Opinion
NO. 1:02-cv-01682-LJM-WTL
March 4, 2004
ORDER ON PLAINTIFFS' PARTIAL MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on the motion of plaintiffs, Gregory Tober, Staci Tober, and Anna Marie Tober ("Plaintiffs"), for summary judgment on some of the defendant's affirmative defenses. Specifically, Plaintiffs seek summary judgment on the affirmative defenses of defendant, Graco. Childrens' Products, Inc. ("Graco"), that Graco. is entitled to a presumption against defectiveness, and that Plaintiffs' claims are preempted by federal law. For the reasons discussed herein, Plaintiffs' motion is GRANTED.
I. BACKGROUND
This case involves the asphyxiation death of Trevor Tober, an eight-month old child. At the time of his strangulation, Trevor was seated in either a "Lil Rocker" or a "Lil Napper" baby swing (the "Swing"); the parties dispute the product's identification. See Compl. ¶ 7; Affidavit of David Galambos ("Galambos Aff") ¶ 10. The Swing's shoulder harness strap strangled Trevor. Compl. ¶ 7. Plaintiffs filed a lawsuit, in Marion County Superior Court, against Graco, the designer and manufacturer of the Swing, alleging defective design, failure to warn and negligent failure to adequately recall the Swing. Id. ¶¶ 13-16.
In its Answer, Graco. asserted the affirmative defense that it is entitled to a presumption that the Swing was not defective because it was in conformity with the recognized state of the art at the time the Swing was designed and manufactured, and because the Swing met all applicable codes, standards and regulations. Answer ¶¶ 3, 4 (citing Ind. Code § 34-20-5-1). Graco. also asserted as an affirmative defense that "Plaintiffs' claims are expressly or implied (sic) pre-empted, either in whole or in part, by federal law and federal regulations." Id. ¶ 10. The case was removed to federal Court on October 31, 2002.
Specifically, Graco. claims that the Consumer Product Safety Act preempts Plaintiffs' claims for failure to warn and failure to adequately recall the Swing. Brief in Response to Plaintiffs' Motion for Partial Summary Judgment ("Defs' Resp.") at 10-18. In 1997, Century Products, Inc. ("Century"), Graco's predecessor, and the Consumer Product Safety Commission ("CPSC") received reports of four incidents in which children were either injured or killed after becoming entangled in the Lil' Napper's harness straps. Galambos Aff. ¶ 14. Century "cooperated" with the CPSC in a recall program that year. Id. The CPSC approved the recall program and "enforced its implementation." Id. ¶ 15. That program included issuing a press release and sending notices of the recall to all retailers of record and to a mailing list of pediatricians. Id. ¶ 18. The CPSC specified the form and content of the recall notices. Id. Century notified recipients it would retrofit the swings with new seat pads and add waist and crotch restraint systems. Id. ¶ 15.
After Graco. acquired Century in 1998, Graco. reissued the recall notices and offered a $30.00 reward for replacing the Lil' Napper harnesses. Id. ¶ 19. This time, Graco. included known thrift or second-hand stores in its mailing. Id. Graco. also reissued the 1997 press release. Id. Neither Century nor Graco. ever recalled the Lil' Rocker.
II. STANDARD
Summary judgment is granted "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." Fed.R.Civ.P. 56(c). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id.
The moving party has the initial burden to show the absence of genuine issues of material fact. See Wollin v. Gondert, 192 F.3d 616, 620 (7th Cir. 1999); Schroeder v. Barth, Inc., 969 F.2d 421, 423 (7th Cir. 1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco. Indus., Inc., 17 F.3d 199, 201 n. 3 (7th Cir. 1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. See Wollin, 192 F.3d at 621.
In considering a summary judgment motion, a court must draw all reasonable inferences "in the light most favorable" to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir. 1992). If a reasonable fact finder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chi. Corp., 975 F.2d 1290, 1294 (7th Cir. 1992). When the standard embraced in Rule 56(c) is met, summary judgment is mandatory. Id.
