Good afternoon and hope you have a blessed Sunday. See an extra creditopportunity below worth +10 points. Please email me your answers at
lori.baggot@strayer.edu and remember to provide what you know and understand
about the law specifically. Your answer must include an understanding of privacy
law and a source. This is due by the end of Week 3.
Also, remember that one of the most important stakeholders when facing litigation
and liability is the jury. Thus, “What would a jury think as to how I handle this
situation?”
• Dan’s Dry Cleaner has been in business for 30 years. Dan runs the store and
has three employees. Dan believes one of his employees, Leo, is dealing
drugs from the store.
• Dan sets up a camera in the store hallway next to the bathroom and points it
toward the back door. The back door locks from the outside so he figures if
someone is dealing drugs out back, they would leave the door open, and he
can catch them with the camera.
• One Monday, the camera malfunctions, and falls to the floor. Leo picks up
the camera and hides it in the lady’s bathroom. Dan’s camera videotapes
Bonnie, another employee, washing her hands in the sink.
• Bonnie finds out about the camera and is humiliated. She quits working and
asserts, “I can never use a public restroom again, I am going to be
homebound for the rest of my life.” Bonnie in fact never leaves her home,
develops depression, and commits suicide. Her family sues Dan’s Dry
Cleaner for wrongful death and invasion of her privacy.
• The company comes to you.
Would the family be successful in proving its case as to wrongful death and an
invasion of privacy claim against Dan’s Dry Cleaner, yes or no and why or why
not?
* To successfully sue for a wrongful death cause of action, the plaintiff must
show the following:
1) The death of a human being
2) The death was caused by another’s negligence OR with intent to cause harm
3) Damages to the surviving family or representatives because of the death
* Negligence – A failure to behave with the level of care that someone of ordinary
prudence would have exercised under the same circumstances.
Overview – Primary factors to consider in ascertaining whether the person’s
conduct lacks reasonable care are the foreseeable likelihood that the person’s
conduct will result in harm, the foreseeable severity of any harm that may ensue,
and the burden of precautions to eliminate or reduce the risk of harm. Negligent
conduct may consist of either an act, or an omission to act when there is a duty to
do so.
Four elements are required to establish a case of negligence:
1. The existence of a legal duty that the defendant owed to plaintiff.
2. Defendant’s breach of that duty.
3. Plaintiff’s damages/injuries.
4. Proof that defendant’s breach caused the injury/proximate cause of the
damages/injuries.
Restatement Third of Torts: Liability for Physical Harm § 3 (P.F.D. No. 1, 2005)
Restatement (Second) of Torts § 282 (1965)
Date and Time: Tuesday, January 17, 2023 11:59:00AM EST
Job Number: 188040930
Document (1)
1. Floyd v. Pepperidge Farm, Inc., 581 F. Supp. 3d 1101
Client/Matter: -NoneSearch Terms: deceptive warranty and advertising
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As of: January 17, 2023 4:59 PM Z
Floyd v. Pepperidge Farm, Inc.
United States District Court for the Southern District of Illinois
January 24, 2022, Decided; January 24, 2022, Filed
Case No. 21-cv-525-SPM
Reporter
581 F. Supp. 3d 1101 *; 2022 U.S. Dist. LEXIS 12610 **; 2022 WL 203071
DEBORAH FLOYD, Individually and on Behalf of all
Others Similarly Situated, Plaintiff, v. PEPPERIDGE
FARM, INCORPORATED, Defendant.
Prior History: Kamara v. Pepperidge Farm, Inc., 2021
U.S. Dist. LEXIS 216644, 2021 WL 5234882 (S.D.N.Y.,
Nov. 9, 2021)
Core Terms
crackers, butter, deceptive, warranty, consumers,
Golden, label, injunctive relief, misleading, express
warranty, vegetable oil, motion to dismiss,
merchantability, negligent misrepresentation, ingredient,
allegations, unjust enrichment, implied warranty,
practices, claim for breach, deceptive act, advertised,
damages, golden-hued, substitutes, deceived, omission,
asserts, terms
Case Summary
Overview
HOLDINGS: [1]-The Illinois Consumer Fraud and
Deceptive Business Practices Act claim was dismissed
because
consumers
were
not
deceived
by
representations that the crackers contained butter as it
was the second ingredient on the label, behind only
flour; [2]-The negligent misrepresentation claim was
dismissed because there were no fallacies in the label.
Outcome
Defendant’s motion granted.
LexisNexis® Headnotes
Civil Procedure > … > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State
Claim
Civil
Procedure > … > Pleadings > Complaints > Require
ments for Complaint
HN1[
] Motions to Dismiss, Failure to State Claim
In addressing a motion to dismiss for failure to state a
claim on which relief can be granted pursuant to Fed. R.
Civ. P. 12(b)(6), a district court must assess whether the
complaint includes enough facts to state a claim to relief
that is plausible on its face. Plausibility is not a symptom
for probability in this context but asks for more than a
sheer possibility that a defendant has acted unlawfully.
Civil Procedure > … > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State
Claim
Civil
Procedure > … > Pleadings > Complaints > Require
ments for Complaint
HN2[
] Motions to Dismiss, Failure to State Claim
Courts must approach Fed. R. Civ. P. 12(b)(6) motions
by construing the complaint in the light most favorable to
the non-moving party, accepting as true all well-pleaded
facts alleged, and drawing all possible inferences in the
non-moving party’s favor. Under this standard, a plaintiff
who seeks to survive a motion to dismiss must go
beyond mere labels and conclusions and plead some
facts that suggest a right of relief that is beyond
speculative level.
Antitrust & Trade Law > … > Trade Practices &
Unfair Competition > State Regulation > Scope
Page 2 of 12
581 F. Supp. 3d 1101, *1101; 2022 U.S. Dist. LEXIS 12610, **12610
Antitrust & Trade Law > Consumer
Protection > Deceptive & Unfair Trade
Practices > State Regulation
HN3[ ] Trade Practices & Unfair Competition, State
Regulation
The Illinois Consumer Fraud and Deceptive Business
Practices Act (ICFA), prohibits unfair or deceptive acts
or practices, including deception, fraud, false pretense,
false promise, misrepresentation or the concealment,
suppression or omission of any material fact, with the
intent that others rely upon the concealment in the
conduct of any trade or commerce. 815 ILCS 505/1, et
seq. A claim brought under the ICFA requires: (1) a
deceptive act or practice by the defendant; (2) the
defendant intended that the plaintiff rely on the
deception; (3) the deceptive act occurred in a course of
conduct involving trade or commerce; and, (4) actual
damages to the plaintiff; (5) proximately caused by the
deceptive act.
Antitrust & Trade Law > Consumer
Protection > Deceptive & Unfair Trade
Practices > State Regulation
HN4[ ] Deceptive & Unfair Trade Practices, State
Regulation
The Illinois Consumer Fraud and Deceptive Business
Practices Act defines deceptive acts or practices as:
including but not limited to the use or employment of
any deception, fraud, false pretense, false promise,
misrepresentation or the concealment, suppression or
omission of any material fact, with intent that others rely
upon the concealment, suppression or omission of such
material fact in the conduct of any trade or commerce.
Antitrust & Trade Law > … > Trade Practices &
Unfair Competition > State Regulation > Scope
Antitrust & Trade Law > Consumer
Protection > Deceptive & Unfair Trade
Practices > State Regulation
HN5[ ] Trade Practices & Unfair Competition, State
Regulation
The first inquiry under the Illinois Consumer Fraud and
Deceptive Business Practices Act is whether there was
a deceptive act or practice.
Antitrust & Trade Law > Consumer
Protection > Deceptive & Unfair Trade
Practices > State Regulation
HN6[ ] Deceptive & Unfair Trade Practices, State
Regulation
Under the Illinois Consumer Fraud and Deceptive
Business Practices Act, a statement is deceptive if it
creates a likelihood of deception or has the capacity to
deceive. Courts should look at the context of the
information made available to the plaintiff in deciding
whether a statement is deceptive. Courts apply a
reasonable consumer standard in evaluating the
likelihood of deception. The reasonable consumer test
requires a probability that a significant portion of the
general consuming public acting reasonably in the
circumstances, could be misled. Allegedly deceptive
labels must be viewed in context, and even where a
statement might be deceptive in isolation, it may be
permissible in conjunction with clarifying language.
Antitrust & Trade Law > Consumer
Protection > Deceptive & Unfair Trade
Practices > State Regulation
HN7[ ] Deceptive & Unfair Trade Practices, State
Regulation
A statement or label cannot mislead unless it actually
conveys untrue information about a product.
