By Lee Dryden
BridgeTower Media Newswires
DETROIT-A corporation won summary judgment in the U.S. Court of Appeals for the Sixth Circuit over a plaintiff who was burned by an acidic drain opener product.
In Taillard v. The Rooto Corporation, a jug containing the chemical fell out of a shopping cart. When the cap fell off, the substance splashed onto the leg and foot of the plaintiff's 4-year-old daughter. He also was burned by the chemical when assisting his child.
The federal appeals court affirmed the U.S. District Court for the Western District of Michigan in ruling that the plaintiff "failed to create a genuine issue of material fact about whether there was a reasonably safe alternative design available that Rooto should have used."
Judge John K. Bush wrote the opinion, joined by Judge Raymond M. Kethledge. Judge Helene N. White dissented, stating the plaintiff "presented at least some evidence that a reasonable alternative design existed."
The case
The case involves a gallon jug of Rooto Professional Drain Opener, which is made of about 93% sulfuric acid, a highly caustic chemical, the opinion stated. The product is in a plastic jug, which 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," according to the opinion.
Several years prior, the Consumer Product Safety Commission issued a certificate of compliance for the caps after testing.
On June 30, 2016, plaintiff Michael Taillard, who was with his wife and young children, purchased a gallon jug of Rooto drain opener at a northern Michigan grocery store. The jug tipped over the edge of the cart's bottom right rack and struck the asphalt parking lot. The cap came off and the product spilled, melting the plastic bag.
The child began crying in pain when the product splashed on her and the plaintiff rushed into the store to find a sink to rinse the acid. The plaintiff was burned by the chemical, later suffering infections and a reaction to the antibiotics used to treat the infections.
The plaintiff sued Rooto, 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 it was entitled to a "presumption of non-liability under Michigan's products-liability statute because the cap complied with 16 C.F.R. § 1700.15, which Rooto contended is a relevant federal standard triggering the statutory presumption." It also argued that Taillard could not show that the product caused his injuries.
The district court granted Rooto's motion on the first ground, concluding that § 1700.15 was a relevant standard, the cap complied with it, and Taillard failed to rebut the presumption of non-liability.
Sixth Circuit analysis
The federal appeals court panel stated it need not reach whether Rooto is entitled to Michigan's presumption of non-liability.
"Instead, we affirm summary judgment because Taillard has failed to raise a genuine issue of material fact about whether a reasonable alternative design was available that Rooto failed to use when manufacturing its cap," the opinion stated.
To establish that a reasonable alternative design existed, Taillard relied on the testimony of John Magee, the former owner of a company that competed with Rooto in the drain-opener market, according to the opinion.
Magee testified that Rooto's cap is unsafe and stated that his company used a breakable seal under its caps that he believes resulted in superior protection.
Taillard argued that a breakable seal would have "prevented the harm" that occurred in this case, but the panel ruled that he "failed to create a genuine issue of material fact about whether the alternative seal would not have 'creat[ed] equal or greater risk of harm' or 'significantly impair[ed] the usefulness or desirability of' Rooto's product."
"And a products-liability plaintiff in Michigan must establish both of those elements," the panel stated. "For example, Taillard does not explain why the use of the breakable seal would not have led to more accidents than it prevented. The breakable seal cannot be re-sealed and therefore 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."
The court pointed out that Magee offered no testimony regarding the "drop-resistance of his product's packaging after the jug had been opened once and the seal broken."
"Another elemental deficiency in Taillard's case is his failure to explain why the breakable seal would not make the product less useful or desirable by, for instance, making new bottles more difficult to open purposely," the opinion stated. "In sum, Taillard has not made out a prima facie case of defective design under Michigan law."
Dissent
White wrote that she disagrees with the district court's determination that Rooto is entitled to a presumption of non-liability and she would remand for further proceedings.
The § 1700.15 regulation establishes specific standards for the "child-resistant effectiveness" of the packaging of hazardous substances, White wrote.
"It is designed to prevent the type of injury that may occur, for example, when a child is able to open a bottle containing a hazardous product. It does not establish standards intended to prevent a container from spilling its hazardous contents when it is dropped or falls from a modest height, which is what occurred here," the dissent stated.
White disagreed with the majority's statement that Taillard has not explained why the use of the breakable seal would not have led to more accidents than it prevented. She cited Magee's drop tests that showed success with the breakable seal and leaks with the version used by Rooto.
She added that she would not rule on the "adequacy of Taillard's expert's opinion as expressed in the deposition taken by Rooto."
"Although there may be problems with that testimony, I would leave it to the parties and the district court to flesh them out," she wrote.
Published: Wed, Nov 06, 2019
