By Georgia D. Koutouzos, J.D.
The consumer failed to create a fact issue regarding whether the alternative design proffered by his expert wouldn’t have created an equal or greater risk of harm or would have significantly impaired the at-issue product’s usefulness or desirability.
A Michigan man who sustained chemical burns after a bottle of drain cleaner he had just purchased fell off his shopping cart and broke open failed to raise a genuine issue of material fact about whether a reasonable alternative design was available that the drain cleaner maker had not used when fabricating the cap for its product, a federal appellate panel advised, affirming the trial court’s grant of summary judgment favoring the manufacturer in a decision designated as not for publication (Taillard v. Rooto Corp., September 13, 2019, Bush, J.).
A consumer purchased a gallon jug of Rooto Professional Drain Opener, which is comprised of approximately 93 percent sulfuric acid—a highly caustic chemical. The product is packaged in a plastic jug that, in turn, is enclosed in a plastic bag. The jug’s opening is equipped with a two-piece cap assembly consisting of a child-resistant threaded cap and a pressure-sensitive adhesive seal. The adhesive seal is constructed of a foam-like plastic that re-seals the jug when the cap is tightened. There is no breakable seal affixed to the opening.
The consumer placed the jug on the bottom rack of his grocery cart, approximately six inches from the ground. As he and his family exited the store and made their way onto the asphalt parking lot, the jug tipped over the right-side edge of the bottom rack of the cart and struck the asphalt. The cap came off the jug and the product began spilling out of the opening, melting the plastic bag. According to the consumer, some of the product splashed onto the leg and foot of his four-year-old daughter, who was standing near the grocery cart when the jug hit the asphalt. The little girl began crying in pain, so the consumer rushed her back into the store to find a sink and rinse the acid from her leg and foot. While he was doing so, apparently some of the chemical dripped onto his own skin, burning him as well.
The consumer suffered infections as the result of his burns, also suffering a reaction to the antibiotics used to treat those infections that left him with significant choreiform tremors. He sued the drain cleaner’s manufacturer, Rooto Corp., in Michigan federal court, alleging that the jug’s cap design was defective and asserting claims for negligence, gross negligence, and breach of implied warranty.
Rooto moved for summary judgment, arguing that the company was entitled to a presumption of non-liability under Michigan’s products-liability statute because the cap complied with relevant federal standards. The trial court granted the manufacturer’s motion, concluding that the cited Consumer Product Safety Commission regulation was a relevant standard, that the cap complied with that standard, and that the consumer failed to rebut the presumption of non-liability. The consumer appealed the trial court’s decision.
Alternative design. The appeals court explained that it did not need to reach the issue of whether Rooto was entitled to Michigan’s presumption of non-liability, given the consumer’s failure to have raised a genuine issue of material fact with respect to whether a reasonable alternative design was available that the company had not used when fabricating the cap for the drain cleaner.
To establish the existence of a reasonable alternative design, the consumer relied on the testimony of one expert—the former owner of a company that competed with Rooto in the drain-cleaner market. To prepare for his deposition, the expert examined exemplar jugs of Rooto drain cleaner and their caps and seals. He then testified that the product’s cap was unsafe and that his own company used a breakable seal under its caps that he believed resulted in superior protection.
The consumer contended that a breakable seal of the type employed by the expert’s former company would have prevented the harm that occurred. Even assuming that the expert’s deposition testimony created a genuine issue of material fact about whether the breakable seal would have prevented the accident, however, the consumer failed to create a genuine issue of material fact regarding whether the alternative seal would not have created an equal or greater risk of harm or would have significantly impaired the usefulness or desirability of Rooto’s product. And both of those elements must be established by a products-liability plaintiff in Michigan, the appeals court instructed.
For example, the consumer did not explain why the use of the breakable seal would not have led to more accidents than it prevented. The breakable seal proffered by the consumer’s expert could not be re-sealed and, as such, loses its protective power after the first use of the product. By contrast, Rooto’s design includes a foam-like plastic that re-seals every time the cap is tightened on the jug. Although the consumer’s expert testified that his company hadn’t had any failures with its seals and that those seals hadn’t broken when dropped from a height of five feet, he offered no testimony regarding the drop-resistance of his product’s packaging after the jug had been opened and its seal had been broken. For instance, the expert did not testify that his company had ever drop-tested once-opened jugs as opposed to only new, sealed jugs.
Furthermore, another elemental deficiency in the consumer’s case was his failure to have explained why the breakable seal proffered by his expert would not make the product less useful or desirable by, for instance, making new bottles more difficult to open purposely. In sum, the consumer failed to make out a prima facie case of defective design under Michigan law, the appeals court concluded, affirming the trial court’s decision.
The case is No. 18-1738.
Attorneys: Wolfgang Mueller (Mueller Law Firm) for Michael Taillard. William David Howard (William David Howard, Attorney at Law) for Rooto Corp.
Companies: Rooto Corp.
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