Additionally, a court may dismiss an Illinois Consumer
Fraud and Deceptive Business Practices Act claim at
the pleading stage if the statement is not misleading as
a matter of law.
Business & Corporate Compliance > … > Contracts
Law > Breach > Breach of Warranty
Commercial Law (UCC) > … > Contract
Provisions > Warranties > Express Warranties
Torts > Products Liability > Theories of
Liability > Breach of Warranty
Business & Corporate Compliance > … > Contracts
Law > Contract Conditions & Provisions > Express
Page 3 of 12
581 F. Supp. 3d 1101, *1101; 2022 U.S. Dist. LEXIS 12610, **12610
Warranties
Business & Corporate Compliance > … > Contracts
Law > Types of Contracts > Express Warranties
HN8[
] Breach, Breach of Warranty
Under Illinois law, a description of goods can create an
express warranty: Any description of the goods which is
made part of the basis of the bargain creates an
express warranty that the goods shall conform to the
description. 810 ILCS 5/2-313. With this statutory
overlay, the express warranty is a creature of contract.
To adequately plead a breach of express warranty, a
plaintiff must allege: (1) the terms of the warranty; (2) a
breach or failure of the warranty; (3) a demand upon the
defendant to perform under the terms of the warranty;
(4) a failure by the defendant to do so; (5) compliance
with the terms of the warranty by the plaintiff; and (6)
damages measured by the terms of the warranty.
Business & Corporate Compliance > … > Contracts
Law > Breach > Breach of Warranty
Civil
Procedure > … > Pleadings > Complaints > Require
ments for Complaint
Torts > Products Liability > Theories of
Liability > Breach of Warranty
Commercial Law (UCC) > … > Contract
Provisions > Warranties > Implied Warranty of
Fitness
Commercial Law (UCC) > … > Contract
Provisions > Warranties > Implied Warranty of
Merchantability
HN10[
Business & Corporate Compliance > … > Contracts
Law > Breach > Breach of Warranty
Torts > Products Liability > Theories of
Liability > Breach of Warranty
Commercial Law (UCC) > … > Contract
Provisions > Warranties > Implied Warranty of
Fitness
] Breach, Breach of Warranty
While the Federal Rules of Civil Procedure allow for
liberal notice pleading, conclusory allegations regarding
the good’s merchantability and fitness are not sufficient
to state a claim for breach of implied warranty of
merchantability absent some factual support.
Antitrust & Trade Law > Consumer
Protection > Deceptive & Unfair Trade
Practices > State Regulation
Commercial Law (UCC) > … > Contract
Provisions > Warranties > Implied Warranty of
Merchantability
Business & Corporate Compliance > … > Contracts
Law > Breach > Breach of Warranty
Business & Corporate Compliance > … > Sales of
Goods > Warranties > Merchantability
Torts > Products Liability > Theories of
Liability > Breach of Warranty
HN9[
] Breach, Breach of Warranty
Under Article 2 of the Uniform Commercial Code (UCC),
as adopted by Illinois, to state a claim for breach of the
implied warranty of merchantability, a plaintiff must
allege that (1) the defendant sold goods that were not
merchantable at the time of sale; (2) the plaintiff
suffered damages as a result of the defective goods;
and (3) the plaintiff gave the defendant notice of the
defect. 810 Ill. Comp. Stat. Ann. 5/2-314. To be
merchantable, the goods must pass without objection in
the trade under the contract description and must be fit
for the ordinary purposes for which such goods are
used.
Governments > Legislation > Statutory Remedies &
Rights
Business & Corporate Compliance > … > Contracts
Law > Types of Contracts > Express Warranties
HN11[ ] Deceptive & Unfair Trade Practices, State
Regulation
The Magnuson Moss Warranty Act (MMWA) is a
remedial statute designed to protect consumers against
deceptive warranty practices. It provides a federal
private cause of action for a warrantor’s failure to
comply with the terms of a written warranty, implied
Page 4 of 12
581 F. Supp. 3d 1101, *1101; 2022 U.S. Dist. LEXIS 12610, **12610
warranty or service contract. In claims brought under the
MMWA, state law governs the creation of implied
warranties. The Act does not create implied warranties,
but instead confers federal court jurisdiction for state law
breach of implied warranty claims.
Torts > … > Fraud & Misrepresentation > Negligent
Misrepresentation > Elements
HN12[
] Negligent Misrepresentation, Elements
The elements of a claim of negligent misrepresentation
are: (1) a false statement of material fact; (2)
carelessness or negligence in ascertaining the truth of
the statement by the party making it; (3) an intention to
induce the other party to act; (4) action by the other
party in reliance on the truth of the statement; (5)
damage to the other party resulting from such reliance;
and (6) a duty on the party making the statement to
communicate accurate information.
HN14[ ] Heightened Pleading Requirements, Fraud
Claims
Heightened pleading requirements apply to complaints
alleging fraud. Fed. R. Civ. P. 9(b) provides that a party
alleging fraud or mistake must state with particularity the
circumstances constituting fraud or mistake, although
malice, intent, knowledge, and other conditions of a
person’s mind may be alleged generally. This generally
means describing the who, what, when, where, and how
of the fraud.
Contracts Law > Remedies > Equitable
Relief > Quantum Meruit
HN15[
] Equitable Relief, Quantum Meruit
To state a claim for unjust enrichment, a plaintiff must
allege that the defendant has unjustly retained a benefit
to the plaintiff’s detriment, and that defendant’s retention
of the benefit violates the fundamental principles of
justice, equity, and good conscience.
Torts > … > Fraud & Misrepresentation > Negligent
Misrepresentation > Defenses
Torts > … > Fraud & Misrepresentation > Negligent
Misrepresentation > Remedies
Civil
Procedure > … > Justiciability > Standing > Burdens
of Proof
Torts > … > Compensatory Damages > Types of
Losses > Economic Losses
Civil Procedure > … > Injunctions > Grounds for
Injunctions > Irreparable Harm
Torts > … > Fraud & Misrepresentation > Negligent
Misrepresentation > Elements
HN13[
] Negligent Misrepresentation, Defenses
While there are exceptions to the economic loss
doctrine, one of which applies where the plaintiff’s
damages are proximately caused by a negligent
misrepresentation in the business of supplying
information for the guidance of others in their business
transactions, it is a question of law whether an
exception applies.
Civil Procedure > … > Pleadings > Heightened
Pleading Requirements > Fraud Claims
Civil Procedure > … > Pleadings > Heightened
Pleading Requirements > Mistake
HN16[
] Standing, Burdens of Proof
To have standing to pursue injunctive relief, a plaintiff
must show that she faces—going forward—a real and
immediate threat of future injury from defendant’s
actions. The equitable remedy of injunctive relief is
unavailable absent a showing of irreparable injury, a
requirement that cannot be met where there is no
showing of any real or immediate threat that the plaintiff
will be wronged again.
Civil
Procedure > … > Justiciability > Standing > Burdens
of Proof
Constitutional Law > … > Case or
Controversy > Constitutionality of
Legislation > Standing
Page 5 of 12
581 F. Supp. 3d 1101, *1101; 2022 U.S. Dist. LEXIS 12610, **12610
HN17[
] Standing, Burdens of Proof
Article III standing for one does not automatically cover
the other: a plaintiff must demonstrate standing
separately for each form of relief sought.
Floyd resides in Maryville, Illinois (¶ 36). Pepperidge
Farms is the manufacturer, distributer, marketer, labeler
and seller of Golden Butter [Crackers] (“crackers”) (¶ 1).
Floyd reproduced in her complaint the following copy of
the cracker box:
[*1106]
Civil Procedure > … > Defenses, Demurrers &
Objections > Motions to Dismiss > Failure to State
Claim
HN18[
] Motions to Dismiss, Failure to State Claim
A plaintiff whose original complaint has been dismissed
under Fed. R. Civ. P. 12(b)(6) should be given at least
one opportunity to try to amend her complaint.
Counsel: [**1] For Deborah Floyd, individually and on
behalf of all others similarly situated, Plaintiff: Spencer I.
Sheehan, Sheehan & Associate, P.C., Great Neck, NY.
For Pepperidge Farm, Incorporated, Defendant: Dale J.
Giali, LEAD ATTORNEY, Mayer Brown LLP – Los
Angeles, Los Angeles, CA; Keri Elizabeth Borders, PRO
HAC VICE, Mayer Brown LLP, Los Angeles, CA.
Judges: STEPHEN P. McGLYNN, United States
District Judge.
Opinion by: STEPHEN P. McGLYNN
Opinion
[*1105] MEMORANDUM AND ORDER
McGLYNN, District Judge:
Pending before the Court is a Motion to Dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure filed by Defendant Pepperidge Farm,
Incorporated (“Pepperidge Farm”). For the reasons set
forth below, the Court GRANTS the Motion to Dismiss in
its entirety.
