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Swartz v. The Procter & Gamble Manufacturing Co.

United States District Court, E.D. Michigan, Southern Division

May 16, 2018




         In this action, Plaintiff Ariana Swartz alleges that a Tide laundry detergent POD designed and manufactured by Defendants The Proctor and Gamble Manufacturing Company and Proctor and Gamble Distributing, LLC (collectively, “P&G”) “exploded” and “sprayed” its contents onto her clothes and body, causing a chemical burn on her left breast. (First Am. Compl. at ¶¶ 9-12, ECF #6 at Pg. ID 21.) P&G has now moved for summary judgment on all of Swartz's claims (see P&G Mot., ECF #27), and Swartz has moved for partial summary judgment on her claim that P&G failed to warn her of the alleged dangers of using the PODs (see Swartz Mot., ECF #33). For the reasons that follow, P&G's motion is GRANTED IN PART AND DENIED IN PART and Swartz's motion is DENIED.


         In September 2014, Swartz lived with her parents in Detroit, Michigan. (See Swartz Dep. at 6-7, ECF #27-2 at Pg. ID 365.) She used her parents' washing machine, dryer, and laundry detergent to do her laundry. (See Id. at 24-25, Pg. ID 369.)

         Before leaving for work one day, Swartz decided to do a load of laundry. (See Id. at 35, Pg. ID 372.) Instead of using liquid or powder laundry detergent to wash her clothes, Swartz used a Tide POD. (See Id. at 35, Pg. ID 372.) A POD contains concentrated detergent in a dissolvable packet. (See Id. at 27-28, Pg. ID 370.) Swartz obtained the POD from a package of PODs that her mother had purchased from a retail location in or around Detroit. (See Id. at 32-33, Pg. ID 371; see also ECF #46-3 at Pg. ID 1805.)

         After Swartz “pulled [the] Tide POD out of the package, ” it “just popped, ” partially exploding in her hand. (Swartz Dep. at 35, ECF #27-2 at Pg. ID 372.) About one-half of the concentrated detergent in the POD “squirted on [Swartz], [her] neck, [and on her] hands.” (Id.) The detergent also sprayed on her shirt (See id.)

         Following the explosion, Swartz immediately “washed [her] hands” and “wiped [the moisture from the POD] off [her] face, ” neck, and other parts of her body that she believed came into contact with the detergent. (Id. at 36-40, Pg. ID 372-73.) She also changed her shirt, which “had a wet stain on it because of the Tide POD.” (Id. at 36, Pg. ID 372.) But Swartz did not change her bra. (See id.) She left her bra in place because, at that time, she “didn't think that the bra got any [moisture from the POD] on it.” (Id.) She then put the remaining one-half of the exploded POD into the washing machine, started her load of laundry, and left for work. (See id.)

         About two hours later, Swartz began to experience “[e]xtreme discomfort” on her left breast. (Id. at 41, pg. ID 373.) Swartz says that she felt an “itching, a nagging itching, like the worst mosquito bite ever.” (Id.) Swartz then discovered that some of her skin on her breast had “peeled off and stuck to … the inner side of [her] bra.” (Id.) Swartz realized that the concentrated detergent from the POD had seeped through her shirt onto her bra (which, as noted above, she had not changed because she did not believe that it had come into contact with the detergent), and she concluded that the detergent on her bra came into contact with, and a caused a chemical burn on, her breast. (See Id. at 42. Pg. ID 374.) Swartz seeks damages related to that burn in this action.


         Swartz filed her First Amended Complaint on July 7, 2016. (See First. Am. Compl, ECF #6.) She brings the following claims against P&G related to the POD:

• Negligent design/design defect;
• Negligent manufacture/manufacturing defect;
• Failure to warn;
• Breach of express warranty; and
• Breach of implied warranty.

         P&G moved for summary judgment on all of Swartz's claims on December 1, 2017. (See ECF #27.) On December 5, 2017, Swartz moved for partial summary judgment on her failure-to-warn claim. (See ECF #33.) The Court held a hearing on both motions on April 4, 2018. Following the hearing, the parties submitted supplemental briefs. (See ECF ## 46, 47.)


         Both parties argue that they are entitled to summary judgment under Federal Rule of Civil Procedure 56. A movant is entitled to summary judgment under this rule when it “shows that there is no genuine dispute as to any material fact....” SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326-27 (6th Cir. 2013) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)) (quotations omitted).

         When a moving party satisfies its “burden of production” to show that “‘there is an absence of evidence to support the nonmoving party's case' … the nonmoving party then must go beyond the pleadings and by affidavits, or by ‘depositions, answers to interrogatories, and admissions on file, ' designate ‘specific facts showing that there is a genuine issue for trial.'” Moore v. Philip Morris Companies, Inc., 8 F.3d 335, 339 (6th Cir. 1993) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Indeed, the non-moving party “must present significant probative evidence … to defeat [a supported] motion for summary judgment.” Id. at 340. When reviewing this record, “the court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor.” Id. Summary judgment is not appropriate when “the evidence presents a sufficient disagreement to require submission to a jury.” Anderson, 477 U.S. at 251-52.



         P&G moves for summary judgment on all of Swartz's claims on the basis that she cannot prove that her chemical burn was caused by the concentrated detergent from the POD. (See P&G Mot., ECF #27 at Pg. ID 347-51.) The Court disagrees.