III. DISCUSSION A. PRESUMPTION AGAINST DEFECTIVENESS
Graco. claims to be entitled to a presumption that the Swing was not defective, because the Swing was in conformity with the recognized state of the art at the time it was designed and manufactured, and because the Swing complied with all applicable codes, standards and regulations. Indiana Code section 34-20-5-1 states:
In a product liability action, there is a rebuttable presumption that the product that caused the physical harm was not defective and that the manufacturer or seller of the product was not negligent if, before the sale by the manufacturer, the product:
(1) was in conformity with the generally recognized state of the art applicable to the safety of the product at the time the product was designed, manufactured, packaged, and labeled; or
(2) complied with applicable codes, standards, regulations, or specifications established, adopted, promulgated, or approved by the United States or by Indiana, or by an agency of the United States or Indiana.
Ind. Code § 34-20-5-1 (West 1999). Graco. has the burden of establishing the presumption by designating admissible evidence that the Swing was in conformance with the state of the art, or that the Swing complied with applicable government standards. See Cansler v. Mills, 765 N.E.2d 698, 705 (Ind.Ct.App. 2002).
Graco. does not specify any applicable government codes, standards, regulations or specifications with which the Swing complied that would establish it is entitled to the presumption. The only evidence Graco designates with respect to the state of the art is that "[o]ther infant swing manufacturers also used a tray and crotch barrier as part of their swing's restraint systems." Defs' Resp. at 8, citing Galambos Aff. ¶ 9. However, conformance with other acceptable manufacturing practices does not establish state of the art. Montgomery Ward Co. v. Gregg, 554 N.E.2d 1145, 1155-56 (Ind.Ct.App. 1990) (holding that "state of the art" does not mean industry custom or practice). "State of the art" refers to the concept of technological advancement, equating to the "`best technology reasonably feasible'" at the time the product was designed or manufactured. Indianapolis Athletic Club, Inc. v. Alco. Standard Corp., 709 N.E.2d 1070, 1074 (Ind.Ct.App. 1999) (quoting Ind. Pattern Jury Instr. No. 7.05(A)). Graco. offered no evidence of what the best feasible technology was for infant swing restraint systems at the time the Swing was designed and manufactured. Nor does Graco. maintain that the Swing utilized the best feasible technology.
Graco. explains that the restraint system technology in infant strollers did not necessarily translate to state of the art for infant swings, as Plaintiffs' suggest. However, it is not Plaintiffs' burden to identify the state of the art. Disputing Plaintiffs' suggestion does not equate to an affirmative showing of the state of the art.
Graco. has not designated evidence that demonstrates a genuine issue of material fact exists as to state of the art or compliance with applicable government standards. Graco. is not entitled to the presumption against defectiveness found in Indiana Code section 34-20-5-1.
B. PREEMPTION
Plaintiffs also seek summary judgment on Graco's affirmative defense that federal law preempts Plaintiffs' failure to warn and negligent recall claims, arguing that nothing in the Consumer Product Safety Act ("CPSA") or the corresponding federal regulations preempts state common law claims. In response, Graco. argues that the CPSA preempts Plaintiffs' state law claims because those claims are an attempt to regulate the same behavior as the CPSA and because state law negligence claims would stand as an obstacle to the accomplishment of Congress' purpose in enacting the CPSA. More specifically, Graco. argues that because it conducted its recall of the Lil' Napper in accordance with the CPSA and with the approval of the CPSC, any finding that Graco. was negligent would directly conflict with the CPSA, 15 U.S.C. § 2064, regarding notice and remedial actions for recalls. Defs' Resp. at 16.
The CPSA contains both a preemption provision and a saving clause. The preemption provision states:
Whenever a consumer product safety standard under this chapter is in effect and applies to a risk of injury associated with a consumer product, no State or political subdivision of a State shall have any authority either to establish or to continue in effect any provision of a safety standard or regulation which prescribes any requirements as to the performance, composition, contents, design, finish, construction, packaging, or labeling of such product which are designed to deal with the same risk of injury associated with such consumer product, unless such requirements are identical to the requirements of the Federal standard.15 U.S.C. § 2075(a). The saving clause states:
Compliance with consumer product safety rules or other rules or orders under this chapter shall not relieve any person from liability at common law or under State statutory law to any other person.Id. § 2074(a).
The Supreme Court's opinion in Geier v. American Honda Motor Co., 529 U.S. 861 (2000), provides guidance for courts considering a preemption provision and saving clause in the same statutory scheme. The Court explained that a saving clause typically excludes common law tort actions from the preemption provision. Geier, 529 U.S. at 868. However, the saving clause does not "bar the ordinary working of conflict preemption principles." Id. at 869. That is, the saving clause of the CPSA saves the tort claims from express preemption, but the Court must still analyze whether conflict preemption exists.