FACTUAL BACKGROUND
The following facts are taken from plaintiff Deborah
Floyd’s (“Floyd”) complaint (Doc. 1) and are accepted as
true for purposes of Pepperidge Farm’s motion to
dismiss. Fed. R. Civ. P. 10(c); Arnett v. Webster, 658
F.3d 742, 751-52 (7th Cir. 2011).
Floyd also reproduced the following ingredient list of the
crackers in her complaint:
Page 6 of 12
581 F. Supp. 3d 1101, *1106; 2022 U.S. Dist. LEXIS 12610, **1
vegetable oils in addition to butter (¶ 10). She further
claims that the name was chosen to entice customers,
who chose said crackers because they contained butter
(¶ 26). Floyd asserted that customers relied on the
“Golden Butter” name and that the customers would not
have chosen those crackers had they known about the
vegetable oils (¶ 30). She further asserted that
Pepperidge Farms sold the “Golden Butter” crackers for
a premium price, which they would not have been able
to do without the misleading name (¶¶ 29, 31).
Butter [**2] is second on the ingredient list, behind
enriched wheat flour, but the claims are concerned with
the presence of the third ingredient — vegetable oils.
Floyd purchased the crackers on at least one occasion
at Schnucks, 2222 Troy Road, Edwardsville, Illinois
during 2019 and 2020 because “she wanted to consume
a cracker which contained more butter than it did” and
“did not contain butter substitutes where butter could be
used” (¶¶ 41, 42). Floyd claims that the packaging of the
crackers was misleading because “even though the
[crackers] contain butter, it contains a non-de minimis
amount of butter substitutes — vegetable oils” (¶ 10).
Floyd contends that the value of the crackers was less
because they contained vegetable oils and that
Pepperidge Farms was able to sell the crackers at a
higher price premium due to the “misleading
representations and omissions” (¶¶ 28, 31). Floyd
“would not have paid as much absent [Pepperidge
Farm’s] false and misleading statements and omissions”
(¶43).
PROCEDURAL BACKGROUND
On May 31, 2021, plaintiff Deborah Floyd (“Floyd”) filed
a putative class action [*1107] complaint against
Pepperidge Farms (Doc. 1). The complaint alleges
numerous theories of liability against [**3] Pepperidge
Farms as the manufacturer, distributer, marketer,
labeler and seller of “Golden Butter [Crackers]” (¶ 1).
Within the complaint, Floyd asserts claims under the
Illinois Consumer Fraud and Deceptive Business
Practices Act (“ICFA”), 815 ILCS 505/1, et seq., and the
Magnuson Moss Warranty Act, 15 U.S.C §§ 2301, et
seq. (pp. 8, 9). Floyd also asserts claims for breach of
express warranty, breach of implied warranty of
merchantability, negligent misrepresentation, fraud, and
unjust enrichment (pp. 8-10).
Specifically, Floyd claims that the label and name of the
crackers is misleading, because the crackers contain
On October 22, 2021, Pepperidge Farm filed a Motion to
Dismiss pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure, along with supporting memorandum
of law (Docs. 12, 12-1). Pepperidge Farms also
challenges whether Floyd met the heightened [**4]
pleading standard under Rule 9(b) of the Federal Rules
of Civil Procedure (Doc. 12-1, p. 12).
With respect to the 12(b)(6) grounds for dismissal,
Pepperidge Farms argues that Floyd has not plausibly
alleged that the “Golden Butter” name is deceptive
(Doc. 12-1, p. 7). Pepperidge Farms also asserts that
Floyd does not state claims for breach of warranty,
negligent misrepresentation, fraud, or unjust enrichment
(Doc. 12-1, pp. 12-15). Additionally, Pepperidge Farms
contends that Floyd does not have standing to seek
injunctive relief (Doc. 12-1, p. 15).
On October 28, 2021, Floyd filed two separate
“responses” to the Pepperidge Farms motion. In the
first, Floyd indicated she would file an amended
complaint as of right pursuant to Rule 15(a)(1)(B) of the
Federal Rules of Civil Procedure no later than
November 12, 2021, which was 21 days after the motion
was filed (Doc. 15). In the second, Floyd withdrew the
previous response and indicated she would file
opposition to motion to dismiss by November 23, 2021
(Doc. 16).
On November 10, 2021, Pepperidge Farms sought
leave to file supplemental authority in support of its
motion to dismiss (Doc. 18). On November 12, 2021,
this Court granted said motion (Doc. 19), allowing
Pepperidge Farms to submit the recent decision in a
virtually identical matter, albeit [**5] in a different
jurisdiction, to wit: Kamara, et al. v. Pepperidge Farm,
Inc., No. 1:20-cv-09012, 2021 U.S. Dist. LEXIS 216644
(S.D.N.Y., Nov. 9, 2021).
In Kamara, Judge Castel of the Southern District of New
York granted Pepperidge Farm’s motion to dismiss in its
entirety and denied leave to amend the complaint. This
Page 7 of 12
581 F. Supp. 3d 1101, *1107; 2022 U.S. Dist. LEXIS 12610, **5
decision followed an analysis of each of count/claim,
including consumer fraud and deception (under the New
York Business Law), negligent misrepresentation,
breach of implied warranty, breach of express warranty
and Magnuson Moss warranty, fraud, and unjust
enrichment. While not binding precedent, this decision
and analysis is certainly persuasive authority for this
Court to consider.
1074, 1081 (7th Cir. 2008). Under this standard, a
plaintiff who seeks to survive a motion to dismiss must
go beyond “mere labels and conclusions” and “plead
some facts that [**7] suggest a right of relief that is
beyond speculative level.” G & S Holdings, LLC. v.
Cont’l Cas. Co., 697 F.3d 534, 537-8 (7th Cir. 2012).
ANALYSIS
On November 24, 2021, Floyd filed her Memorandum in
Opposition to Motion to [*1108] Dismiss (Doc. 20).
Within the opposition, Floyd attempted to rebut each
and every one of Pepperidge Farm’s assertions (Id.).
First, Floyd contended that Pepperidge Farms conduct
was in violation of the ICFA in that it could plausibly
deceive a reasonable customer (pp. 2-8). Second, Floyd
countered that she stated claims for breach of implied
and express warranty, along with a claim under the
Magnuson Moss Warranty Act (“MMWA”) (pp. 9-12).
Third, [**6] Floyd asserted that she adequately pled the
common law claims of negligent misrepresentation,
fraud, and unjust enrichment (pp. 12-13). Finally, Floyd
argued that she had standing to seek injunctive relief
(pp. 13-14).
Any reply should have been received before December
8, 2021; as such, this matter is ripe for review.
LEGAL STANDARD
HN1[ ] In addressing a motion to dismiss for failure to
state a claim on which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a district court
must assess whether the complaint includes “enough
facts to state a claim to relief that is plausible on its
face.” Khorrami v. Rolince, 539 F.3d 782, 788 (7th Cir.
2008) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).
“Plausibility is not a symptom for probability in this
context but asks for more than a sheer possibility that a
defendant has acted unlawfully.” West Bend Mut. Ins.
Co. v. Schumacher, 844 F.3d 670 (7th Cir. 2016).
HN2[ ] The Court of Appeals for the Seventh Circuit
has clarified that courts must approach Rule 12(b)(6)
motions by construing the complaint in the light most
favorable to the non-moving party, accepting as true all
well-pleaded facts alleged, and drawing all possible
inferences in the non-moving party’s favor. Hecker v.
Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009), cert.
denied, 558 U.S. 1148, 130 S. Ct. 1141, 175 L. Ed. 2d
973 (2010) (quoting Tamayo v. Blagojevich, 526 F.3d
I. Illinois Consumer Fraud and Deceptive Business
Practices Act
A. Law
HN3[ ] The Illinois Consumer Fraud and Deceptive
Business Practices Act (“ICFA”), prohibits “unfair or
deceptive acts or practices, including … deception,
fraud, false pretense, false promise, misrepresentation
or the concealment, suppression or omission of any
material fact, with the intent that others rely upon the
concealment … in the conduct of any trade or
commerce.” 815 ILCS 505/1, et seq. A claim brought
under the ICFA requires: (1) a deceptive act or practice
by the defendant; (2) the defendant intended that the
plaintiff rely on the deception; (3) the deceptive act
occurred in a course of conduct involving trade or
commerce; and, (4) actual damages to the plaintiff; (5)
proximately caused by the deceptive act. Phila Indem.
