar's motions, but grants in part and denies in part Macy's motion.

         RELEVANT FACTS

         The following facts are undisputed unless otherwise stated. The litigation stems from a Style & Co. Sport brand jacket (the "Jacket") and a Secret Treasures brand pajama top and bottom (the "Sleepwear") that caught fire and injured Plaintiff. (R. 69, Fourth Am. Compl. ¶¶ 21-26.)

         Plaintiff is an Illinois resident. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint Statement of Undisputed Material Facts [hereinafter "SOUMF"] ¶ 1.) Macy's is a New York corporation that sells, among other things, clothing, including the Jacket, which Plaintiff believes she purchased from Macy's.[2] (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 3, 11, 18.) Walmart is a multinational retailer that conducts business in Illinois and sold Plaintiff the Sleepwear. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 2, 9.) Komar is a New York corporation that manufactured the Sleepwear. (Id. ¶¶ 3, 9.)

         Sometime in or before May 2008, Plaintiffs daughter purchased two sets of the same Secret Treasures brand sleepwear in different colors, which included the Sleepwear at issue in this case, and gave them to Plaintiff. (Id. ¶¶ 8, 12, 16-18.) The Sleepwear was made out of a blended fabric consisting of polyester and cotton. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s Statement of Additional Material Facts [hereinafter "SAMF"] ¶ 1.) From the date of purchase until January 14, 2014, Plaintiff wore the Sleepwear frequently without incident. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 23.)

         Plaintiff believes that she purchased the Jacket at Macy's around Christmas in either 2012 or 2013, and she regularly wore the Jacket around the house when she was cold. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 11, 15.) The Jacket was made of an 80% cotton and 20% polyester-blend fabric. (Id. ¶ 23.) Neither the Sleepwear nor the Jacket had any labels or warnings on them related to flammability. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 50; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 46.)

         On January 14, 2014, Plaintiff was cooking breakfast while wearing the Jacket and Sleepwear, and leaned over a lit gas stove to reach for a box of cereal. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 14, 25.) Plaintiff smelled something burning, looked down, and saw fire coming up from the bottom of the Jacket. (Id. ¶ 19.) The Sleepwear did not come into direct contact with the stove, but was later ignited by flames from the Jacket. (Id. ¶¶ 17, 25-27; R. 162, Pl.'s Mem. Opp'n to Walmait at 13.)

         Plaintiff first tried to unzip the Jacket, but was unable to, so she went to her sink, grabbed a hose from the sink, and sprayed water at the flames, which eventually extinguished them. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 21-22.) Plaintiff suffered extensive, third-degree bums to approximately 40% of her body. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 4.) The Sleepwear and Jacket did not have any labels, warnings, or other information on them concerning their flammability although some women's robes and nightgowns have used fire safety warnings since the 1990s. (Id. ¶¶ 50, 52; R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 46, 48.)

         Plaintiffs expert conducted flammability testing on the Sleepwear under a test prescribed by 16 C.F.R. § 1610, which included five tests on the Sleepwear pajama top and five tests on the Sleepwear pajama bottom. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 42-43.) Neither the Sleepwear bottom nor top ignited during any of these tests, which involved applying a flame to each garment for one second. (Id. ¶¶ 41-44.) The expert also conducted flammability testing under 16 C.F.R. §§ 1615-16, a regulation covering flammability standards for children's sleepwear. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 30, 34.) The Sleepwear, however, ignited and failed these tests. (Id.)

         Though the exact Jacket that Plaintiff was wearing during the incident was never located, Plaintiffs expert conducted flammability testing pursuant to the standards in 16 C.F.R. § 1610 on the same fabric from which the Jacket was made. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 22, 36-37, 39.) Pursuant to that testing, the fabric ignited and burned for fifteen seconds. (Id., ¶ 40.) Plaintiffs expert also tested the fabric in accordance with 16 C.F.R. §§ 1615-16, and the fabric failed that test. (R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 29, 32.)

         There have been no other reported incidents involving alleged burn injuries suffered by people claiming to have been wearing the same style jacket as the Jacket or any other Macy's clothing comprised of the same fabric as the Jacket. (R. 164, Pl.'s Resp. to Macy's SOUMF ¶ 49.) With respect to the Sleepwear, neither Walmart nor Komar were aware of any complaints regarding the flammability of the Sleepwear, and both have conducted flammability testing on the Sleepwear. (R. 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶¶ 32-37.)

         The parties do not dispute that most adults understand that their clothing will ignite and burn if exposed to an open flame. (R, 161, Pl.'s Resp. to Walmart's and Komar's Joint SOUMF ¶ 56; see also R. 164, Pl.'s Resp. to Macy's SOUMF ¶¶ 53-54.) Clothing made of nylon or polyester often does not ignite and will self-extinguish or burn so slowly that it causes less injury from bums. (R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 46; see also R. 172, Macy's Resp. to Pl.'s SAMF ¶ 42.) Making the Sleepwear or Jacket out of polyester or nylon fabric would cost roughly the same as using cotton fabric. (R, 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶ 43; R. 172, Macy's Resp. to Pl.'s SAMF ¶ 39.)

         PROCEDURAL HISTORY

         Plaintiff filed this action in the Circuit Court of Cook County, Illinois, on February 28, 2014, and Walmart later removed the action to this Court on the basis of diversity jurisdiction. (R. 1, Notice of Removal; R.l-1, State Court Compl.) On January 11, 2016, Plaintiff filed her fourth amended complaint, which is the operative pleading setting forth her claims. (See R. 69, Fourth Am. Compl.)

         In the fourth amended complaint, Plaintiff asserts the following causes of action against Macy's, Walmart, Komar, and Rex Garments, Ltd. ("Rex"): strict products liability for defective manufacturing (Counts I, VII) and design (Counts II, VIII); strict products liability for inadequate warnings (Counts III, IX); breach of express and implied warranties (Counts IV, V, X, and XI); and negligence (Counts VI and XII). (Id. ¶¶ 27-130.) On July 13, 2016, the Court dismissed the strict liability claims against Walmart (Counts VII, VIII, and IX) pursuant to 735 Ill. Comp. Stat. 5/2-621, an Illinois statute that requires dismissal of strict products liability claims against a non-manufacturer if that party certifies that it is not the manufacturer of the product and names the manufacturer.[3] (R. 121, Min. Entry.) On October 12, 2016, the Court dismissed Rex from the lawsuit based on a lack of personal jurisdiction. (R. 129, Order.)

         The remaining parties-Macy's, Walmart, and Komar-now move for summary judgment. (R. 146, Macy's Mot. for Summ. J.; R. 150, Walmart Mot. for Summ. J.; R. 153, Komar Mot. for Summ. J.) Komar and Walmart represent that on May 28, 2017, they advised Plaintiff of the basis of their motions for summary judgment, and Plaintiff agreed to withdraw her claims against them for defective manufacturing and breach of express warranty. (R. 150, Walmart Mot. for Summ, J. at 1; R. 153, Komar Mot. for Summ. J. at 1.) Walmart and Komar, therefore, move for summary judgment on the only counts that appear to be pending against them: the breach of implied warranty and negligence claims against both Walmart and Komar, and the strict products liability claims for defective design and inadequate warnings against Komar. (R. 150, Walmart Mot. for Summ. J. at 1; R. 153, Komar Mot. for Summ. J. at 1.)

         Walmart argues that the Court should grant summary judgment against Plaintiffs breach of implied warranty claims because the Sleepwear was not unreasonably dangerous or unfit for its ordinary purpose of "wearing while sleeping or lounging at home." (R. 152, Walmart Mem. at 2, 3-5.) Walmart also contends that the Court should grant summary judgment on Plaintiffs negligence claims because Walmart had no duty to sell fireproof or 100% polyester or nylon adult sleepwear, and because the Sleepwear did not proximately cause Plaintiffs injuries. (Id. at 2, 6-8.) Walmart argues that it was the Jacket, not the Sleepwear, that first caught fire and caused Plaintiffs injuries. (Id. at 6-8.) Walmart claims that it satisfied its duty of care because the Sleepwear "passed the only federal flammability standard applicable, 16 [C.F.R. §] 1610." (Id. at 7.) Komar advances the same arguments as Walmart for summary judgment on Plaintiffs breach of implied warranty and negligence claims. (R. 155, Komar Mem. at 2-3, 12-15.)

         Komar also maintains that the Court should grant summary judgment on Plaintiffs strict products liability claim for defective design because the Sleepwear was not unreasonably dangerous beyond the extent contemplated by an ordinary consumer, and because the utility of cotton or cotton-blend sleepwear outweighs any risk that it will catch fire and injure the person wearing it. (Id. at 4-10.) Komar argues that Plaintiffs strict products liability claim for inadequate warnings should suffer a similar fate, because Komar did not have a duty to warn Plaintiff of the Sleepwear's flammability, and, even if Komar did have a duty to warn, Plaintiff fails to advance any evidence that a warning on the Sleepwear would have prevented her injuries. (Id. at 11-12.)