         The Michigan Supreme Court's decision in Skinner v. Square D Co., 516 N.W.2d 475 (Mich. 1994), is the seminal decision on tort-law causation principles under Michigan law.[1] In Skinner, the court explained that “[i]t is well settled under Michigan law that a prima facie case for products liability requires proof of a causal connection between an established defect and injury.” Id. at 478. “While the plaintiff bears the burden of proof, the plaintiff is not required to produce evidence that positively eliminates every other potential cause. Rather, the plaintiff's evidence is sufficient if it establishes a logical sequence of cause and effect, notwithstanding the existence of other plausible theories, although other plausible theories may also have evidentiary support.” Id. (internal quotation marks omitted). Simply put, “[t]he plaintiff must present substantial evidence from which a jury may conclude that it is more likely than not, but for the defendant's conduct, the plaintiff's injuries would not have occurred.” Id. at 480.

         The evidence here, when viewed in the light most favorable to Swartz, satisfies this standard. Swartz did not have a burn on her breast when she began doing her laundry. And only one thing happened to her breast between the time she started washing her clothes and the time the burn appeared on her breast roughly two hours later: her breast came into contact with the concentrated detergent from the POD. Under these circumstances, a jury could reasonably conclude, without speculating, that the concentrated detergent from the POD caused the burn on Swartz's breast. Indeed, when the evidence is viewed in the light most favorable to Swartz, it would appear to be mere speculation to conclude that the chemical burn on her breast was caused by anything other than the contact with the concentrated detergent.[2]

         The lack of other reasonable, potential causes for Swartz's chemical burn distinguishes her case from those in which the Michigan Supreme Court has found insufficient evidence of causation. Consider Skinner for instance. In Skinner, the plaintiffs brought a design defect claim against the manufacturer of an “on/off” switch that the plaintiffs' decedent had installed on a metal tumbling machine. The plaintiffs alleged that the switch had a large “phantom zone” that made it appear as if the switch was “off” when it was actually “on.” Id. at 477. The plaintiffs insisted that this defect misled the decedent into electrocuting himself at a time when he mistakenly believed that power to his tumbling machine was “off.” The Michigan Supreme Court held that the plaintiffs failed to present sufficient evidence of causation. The court stressed that while the “plaintiffs' offered scenario [that the defect in the “on/off” switch caused the decedent to be electrocuted] is a possibility … so are countless others.” Id. at 485 (emphasis in original). And the plaintiffs established “at most” that their theory of causation was “equally as probable as [the] other theories….” Id. Thus, plaintiffs' theory of causation was deficient because it rested upon “mere conjecture and possibilities.” Id.

         The Michigan Supreme Court reached the same conclusion in Lowery v. Enbridge Energy Limited Partnership, 898 N.W.2d 906 (Mich. 2017). The plaintiff in Lowery filed an action against an oil company in which he alleged that fumes from an oil spill in a river near his property caused him to suffer certain negative health effects. See Id. at 906-07. The trial court granted the oil company's motion for summary disposition on the ground that the plaintiff could not establish causation, and the Michigan Court of Appeals reversed. See Id. at 906.

         The Michigan Supreme Court then reinstated the trial court's ruling. The court noted that the plaintiff had shown only that (1) before the oil spill, he was not suffering from certain negative health effects and (2) after the spill, he was suffering from the complained-of negative health effects. See Id. But there were other potential causes for the plaintiff's health issues besides the oil spill, including, but not limited to, side effects from plaintiff's medications and plaintiff's history of smoking. See Id. at 921-22 (Markman, C.J., concurring).[3] And the plaintiff did not offer sufficient evidence to establish that his theory of causation - exposure to the fumes - was any more likely or probable than any of the other potential causes. See Id. (Markman, C.J., concurring). Instead, the plaintiff argued only that because his health issues arose after the oil spill, they must have been caused by the spill. See id. at 907. That theory of causation rested upon “the logical fallacy of post hoc reasoning” and amounted to “mere speculation” and “conjecture” that was insufficient to establish causation. Id. at 907 (quoting Skinner, 516 N.W.2d at 480).

         Unlike the plaintiffs in Skinner and Lowery, Swartz has offered more than “post hoc reasoning” here. Her theory of causation does not rest solely on the fact that her burn arose after exposure to the concentrated detergent. Instead, her theory is that a jury may infer causation based upon that temporal sequence and the absence of any other equally plausible causes for her burn. Thus, unlike the causation theories in Skinner and Lowery, Swartz's theory does not rest upon conjecture or speculation and is sufficient to withstand summary judgment.

         P&G offers two counterarguments. First, P&G contends that the report of its dermatology expert, Dr. Jeffery Travers, demonstrates that Swartz's burn could have been caused by factors other than the chemicals in the POD. Thus, P&G argues that there are several equally-plausible theories of causation (just as in Skinner and Lowery). The Court disagrees. In Dr. Travers' “[c]onclusions, ” he opined that other factors - including Swartz's failure to remove her bra earlier and/or improper wound care - may have caused a “worse reaction.” (ECF #27-6 at Pg. ID 474.) But it is one thing to say, as Dr. Travers did, that other factors may have caused a “worse” burn, and quite another to opine that ...

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