Ins. Co. v. Chi. Title Ins. Co., 771 F.3d 391, 402 (7th Cir.
2014) (citing DeBouse v. Bayer AG, 235 Ill.2d 544, 922
N.E.2d 309, 337 Ill. Dec. 186 (2009).
HN4[ ] The ICFA defines deceptive acts or practices
as: ‘including but not limited to the use or employment of
any deception, fraud, false pretense, false promise,
misrepresentation or the concealment, suppression or
omission of any material fact, with intent that others rely
upon the concealment, suppression or omission of such
[*1109] material fact … in the [**8] conduct of any
trade or commerce. Phillips v. DePaul Univ., 2014 IL
App (1st) 122817, 2014 IL App (1st) 122817, 385
Ill.Dec. 823, 19 N.E.3d 1019 (Ill.App. 1st Dist. 2014).
B. Discussion
HN5[ ] The first inquiry under the ICFA is whether
there was a deceptive act or practice. Floyd alleges that
naming the crackers “Golden Butter” was deceptive
because is misled consumers that the crackers
Page 8 of 12
581 F. Supp. 3d 1101, *1109; 2022 U.S. Dist. LEXIS 12610, **8
expected butter and not a non-de minimis amount of
butter substitutes (Doc. 1, ¶¶ 4, 10). Floyd also claims
that the vegetable oils “enhance the appearance” of the
crackers, which is misleading because “consumers
expect that the cause of the golden hue of the [crackers]
is butter”. (Id., ¶¶ 17, 18).
HN6[ ] Under the ICFA, “a statement is deceptive if it
creates a likelihood of deception or has the capacity to
deceive.” Bober v. Glaxo Wellcome PLC, 246 F.3d 934,
938 (7th Cir. 2001) (citing People ex rel. Hartigan v.
Knecht Servs., Inc., 216 Ill.App.3d 843, 159 Ill.Dec. 318,
575 N.E.2d 1378, 1387 (1991)). Courts should look at
the context of the “information made available to the
plaintiff” in deciding whether a statement is deceptive.
Muir v. Playtex Prods., LLC, 983 F. Supp. 2d 980, 987
(N.D. Ill. Nov. 6, 2013). “Courts apply a ‘reasonable
consumer’ standard in evaluating the likelihood of
deception.” Stemm v. Tootsie Roll Indus., Inc., 374 F.
Supp. 3d 734, 740 (N.D. Ill. 2019) (citing Mullins v.
Direct Digital, LLC, 795 F.3d 654, 673 (7th Cir. 2015)).
The reasonable consumer test requires “a probability
that a significant portion of the general consuming public
… acting reasonably in the circumstances, could be
misled.” In re: 100% Grated Parmesan Cheese Mktg. &
Sales Practices Litig., 275 F. Supp. 3d 910, 921 (N.D.
Ill. 2017). Allegedly deceptive labels must be viewed in
context, and even where a statement might be
deceptive in isolation, [**9] it may be permissible in
conjunction with clarifying language. Id. at 922.
The crackers were a golden color; therefore, the use of
the word “golden” is descriptive and not false,
misleading or fraudulent. The crackers also contained
butter; therefore, the use of the word “butter” is
descriptive and not false, misleading or fraudulent.
However, according to Floyd, that is the not the end of
the inquiry.
Instead, the issue is not whether the crackers contained
butter or the color of the cracker itself, but whether
consumers were misled and deceived into thinking that
butter was the sole shortening ingredient. Again, this
Court thinks not. First, consumers were not deceived by
representations that the crackers contained butter. It is
the second ingredient on the label, behind only flour.
Second, consumers were not deceived by name,
“Golden Butter”, as the crackers were both golden-hued
and contained butter.
HN7[ ] The Seventh Circuit has held that a statement
or label cannot mislead unless it actually conveys untrue
information about a product. Bober, 246 F.3d at 938
(statements claiming that drugs were different
medications were not deceptive because “that claim
[was] completely true”). Additionally, our sister district to
the [**10] north has held that “[A] court may dismiss an
ICFA claim at the pleading stage if the statement is ‘not
misleading as a matter of law.'” Fuchs v. Menard, Inc.,
No. 17-CV-01752, 2017 U.S. Dist. LEXIS 160336, 2017
WL 4339821, at *3 (N.D. Ill. Sept. 29, 2017) (quoting
Ibarrola v. Kind, LLC, 83 F.Supp.3d 751, 756 (N.D. Ill.
2015)). There are no untruths on the packaging and
there is no deception. The name and the ingredient list
coalesced. There was no ambiguity that the crackers
contained butter. As such, any claims brought under the
ICFA are dismissed.
[*1110] II. Breach of Express Warranty
A. Law
HN8[ ] Under Illinois law, a description of goods can
create an express warranty: “Any description of the
goods which is made part of the basis of the bargain
creates an express warranty that the goods shall
conform to the description.” 810 ILCS 5/2-313. With this
statutory overlay, the express warranty is a “creature of
contract.” Collins Co. v. Carboline Co., 125 Ill.2d 498,
532 N.E.2d 834, 127 Ill. Dec. 5 (1988). To adequately
plead a breach of express warranty, a plaintiff must
allege: “(1) the terms of the warranty; (2) a breach or
failure of the warranty; (3) a demand upon the
defendant to perform under the terms of the warranty;
(4) a failure by the defendant to do so; (5) compliance
with the terms of the warranty by the plaintiff; and (6)
damages measured by the terms of the warranty.”
Lambert v. Dollar Gen. Corp., 2017 U.S. Dist. LEXIS
92756, 2017 WL 2619142, at *2 (N.D. Ill. June 16,
2017).
B. Discussion
Floyd claims that Pepperidge Farms expressly
warranted that the crackers contained [**11] more
butter than they did and that they did not contain butter
substitutes where butter could be used (Doc. 1, ¶ 58).
However, the label itself does not specify or quantify
either the amount of butter or vegetable oils used in the
crackers, other than the ingredient list identifying butter
as the second ingredient. Floyd does not indicate that
she knows the exact amount of butter used nor the
amount of vegetable oils. Instead, she assumes the
Page 9 of 12
581 F. Supp. 3d 1101, *1110; 2022 U.S. Dist. LEXIS 12610, **11
vegetable oil is used as a topical spray and is applied at
around 8-18% of the cracker weight, which is quite a
disparity (Doc. 1, ¶ 16).
Assuming there was a warranty that the crackers
conformed to its description, where was the breach?
The crackers contained butter and they were goldenhued as the name and label specified. Clearly, the
“Golden Butter” crackers met its description; therefore,
any claims for breach of express warranty are
dismissed.
Furthermore, Floyd’s allegations carry zero weight in
that the Pepperidge Farm label for [**13] the “Golden
Butter” [Crackers] cannot reasonably be read to promise
that the only shortening agent in the crackers is butter.
Notwithstanding the foregoing, there is no merit
whatsoever to any potential argument that the crackers
were not merchantable at the time of sale. Floyd
purchased what was promised — crackers that
contained butter and were golden-hued. Clearly the box
did not contain purple crackers that were made without
butter. In light of the foregoing, any claims of implied
warranty of merchantability are dismissed.
III. Breach of Implied Warrant of Merchantability
IV. Magnuson Moss Warranty Act
A. Law
HN9[ ] Under Article 2 of the Uniform Commercial
Code (UCC), as adopted by Illinois, to state a claim for
breach of the implied warranty of merchantability, a
plaintiff must allege that (1) the defendant sold goods
that were not merchantable at the time [**12] of sale;
(2) the plaintiff suffered damages as a result of the
defective goods; and (3) the plaintiff gave the defendant
notice of the defect. 810 Ill. Comp. Stat. Ann. 5/2-314;
Solvay USA v. Cutting Edge Fabrication, Inc., 521
F.Supp.3d 718, 725 (N.D.Ill. Feb. 22, 2021). To be
merchantable, the goods must “pass without objection in
the trade under the contract description” and must be “fit
for the ordinary purposes for which such goods are
used.” Id.
HN10[ ] “While the Federal Rules of Civil Procedure
allow for liberal notice pleading, conclusory allegations
regarding the [good’s] merchantability and fitness are
not sufficient to state a claim for breach of implied
warranty of merchantability absent some factual
support.” Id. (citing Strauss v. City of Chicago, 760 F.2d
765, 768 (7th Cir. 1985) (holding that “bare legal
conclusions” are insufficient to survive a 12(b)(6) motion
where a plaintiff failed to include factual allegations in
support of the elements of a claim)).
B. Discussion
Floyd alleges that Pepperidge Farms “impliedly
warranted … that [the crackers] contained more butter
than it did and did not contain butter substituted where
butter could be used” (Doc. 1, ¶ 58). However, there are
no representations on [*1111] the label as to any
specific amount of butter contained within the crackers.