         Plaintiff contends that Walmart's and Komar's arguments miss the mark, because this case concerns not only the aspects of the Sleepwear's design that caused it to ignite, but also aspects of the design that caused the Sleepwear to ignite so easily and produce the fire's intensity and rapid spread. (R. 162, Pl.'s Mem. Opp'n to Walmart at 1-2; see also R. 163, Pl.'s Mem. Opp'n to Komar at 1-2.) Plaintiff also argues that Walmart's and Komar's reliance on federal regulations, including 16 C.F.R. § 1610, is not dispositive; rather, compliance with those regulations is nothing more than evidence that a jury may consider in its determination as to whether the Sleepwear is defective or Defendants were negligent. (R. 162, Pl.'s Mem. Opp'n to Walmart at 2; see also R. 163, Pl.'s Mem. Opp'n to Komar at 2.)

         Macy's, like Walmart and Komar, represents that Plaintiff agreed to withdraw the breach of express warranty and strict liability for defective manufacturing claims against it. (R. 149, Macy's Mem. at 1 n.l.) Therefore, like Komar, Macy's does not address those claims and moves for summary judgment only on Plaintiffs strict liability claims for defective design and inadequate warnings, as well as Plaintiffs breach of implied warranty and negligence claims. (See Id. at 1.) Macy's arguments for summary judgment on the strict liability claims are nearly the same as Komar's, namely, that: the Jacket complied with 16 C.F.R. § 1610; the Jacket was not defectively designed under a consumer-expectation or risk-utility analysis; Macy's had no duty to warn Plaintiff of the Jacket's flammability; and, even if Macy's had a duty to warn, a warning or label on the Jacket would not have prevented Plaintiffs injuries. (See Id. at 2-14.)

         As to Plaintiffs negligence claims, Macy's argues that it did not deviate from any standard of care that other manufacturers followed at the time the Jacket was designed, and that Plaintiff has not put forth any evidence that Macy's knew or should have known that the Jacket was unreasonably dangerous. (See Id. at 15-16.) Macy also contends that it properly tested the Jacket, had no duty to warn Plaintiff about the Jacket's flammability, used safe fabrics for the Jacket, and lacked any duty to conduct surveillance on the Jacket after Macy's sold it to Plaintiff. (Id. at 16-17.) Macy's asserts that, as a result, the Court should grant summary judgment against Plaintiff on any negligence claims based on these theories. (Id.) Finally, Macy's argues that it did not breach any implied warranty of merchantability or fitness for a particular purpose because the Jacket was fit for Plaintiff to wear as clothing in the ordinary course of her life. (Id. at 18-20.)

         In response, Plaintiff argues that, like Walmart and Komar, Macy's fails to address characteristics of the Jacket's design that caused the fire's ease of ignition, intensity, and rapid spread, and that Macy's compliance with federal regulations, including 16 C.F.R. § 1610, cannot provide grounds for granting summary judgment in Macy's favor. (R. 165, Pl.'s Mem. Opp'n to Macy's at 1-2.)

         LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that "[t]he court shall grant summary judgment 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). Summary judgment is proper "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." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). "A genuine dispute as to any material fact exists if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Kvapil v. Chippewa Cty., 752 F.3d 708, 712 (7th Cir. 2014) (citation and internal quotation marks omitted). In deciding whether a dispute exists, the Court must "construe all facts and reasonable inferences in the light most favorable to the non-moving party." Nat'l Am. Ins. Co. v. Artisan & Truckers Cos. Co., 796 F.3d 717, 723 (7th Cir. 2015) (citation omitted).

         Under Rule 56, the movant has the initial burden of establishing that a trial is not necessary. Sterk v. Redbox Automated Retail, LLC, 770 F.3d 618, 627 (7th Cir. 2014). "That burden maybe discharged by showing ., . that there is an absence of evidence to support the nonmoving party's case." Id. (citation and internal quotation marks omitted). If the movant carries this burden, the nonmovant "must make a showing sufficient to establish the existence of an element essential to that party's case." Id. (citation and internal quotation marks omitted). The nonmovant "must go beyond the pleadings (e.g., produce affidavits, depositions, answers to interrogatories, or admissions on file) to demonstrate that there is evidence upon which a jury could properly proceed to find a verdict in [their] favor." Id. (alteration in original) (citation and internal quotation marks omitted). "The existence of a mere scintilla of evidence, however, is insufficient to fulfill this requirement." Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008). "[Speculation and conjecture" also cannot defeat a motion for summary judgment. Cooney v. Casady, 735 F.3d 514, 519 (7th Cir. 2013). In addition, not all factual disputes will preclude the entry of summary judgment, only those that "could affect the outcome of the suit under governing law." Outlaw v. Newkirk, 259 F.3d 833, 837 (7th Cir. 2001) (citation omitted).

         In deciding the motions, the Court cannot weigh conflicting evidence, assess the credibility of the witnesses, or determine the ultimate truth of the matter, as these are functions of the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Omnicare, Inc. v. UnitedHealth Grp., Inc., 629 F.3d 697, 704-05 (7th Cir. 2011). Instead, the Court's sole function is "to determine whether there is a genuine issue for trial." Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249).