Conflict preemption can occur where it is impossible for a party to comply with both the state and federal law, or where the local law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Id. at 873. Congress' express purposes in creating the CPSA were:
(1) to protect the public against unreasonable risks of injury associated with consumer products; (2) to assist consumers in evaluating the comparative safety of consumer products; (3) to develop uniform safety standards for consumer products and to minimize conflicting State and local regulations; and (4) to promote research and investigation into the causes and prevention of product-related deaths, illnesses, and injuries.15 U.S.C. § 2051(b).
Plaintiffs' common law failure to warn claim does not conflict with the accomplishment of the CPSA's purposes. See Leipart v. Guardian Indus. Inc., 234 F.3d 1063, 1070 (9th Cir. 2000); Colon v. Molina, 136 F. Supp.2d 196, 209 (S.D.N.Y. 2000). In fact, a common law failure to warn claim promotes Congress' goals of product safety and protecting consumers from unreasonable risks of harm. Nor is a tort claim a "regulation" that would conflict with the federal regulations. See Leipart, 234 F.3d at 1070. Graco. does not argue that the failure to warn claim, by itself, interferes with an area exclusively regulated by the federal government or makes it impossible to comply with any specific provision of the CPSA.
However, Graco. does assert that to the extent the failure to warn claim is tied to the Plaintiffs' allegation of negligent recall, it is preempted by the CPSA's express and detailed regulatory scheme for product recalls. The CPSA provides that when a manufacturer has reason to know its product does not meet safety standards, contains a defect, or creates an unreasonable risk of death or injury, it must inform the CPSC. 15 U.S.C. § 2064(b). If the CPSC determines, after an opportunity for a hearing, that the product is hazardous, it will order some form of notice to the public, retailers and/or users of the product. Id. § 2064(c). The CPSC may also order the manufacturer to repair or replace the product. Id. § 2064(d). Graco. claims that the CPSC enforced the implementation of the Lil' Napper recall plan, and specified the form and content of the recall notices. Galambos Aff. ¶¶ 15, 18. Graco. avers it conducted the recall in "cooperation with" the CPSC. Id. ¶ 14. Graco. has not produced evidence that the CPSC specifically ordered the Lil' Napper recall pursuant to 15 U.S.C. § 2064(c), or that the recall was federally mandated in any way.
The court in Avery v. Mapco. Gas Prods., Inc., 18 F.3d 448, 454-55 (7th Cir. 1994), found that under Indiana law the negligent recall claim was a mere restatement of the failure to warn claim, and thus merged with the underlying product liability claims. The plaintiffs in Avery argued that the negligent recall claim did not result from a general duty to warn, but from the defendant's duty, once it voluntarily conducted a recall, to do so reasonably. Avery, 18 F.3d at 454. The Seventh Circuit explained, however, that the plaintiffs did not complain of harm from any affirmative act by the defendant. "In fact, [the defendant] did nothing at all with respect to the [plaintiff's product], and in that sense they were not better nor worse off than if there had been no recall program at all — [the plaintiff's] injury resulted from [the defendant's] failure to warn them about the dangers" of the product. Id. at 455.
Similarly, Plaintiffs in this case do not really complain that Graco's recall, apparently voluntary, of the Lil' Napper was performed negligently. Rather, the root of Plaintiff's claim is that Graco. failed to warn them of the dangers of the Swing they owned. Thus, the negligent recall claim merges with the failure to warn claim and is not preempted by the CPSA for the reasons described above.
At this time, a factual dispute exists as to whether Plaintiffs owned a Lil' Napper or a Lil' Rocker. If it is proven that Plaintiffs owned a Lil' Napper and had reason to know they owned a Lil' Napper, their failure to warn claim becomes weak in light of Graco's evidence it notified users of the danger and recalled the product.
IV. CONCLUSION
For all the reasons discussed herein, Plaintiffs' motion for summary judgment on Grace's affirmative defenses of (1) presumption against defectiveness pursuant to Indiana Code section 34-20-5-1, and (2) preemption by federal law is GRANTED.IT IS SO ORDERED