A. Law
HN11[ ] The Magnuson Moss Warranty Act (“MMWA”)
is a remedial statute designed to protect consumers
against deceptive warranty practices. Skelton v. Gen.
Motors Corp., 660 F.2d 311, 313 (7th Cir. 1981);
Anderson v. Gulf Stream Coach, Inc., 662 F.3d 775, 782
(7th Cir. 2011). It provides a federal private cause of
action for a warrantor’s failure to comply with the terms
of a “written warranty, implied warranty or service
contract.” Voelker v. Porsche Cars N. Am., Inc., 353
F.3d 516, 522 (7th Cir.2003) (quoting 15 U.S.C. §
2310(d)(1)). In claims brought under the MMWA, state
law governs the creation of implied warranties. Voelker,
353 F.3d at 525. The Act does not create implied
warranties, but instead confers federal court jurisdiction
for state law breach of implied warranty claims. See
Gardynski—Leschuck v. Ford Motor Co., 142 F.3d 955,
956 (7th Cir.1998); see also Schimmer v. Jaguar Cars,
384 F.3d 402, 405 (7th Cir.2004) (MMWA “allows
consumers to enforce written and implied warranties in
federal court, [**14] borrowing state law causes of
action.”).
B. Discussion
Floyd asserts her claims for breach of express warranty,
implied warranty of merchantability and MMWA in the
same section. Since Illinois law prevails and this Court
has dismissed both the express and implied warranties
for failing to properly allege a state law claim, any
MMWA counts are dismissed as well. See Schiesser v.
Ford Motor Co., No. 16 CV 730, 2016 U.S. Dist. LEXIS
149392, 2016 WL 6395457 at *4 (N.D. Ill. Oct. 28,
2016).
Page 10 of 12
581 F. Supp. 3d 1101, *1111; 2022 U.S. Dist. LEXIS 12610, **14
V. Negligent Misrepresentation
A. Law
HN12[ ] The elements of a claim of negligent
misrepresentation are: (1) a false statement of material
fact; (2) carelessness or negligence in ascertaining the
truth of the statement by the party making it; (3) an
intention to induce the other party to act; (4) action by
the other party in reliance on the truth of the statement;
(5) damage to the other party resulting from such
reliance; and (6) a duty on the party making the
statement to communicate accurate information. Garner
v. Johnson & Johnson, Janssen Research and
Development LLC, 2017 U.S. Dist. LEXIS 218360, 2017
WL 6945335 (C.D. Ill. Sept. 6, 2017) citing First Midwest
Bank, N.A. v. Stewart Title Guar. Co., 218 Ill. 2d 326,
843 N.E.2d 327, 334-35, 300 Ill. Dec. 69 (Ill. 2006).
B. Discussion
Floyd claims that Pepperidge Farms had a duty to
truthfully represent the [crackers], and that it breached
that duty (Doc. 1, ¶ 65). Throughout the complaint,
Floyd has asserted that the label/name “Golden Butter”
is misleading to consumers in numerous ways, from
assuming that butter is the sole shortening [**15]
ingredient to assuming that the color is enhanced from
the spray-on vegetable oils. Although Floyd does not
specify in this [*1112] section what she claims are the
untruths, it is irrelevant as the crackers are made with
butter and are golden-hued. At this point, the Court feels
like a scratched record repeating the phrase “there was
nothing false, misleading or deceptive on the label”;
therefore, any claims of negligent misrepresentation are
dismissed.
It is not plausible than Floyd can prevail on any such
claim of negligent misrepresentation as there are no
fallacies in the label. Moreover, Floyd’s negligent
misrepresentation claim would also fail under the
economic loss doctrine as she only seeks monetary
damages1 . HN13[ ] While there are exceptions to the
1 The
case from which the economic loss doctrine takes its
name in Illinois, Moorman Manufacturing Company v. National
Tank Company, defines “economic loss” as monetary loss
“without any claim of personal injury or damage to other
property,” and observes that “where there is no accident, and
doctrine, one of which applies “where the plaintiff’s
damages are proximately caused by a negligent
misrepresentation in the business of supplying
information for the guidance of others in their business
transactions”, it is a question of law whether an
exception applies and this Court is not inclined to do so.
See Catalan v. GMAC Mortg. Corp., 629 F.3d 676, 692
(7th Cir. 2011); Gondeck v. A Clear Title and Escrow
Exchange, LLC, 47 F. Supp. 3d 729, 749 (N.D. Ill. June
9, 2014).
VI. Fraud
A. Law
HN14[ ] Heightened pleading requirements apply to
complaints alleging [**16] fraud. Federal Rule of Civil
Procedure 9(b) provides that a party alleging fraud or
mistake “must state with particularity the circumstances
constituting fraud or mistake,” although “[m]alice, intent,
knowledge, and other conditions of a person’s mind may
be alleged generally.” This generally means “describing
the ‘who, what, when, where, and how’ of the fraud.”
AnchorBank, FSB v. Hofer, 649 F.3d 610, 615 (7th Cir.
2011).
B. Discussion
Floyd claims that Pepperidge Farms “misrepresented
and/or omitted the attributes and qualities of the
products” because the product was “not as advertised”
(Doc. 1, ¶¶ 70-71). However, how where the crackers
misrepresented? Moreover, how were the crackers not
as advertised? They contained butter and they were a
golden hue? Yet again, plaintiff has fallen short and has
failed to assert sufficient facts to show that her claim for
fraud is plausible. Therefore, this claim is dismissed.
VII. Unjust Enrichment
A. Law
no physical damage, and the only loss is a pecuniary one,
through loss of the value or use of the thing sold, … the courts
have adhered to the rule that purely economic interests are
not entitled to protection against mere negligence, and so
have denied the recovery,” 91 Ill.2d 69, 435 N.E.2d 443, 61 Ill.
Dec. 746 (1982)
Page 11 of 12
581 F. Supp. 3d 1101, *1112; 2022 U.S. Dist. LEXIS 12610, **16
HN15[ ] “To state a claim for unjust enrichment, a
plaintiff must allege that the defendant has unjustly
retained a benefit to the plaintiff’s detriment, and that
defendant’s retention of the benefit violates the
fundamental principles of justice, equity, and good
conscience.” Stefanski v. City of Chicago, 2015 IL App
(1st) 132844, 390 Ill.Dec. 314, 28 N.E.3d 967, 980 (Ill.
App. Ct. 2015)
B. Discussion
Floyd alleges that Pepperidge Farms “obtained benefits
and [**17] monies because the Product was not as
represented and expected” (Doc. 1, ¶ 72). To the
contrary, the crackers were as represented. They
contained butter and they were golden-hued. Because
her claim is predicated [*1113] on the same allegations
as asserted under the ICFA and express warranty
claims, it too must fail. Spector v. Mondelēz
International, Inc., 178 F. Supp. 3d 657, 674. Indeed,
plaintiff’s unjust enrichment claim “will stand or fail” with
related claims of “the same [alleged] improper conduct”.
Cleary v. Philip Morris, Inc., 656 F.3d 511, 517 (7th Cir.
2011).
VIII. Standing — Injunctive Relief
A. Law
HN16[ ] To have standing to pursue injunctive relief,
Floyd must show that she faces—going forward—a “real
and immediate threat of future injury” from Pepperidge
Farm’s actions. Simic v. City of Chicago, 851 F.3d 734,
738 (7th Cir. 2017) (citing City of Los Angeles v. Lyons,
461 U.S. 95, 103 S. Ct. 1660, 75 L. Ed. 2d 675 (1983).
The equitable remedy of injunctive relief “is unavailable
absent a showing of irreparable injury, a requirement
that cannot be met where there is no showing of any
real or immediate threat that the plaintiff will be wronged
again ….”. Lyons, 461 U.S. at 111.
B. Discussion
No one doubts that Floyd has standing to pursue
monetary damages, but she also seeks injunctive relief
against Pepperidge Farm’s alleged false advertising.
HN17[ ] The problem is that Article III standing for one
does not automatically cover the other: “a plaintiff must
demonstrate standing separately for [**18] each form of
relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl.
Servs. (TOC), Inc., 528 U.S. 167, 185, 120 S. Ct. 693,
145 L. Ed. 2d 610 (2000) (citing Lyons, 461 U.S. at 109,
and describing the holding of that case as
“notwithstanding the fact that plaintiff had standing to
pursue damages, he lacked standing to pursue
injunctive relief”).