         ANALYSIS

         I. Use of Expert Testimony to Defeat Summary Judgment

         As a preliminary matter, Defendants object to Plaintiffs use of expert testimony to oppose summary judgment. (See, e.g., R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 5, 7-11, 16, 20, 23-24, 31, 40, 42, 48-49, 51-52, 59; R. 172, Macy's Resp. to Pl.'s SAMF at 1-3.)[4] Plaintiff may use expert affidavits to oppose summary judgment, provided that the expert testimony is admissible and the expert affidavits set forth facts and "a process of reasoning leading to the expert's conclusion." Berg for Wiesner v. CI Invs., Inc., No. 15 C 11534, 2017 WL 1304082, at *5 (N.D. Ill. Apr. 7, 2017) (citation omitted); see also Rodefer v. Hill's Pet Nutrition, Inc., No. IP 01-123-C H/K, 2003 WL 23096486, at *1 (S.D. Ind. Nov. 7, 2003) ("Where expert opinions are employed to oppose summary judgment, the proffered opinions must be admissible or usable at trial." (internal quotation marks omitted)). For example, an expert affidavit will not provide a basis to defeat summary judgment if the expert fails to identify "any specific facts, " source materials relied upon, or "steps" in her reasoning that led her to her conclusions. Berg, 2017 WL 1304082, at *5.

         "A district court's decision to exclude expert testimony is governed by Federal Rules of Evidence 702 and 703, as construed by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc. 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)[.]" Brown v. Burlington N. Santa Fe Ry. Co., 765 F.3d 765, 771 (7th Cir. 2014). "The rubric for evaluating the admissibility of expert evidence considers whether the expert was qualified, whether his methodology was scientifically reliable, and whether the testimony would have assisted the trier of fact in understanding the evidence or in determining the fact in issue." Hartman v. EBSCO Indus., Inc., 758 F.3d 810, 817 (7th Cir. 2014).

         "A Daubert inquiry is not designed to have the district judge take the place of the jury to decide ultimate issues of credibility and accuracy." Lapsley v. Xtek, Inc., 689 F.3d 802, 805 (7th Cir. 2012). "If the proposed expert testimony meets the Daubert threshold of relevance and reliability, the accuracy of the actual evidence is to be tested before the jury with the familiar tools of 'vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof " Id. (quoting Daubert, 509 U.S. at 596). The Court is given "wide latitude in performing its gatekeeping function and determining both how to measure the reliability of expert testimony and whether the testimony itself is reliable." Id. (citation omitted); see also C, W. ex rel. Wood v. Textron, Inc., 807 F.3d 827, 834-35 (7th Cir. 2015) (ruling that the "district court is the gatekeeper of expert testimony" and that an expert's "reliability is determined on a case-by-case basis"). "The proponent of the expert bears the burden of demonstrating that the expert's testimony would satisfy the Daubert standard." Lewis v. CITGO Petroleum Corp., 561 F.3d 698, 705 (7th Cir. 2009).

         Walmart and Komar do not challenge any expert testimony based on the qualifications of Plaintiffs expert witnesses, but instead focus on the reliability of their methodologies, and whether portions of their testimony are relevant to Defendants' motions for summary judgment. (See R. 175, Walmart's and Komar's Joint Resp. to Pl.'s SAMF ¶¶ 7, 9-11, 20, 33-36, 40, 42, 48-49, 51-52 (challenging expert testimony as "irrelevant, " "speculative, " "without foundation, " "not the product of reliable principles or methods, " or not supported by citations to scientific evidence, facts, or data); R. 172, Macy's Resp. to Pl.'s SAMF ¶¶ 10-11, 24, 27, 31-32, 36, 38, 44, 48.) "Daubert sets forth a non-exhaustive list of guideposts to consult in assessing the reliability of expert testimony: (1) whether the scientific theory can be or has been tested; (2) whether the theory has been subjected to peer review and publication; and (3) whether the theory has been generally accepted in the relevant scientific, technical, or professional community." Am. Honda Motor Co, v. Allen,600 F.3d 813, 817 (7th Cir. 2010). "Trained experts commonly extrapolate from existing data, " and therefore, "[t]he critical inquiry is whether there is a connection between the data employed and the opinion offered; it is the opinion connected to existing data only by the ipse dixit of the expert.. . that is properly excluded under Rule 702." Manpower, Inc. v. Ins. Co. of Penn.,732 F.3d 796, 806 (7th Cir. 2013) (internal citation and quotation marks omitted). "An expert's testimony is not unreliable ...


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