Here, Floyd seeks injunctive relief against Pepperidge
Farm’s advertising practices under various theories of
liability (Doc. 1). In challenging her standing to pursue
injunctive relief, Pepperidge Farms argues that Floyd is
now aware that vegetable oil is in the crackers, so she
cannot be harmed in the future (Doc. 12-1). This is true.
Floyd cites to two district court cases to support her
contention that standing exists, but both are inapplicable
to this case. See Le v. Kohl’s Dep’t Stores, Inc., 160
F.Supp.3d 1096 (E.D. Wis. 2016) and Leiner v. Johnson
& Johnson Consumer Cos., Inc., 215 F.Supp.3d 670
(N.D. Ill. 2016). Le involved a company-wide complaint
against Kohls for pervasive and continuous false
advertising, as opposed to one of Pepperidge Farm’s
products. 160 F.Supp.3d at 1110. Leiner, too, involved
claims against a company alleging that they falsely
advertised their products as “clinically proven” to help
babies sleep. 215 F.Supp.3d at 673. Leiner also
unsuccessfully raised public policy concerns as to
whether injunctive-relief provisions for consumerprotection statutes could ever be invoked to enjoin
deceptive practices if the complaining consumer’s
standing dissipated [**19] when she discovered the
deception. In dismissing her claims for injunctive relief,
the court reminded her that Article III standing was a
requirement for federal-court subject matter jurisdiction.
Similarly, Floyd’s claim for injunctive relief is denied, but
she is not precluded or constrained from seeking
injunctive relief in state court.
CONCLUSION
For the reasons set forth above, and because Floyd has
failed to plausibly allege any cause of action, defendant
Pepperidge Farm, Incorporated’s motion to dismiss is
GRANTED in its entirety. Floyd’s putative class action
complaint is [*1114] dismissed without prejudice and
any potential motion for class certification is moot at this
time.
HN18[ ] Although this Court is reticent to do so, a
plaintiff whose original complaint has been dismissed
under Rule 12(b)(6) should be given at least one
opportunity to try to amend her complaint. See Runnion
Page 12 of 12
581 F. Supp. 3d 1101, *1114; 2022 U.S. Dist. LEXIS 12610, **19
ex rel. Runnion v. Girl Scouts of Greater Chicago and
Northwest Indiana, 786 F.3d 510 (7th Cir. 2015).
Therefore, Floyd is granted 30 days, or until February
23, 2022 file an amended complaint, if she can do so
consistent with Rule 11 of the Federal Rules of Civil
Procedure. If no amended complaint is filed on or before
February 23, 2022, the Court will enter final judgment
and close the case. If Floyd files an amended complaint,
Pepperidge Farms will have 30 days from that date to
file a responsive [**20] pleading.
IT IS SO ORDERED.
DATED: January 24, 2022
/s/ Stephen P. McGlynn
STEPHEN P. McGLYNN
U.S. District Judge
End of Document
Date and Time: Tuesday, January 17, 2023 11:22:00AM EST
Job Number: 188035930
Document (1)
1. Maietta v. C.R. Bard, Inc., 2022 U.S. Dist. LEXIS 148734
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Maietta v. C.R. Bard, Inc.
United States District Court for the Eastern District of Pennsylvania
August 19, 2022, Decided; August 19, 2022, Filed
CIVIL ACTION NO. 19-4170
Reporter
2022 U.S. Dist. LEXIS 148734 *; 2022 WL 3577374
LAURA MAIETTA and WESLEY WILSON III v. C.R.
BARD, INC. et al.
Prior History: In re Bard IVC Filters Prods. Liab. Litig.,
2019 U.S. Dist. LEXIS 141175, 2019 WL 3928657 (D.
Ariz., Aug. 19, 2019)
Core Terms
filter, warn, summary judgment, medical device, strict
liability claim, prescription, complications, categorically,
misrepresentation, nonmoving, negligent
misrepresentation, reasonable jury, material fact,
fracture, injuries, genuine, risks, fraudulent
misrepresentation, deposition testimony, loss of
consortium, negligent failure, punitive damages, factual
dispute, experienced, implanted, products, cases,
drugs, fraudulent concealment, grant summary
judgment
Counsel: [*1] For Laura Maietta, Wesley Wilson, III,
Plaintiffs: CLIFFORD A. RIEDERS, LEAD ATTORNEY,
REIDERS, TRAVIS, MUSSINA, HUMPHREY &
HARRIS, Williamsport, PA USA; MARK S. O’CONNOR,
LEAD ATTORNEY, BEUS GILBERT MCGRODER,
Phoenix, AZ USA; JULIA REED, LAURA SMITH,
HEAVISIDE REED ZAIC, Newport Beach, CA USA;
SASHA B. COFFINER, RIEDERS TRAVIS HUMPHREY
WATERS & DOHEMANN, Williamsport, PA USA.
For C R Bard Incorporated, Defendant: BRIAN T.
FEENEY, LEAD ATTORNEY, GREENBERG TRAURIG,
LLP, Philadelphia, PA USA; DANIELL K NEWMAN,
LEAD ATTORNEY, GREENBERG TRAURIG LLP, Los
Angeles, CA USA; JESSICA NATALI, LEAD
ATTORNEY, GREENBERG TRAURIG, Philadelphia,
PA USA; MATTHEW E. BROWN, LEAD ATTORNEY,
NELSON MULLINS RILEY & SCARBOROUGH LLP,
Boston, MA USA.
For Bard Peripheral Vascular Incorporated, Defendant:
BRIAN T. FEENEY, LEAD ATTORNEY, GREENBERG
TRAURIG, LLP, Philadelphia, PA USA; DANIELL K
NEWMAN, LEAD ATTORNEY, GREENBERG
TRAURIG LLP, Los Angeles, CA USA; JESSICA
NATALI, LEAD ATTORNEY, GREENBERG TRAURIG,
Philadelphia, PA USA; MATTHEW E. BROWN, LEAD
ATTORNEY, NELSON MULLINS RILEY &
SCARBOROUGH LLP, Boston, MA USA; DANIELL K
NEWMAN, LEAD ATTORNEY, GREENBERG
TRAURIG LLP.
Judges: MICHAEL M. BAYLSON, UNITED STATES
DISTRICT JUDGE. [*2]
Opinion by: MICHAEL M. BAYLSON
Opinion
MEMORANDUM RE: DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Baylson, J.
I. Introduction
Defendants C.R. Bard, Inc. and Bard Peripheral
Vascular, Inc. have filed a Motion for Summary
Judgment (ECF 66, 67, 68) in this case arising from
allegedly defective medical technology. Plaintiffs Laura
Maietta and Wesley Wilson III bring a wide array of state
law claims against Defendants. For the reasons that
follow, the Court will deny in part and grant in part
Defendants’ Motion.
II. Background and Procedural History
The facts of this case, considered in the light most
favorable to the nonmoving party, are as follows.
Following a serious car accident in 2003, Plaintiff Laura
Page 2 of 8
2022 U.S. Dist. LEXIS 148734, *2
Maietta was implanted with the Bard Recovery Filter, an
intravascular (IVC) filter manufactured by Defendants
C.R. Bard, Inc. and Bard Peripheral Vascular, Inc.
(collectively “Bard”). The filter, which was implanted by
Dr. Bartholomew Tortella, was intended to prevent
Maietta from suffering a pulmonary embolism. (MSJ,
Statement of Material Facts ¶¶ 14-15.)
In 2016, after experiencing back pain, Maietta was
medically examined. She learned that the Bard filter had
broken, with one of the filter’s struts fracturing.
Maietta [*3] underwent surgery to have the filter
removed. Although most of the filter was successfully
removed, the operating doctors were unable to remove
the fractured strut. (Id. ¶¶ 61-69.)
4. Count VII: Negligence by failing to warn;
5. Count VIII: Negligent misrepresentation;
6. Count XII: Fraudulent misrepresentation;
7. Count XIII: Fraudulent concealment;
8. Count XV: Loss of consortium.
Defendants move for summary judgment on all of
Plaintiffs’ remaining claims. Defendants also move for
summary judgment on the issue of whether Plaintiffs
may be awarded punitive damages, which they request
in their Complaint. Plaintiffs filed a Response (ECF 79,
80), and Defendants filed a Reply (ECF 93).
Maietta again experienced medical difficulty in 2018,
when she was hospitalized for an infection in her spine.
Concerned that the remnant of the broken Bard filter
might be the cause of the infection, Maietta consulted
with doctors about possibly removing the fractured strut.
Maietta was advised, however, that attempting to
remove the strut would be risky, and the strut was left in.
(Id. ¶¶ 70-75.)
The Court held oral argument on the Motion on August
18, 2022. Counsel were well-prepared and clear in
answering questions about the legal arguments made in
the briefs, which the Court will address in turn. Counsel
also provided the Court with helpful details about the
outcomes of similar [*5] cases against Bard in the
Eastern District.
The parties strongly dispute the source of Maietta’s pain
and infection. Plaintiffs contend that the Bard filter was
responsible for Maietta’s medical troubles. (MSJ Resp.
Br. 2-3.) By contrast, Defendants argue that the Bard
filter had no relation whatsoever to the medical
problems that Maietta experienced. (MSJ Br. 2-3.)
III. Legal Standard
Following her initial back pain in 2016, Maietta joined
her husband, Plaintiff Wesley Wilson III, to bring suit
against Bard. Maietta and Wilson’s case was transferred
under 28 U.S.C. § 1407 to an already existing
multidistrict litigation in the District of Arizona, which
consolidated thousands of cases concerning [*4]
allegedly defective IVC filters manufactured by Bard.
See In re Bard IVC Filters Prods. Liab. Litig., No. MDL
15-02641-PHX-DGC, 2019 U.S. Dist. LEXIS 141175,
2019 WL 3928657, at *1 (D. Ariz. Aug. 20, 2019). After
substantial discovery, the case was transferred back to
this Court in 2019, and some pretrial litigation continued.
In their Complaint (ECF 1), Plaintiffs brought fifteen
claims, some of which have been withdrawn and are not
listed:
1. Count II: Information defect;
2. Count III: Design defect;
3. Count IV: Negligence in designing the product;
Summary judgment should be granted if the movant can
establish “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). A dispute is
genuine if “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106
S. Ct. 2505, 91 L. Ed. 2d 202 (1986). If a factual dispute
“might affect the outcome of the suit under the
governing law,” the factual dispute is material and will
allow the nonmovant to survive summary judgment. Id.
A grant of summary judgment is appropriate only if “the
record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986).
In deciding a motion for summary judgment, courts are
obligated to “review the record as a whole and in the
light most favorable to the nonmovant, drawing
reasonable inferences in its favor.” In re Chocolate
Confectionary Antitrust Litig., 801 F.3d 383, 396 (3d Cir.
2015). The moving party must inform the district court of
the basis for its motion and identify the portions of the
record that demonstrate the absence of a genuine
dispute of material fact. Celotex Corp. v. Catrett, 477
Page 3 of 8
2022 U.S. Dist. LEXIS 148734, *5
U.S. 317, 322, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).
Where the burden of proof on a particular issue rests
with the nonmoving party at trial, the moving party’s
burden at the [*6] summary judgment stage can be met
by simply pointing out to the court “that there is an
absence of evidence to support the nonmoving party’s
case.” Id. at 325. Once the moving party has met its
initial burden, the nonmoving party must set forth
specific facts—through citation to affidavits, depositions,
discovery documents, or other evidence—that
demonstrate the existence of a genuine triable dispute.
Fed. R. Civ. P. 56(c).
IV. Discussion
a. Causation
Defendants first argue broadly that no reasonable jury
could find that the Bard filter caused Maietta’s alleged
injuries. Defendants contend that, based on this lack of
causation, the Court should grant summary judgment
against Plaintiffs on all claims. (MSJ Br. 15.)
The Court rejects Defendants’ argument. Plaintiffs
present significant expert testimony, specific to Maietta’s
case, from Dr. Darren Hurst, an interventional
radiologist (MSJ Resp., Opposing Statement of Material
Facts, Ex. 27 at 69-70, 90-94); Dr. John Schaefer, an
infectious disease expert (MSJ Resp., OSMF, Ex. 48 at
220-24); and Dr. Derek Muehrcke, a cardiothoracic
surgeon (MSJ Resp., OSMF, Ex. 29 at 58-60, 70-71).
This testimony supports Plaintiffs’ position that the Bard
filter physically injured Maietta. [*7]
Defendants counter that Plaintiffs’ experts “only . . .
state all filters have certain complications, some of
which Maietta suffered here, and then make the leap in
logic that because Maietta is claiming an injury here, it
must be due to a defect in the Filter.” (MSJ Br. 12.) But
even accepting, arguendo, this characterization of the
relevant expert testimony, a reasonable jury may well
infer that the Bard filter caused Maieta’s injuries based
on evidence that
1. Maietta suffered particular injuries;
2. Those injuries can be caused by IVC filters; and
3. The Bard filter was the particular IVC filter
inserted in Maietta.
The Court will therefore deny summary judgment on the
basis of lack of causation.
b. Strict Liability Claims
i. Applicable Law
Counts II and III of Plaintiffs’ Complaint, alleging
information and design defects, are strict liability claims.
“Strict liability allows a plaintiff to recover where a
product in ‘a defective condition unreasonably
dangerous to the user or consumer’ causes harm to the
plaintiff.” Phillips v. A-Best Prods. Co., 542 Pa. 124, 665
A.2d 1167, 1170 (Pa. 1995) (quoting Restatement
(Second) of Torts § 402A (Am. L. Inst. 1965)). Section
402A of the Restatement (Second) of Torts governs
strict liability claims. Tincher v. Omega Flex, Inc., 628
Pa. 296, 104 A.3d 328, 359 (Pa. 2014).
Of particular significance to this case is comment k of
Section 402A. “Comment k, titled ‘Unavoidably unsafe
products,’ denies [*8] application of strict liability to
products such as prescription drugs, which, although
dangerous in that they are not without medical risks, are
not deemed defective and unreasonably dangerous
when marketed with proper warnings.” Hahn v. Richter,
543 Pa. 558, 673 A.2d 888, 889-90 (Pa. 1996). In Hahn,
the Pennsylvania Supreme Court applied comment k to
bar strict liability claims based on prescription medical
drugs. Hahn, 673 A.2d at 891; see also Lance v. Wyeth,
624 Pa. 231, 85 A.3d 434, 453 (Pa. 2014) (“[F]or policy
reasons this Court has declined to extend strict liability
into the prescription drug arena.”). However, the
Pennsylvania Supreme Court has not specifically
addressed the application of comment k to strict liability
claims based on medical devices. “In the absence of a
controlling decision by the Pennsylvania Supreme
Court, a federal court applying that state’s substantive
law must predict how Pennsylvania’s highest court
would decide this case.” Berrier v. Simplicity Mfg., Inc.,
563 F.3d 38, 45-46 (3d Cir. 2009).
ii. Analysis
The parties raise two distinct questions. The first is a
broad question of whether comment k categorically bars
strict liability claims based on medical devices.
Defendants contend that medical devices are analogous
to prescription medical drugs, and that this Court should
accordingly find that comment k categorically bars strict
liability claims based [*9] on medical devices. (MSJ Br.
16-17.)
The second question is a narrower one of whether
Page 4 of 8
2022 U.S. Dist. LEXIS 148734, *9
comment k bars strict liability claims based specifically
on the Bard filter at issue in the present case.
Defendants contend that, even if application of comment
k to medical devices must be determined on a case-bycase rather than categorical basis, the Bard filter
nonetheless qualifies as an “unavoidably unsafe
product” that falls within the ambit of comment k. (Id. at
17-18.)
1. Categorical Application of Comment K
In support of their position that comment k categorically
applies to medical devices, Defendants cite the
Pennsylvania Superior Court’s decision in Creazzo v.
Medtronic, Inc., in which the court could “find no reason
why the same rational applicable to prescription drugs
may not be applied to medical devices.” 2006 PA Super
152, 903 A.2d 24, 31 (Pa. Super. Ct. 2006). But this
brief remark by an intermediate appellate court is far
from dispositive. As the undersigned found in a previous
case involving similar strict liability claims, “the
Pennsylvania Supreme Court has strongly discouraged
Pennsylvania courts from carving out certain categories
of products for special treatment within the common law
of products liability.” Gross v. Coloplast Corp., 434 F.
Supp. 3d 245, 251 (E.D. Pa. 2020) (Baylson, J.);
see [*10] Tincher v. Omega Flex, Inc., 628 Pa. 296,
104 A.3d 328, 396 (Pa. 2014) (“Courts, which address
evidence and arguments in individual cases, are neither
positioned, nor resourced, to make the kind of policy
judgments required to arrive at an a priori decision as to
which . . . categories and types of products, should be
exempt.”). The Pennsylvania Supreme Court has also
cautioned that it “applied a rather one-dimensional
analysis in its adoption of a blanket approach to
comment k,” and that “the truncated analysis in the
Hahn line offers a poor foundation for extrapolation.”
Lance, 85 A.3d at 452 n.21.
In light of this guidance, I conclude the Pennsylvania
Supreme Court would likely decline to categorically
apply comment k to medical devices. The decision is not
clear-cut; I agree with two other judges in the Eastern
District “that the plain language of comment k, which
focuses on products which cannot be legally sold except
to physicians or with a physician’s prescription, further
suggests that ‘no meaningful distinction can be drawn
between prescription drugs and prescription medical
devices.'” Keen v. C.R. Bard, Inc., 480 F. Supp. 3d 624,
635 (E.D. Pa. 2020) (Pratter, J.) (quoting Rosenberg v.
C.R. Bard, Inc., 387 F. Supp. 3d 572, 577 (E.D. Pa.
2019) (Robreno, J.) (both concluding that prescription
medical devices are categorically exempt from strict
liability).
However, the Pennsylvania Supreme Court’s evident
disfavor [*11] for categorical applications of comment k,
which it has expressed in cases more recent than Hahn,
compels this Court to conclude that the Pennsylvania
Supreme Court would likely opt for a case-by-case
determination of whether comment k applies to a given
medical device.1 See Ebert v. C.R. Bard, Inc., 459 F.
Supp. 3d 637, 652 (E.D. Pa. 2020) (Pappert, J.)
(concluding that prescription medical devices are not
categorically exempt from strict liability and require a
case-by-case determination).
2. Individualized Application of Comment K
Because comment k does not apply to the Bard filter
based on the filter’s general status as a medical device,
the Court must consider whether comment k
nonetheless applies to the Bard filter based on the
filter’s particular characteristics. Defendants cite a 1996
FDA memorandum (“Price Memo”) that discusses the
unavoidable risks of IVC filters (MSJ, SMF, Ex. 1), as
well as deposition testimony by Dr. Tortella to the same
effect (MSJ, SMF, Ex. 4 at 29-30). Plaintiffs present little
challenge to this evidence, only noting briefly that safer
alternatives to the Bard filter exist. (MSJ Resp. Br. 15.)
The Court finds that there is no genuine dispute of
material fact regarding whether the Bard filter is an
unavoidably dangerous [*12] product. The Price Memo
plainly recognizes the “well characterized” risks of IVC
filters, which include fracture, migration, tilt, and
perforation (MSJ, SMF, Ex. 1 at 68-71), and Plaintiffs
present no evidence to dispute the significance of these
risks. I will join two other judges in this District in finding
that the Bard filter falls into the category of products
“which, in the present state of human knowledge, are
quite incapable of being made safe for their intended
and ordinary use,” just like “drugs, vaccines, and the
1 At
oral argument, Plaintiff’s counsel drew the Court’s
attention to a recent opinion by another judge in this District
that drew distinctions between medical drugs and medical
devices. Cf. Spear v. Atrium Med. Corp., No. 22-CV-876, 2022
U.S. Dist. LEXIS 145085, 2022 WL 3357485, at *2 (E.D. Pa.
Aug. 12, 2022) (McHugh, J.) (denying a Rule 12(b)(6) motion
to dismiss and contrasting “drugs [that] are comprised of
biologics meant to interact with and have an effect upon
human tissue” with “medical devices, [that] at least before
implantation, are inert”).
Page 5 of 8
2022 U.S. Dist. LEXIS 148734, *12
like” that “cannot legally be sold except to physicians, or
under the prescription of a physician.” Restatement
(Second) of Torts § 402A (Am. L. Inst. 1965); see Ebert,
459 F. Supp. at 653 (“Based on the evidence, the Court
concludes that the Bard G2 filter is an ‘unavoidably
unsafe product,’ such that the Pennsylvania Supreme
Court would apply comment k to the filter, thereby
shielding Bard from a strict liability claim.”); accord
Keen, 480 F. Supp. 3d at 637.
The Court will therefore grant summary judgment to
Defendants on Plaintiffs’ strict liability claims.
c. Negligent Design
The Court further finds that Plaintiffs have produced
sufficient evidence to sustain their [*14] negligent
design claim. Plaintiffs cite deposition testimony by Dr.
Robert McMeeking, an expert in engineering and
materials science, that the Bard filter was designed such
that it was likely to “cause serious complications that
create significant risks for the patient”—risks that could
have been feasibly reduced. (MSJ Resp., OSMF, Ex. 44
at 91-92.) Dr. McMeeking also testified in his deposition
that Bard did not adequately test the filter (id. at 12950), which may support a jury finding that Bard had
actual or constructive knowledge that the Bard filter was
too dangerous to be used by anyone. Plaintiffs also cite
deposition testimony from Dr Hurst that Bard failed to
test the filter properly and that Bard’s preliminary trial
showed unexpected migrations and fractures. (MSJ
Resp., OSMF, Ex. 27 at 77.)
i. Applicable Law
“To prevail in a negligence action, a plaintiff ‘must show
that the defendant had a duty to conform to a certain
standard of conduct, that the defendant breached [*13]
that duty, that such breach caused the injury in
question, and actual loss or damage.'” Berrier, 563 F.3d
at 61 (quoting Phillips v. Cricket Lighters, 576 Pa. 644,
841 A.2d 1000, 1008 (Pa. 2003).
The Pennsylvania Supreme Court has held that “[u]nder
Pennsylvania law, pharmaceutical companies violate
their duty of care if they introduce a drug into the
marketplace, or continue a previous tender, with actual
or constructive knowledge that the drug is too harmful to
be used by anyone.” Lance, 85 A.3d at 461; accord
Ebert, 459 F. Supp. at 644; Keen, 480 F. Supp. 3d at
638 (applying this standard to medical devices).
ii. Analysis
Defendants assert that Plaintiffs cannot show that the
Bard filter was too harmful to be used by anyone,
emphasizing that no regulatory body or medical body
has taken this position. (MSJ Br. 22.) As an initial
matter, “[t]he Court is unaware of any instruction from
the Pennsylvania Supreme Court that a device can only
be ‘too harmful to be used by anyone’ if so decreed by a
regulatory body or medical society.'” Keen, 480 F. Supp.
3d at 640. It is the duty of a jury to determine how to
weigh that particular evidence, and Defense counsel
clarified at oral argument that this is merely a fact
favoring Defendants’ position rather than a requirement
for a plaintiff to prevail.
The Court concludes that Plaintiffs have mustered
sufficient evidence for a reasonable jury to find in their
favor on the negligent design claim. The Court will
therefore deny summary judgment on this claim.
iii. Negligent Failure to Warn
1. Applicable Law
“Under Pennsylvania law and what is known as the
learned intermediary doctrine, ‘a medical device
manufacturer has a duty to warn implanting [*15]
physicians about the dangers of a medical device, but
has no duty to warn patients directly.” Keen, 480 F.
Supp. 3d at 640-41 (quoting McLaughlin v. Bayer Corp.,
172 F. Supp. 3d 804, 831 (E.D. Pa. 2016) (Padova, J));
see also Lance, 85 A.3d at 442 (noting “this Court’s
adoption of the learned intermediary doctrine”). In a
negligent failure to warn case in which the learned
intermediary doctrine applies, “the issue to be
determined is whether the warning, if any, that was
given to the prescribing physicians was proper and
adequate.” Daniel v. Wyeth Pharms., Inc., 2011 PA
Super 23, 15 A.3d 909, 924 (Pa. 2011).
“In order to be deemed adequate as a matter of law, a
warning ‘must (1) accurately and unambiguously convey
the scope and nature of the risk, and (2) state the risk
with sufficient specificity.'” Keen, 480 F. Supp. 3d at 641
(quoting Schrecengost v. Coloplast Corp., 425 F. Supp.
3d 448, 462 (W.D. Pa. 2019)). However, “where fact
questions exist (e.g., regarding the sufficiency of the
warning for a particular risk identified in the label and
Page 6 of 8
2022 U.S. Dist. LEXIS 148734, *15
whether the warning was diluted by marketing
representations), the question of adequacy is one for
the jury.” In re Avandia Mktg., Sales Pracs. & Prod.
Liab. Litig., 817 F. Supp. 2d 535, 545-46 (E.D. Pa.
2011) (Rufe, J.).
2. Analysis
a. Adequacy of Warning
Defendants aver that the Instructions for Use (IFU)
accompanying the Bard filter stated that the filter’s
“potential complications” included migration of the filter,
perforation of the vena cava wall, and caval occlusion.
(MSJ Br. 19.) Because the alleged source of Maietta’s
injury [*16] was filter migration, argue Defendants, Bard
provided adequate warning to Maietta’s prescribing
physician, Dr. Tortella. (Id.)
Plaintiffs counter that, at the time the Bard filter was
implanted in Maietta, the IFU did not warn about
migration when the filter had been “properly positioned”
in patients with a normally sized vena cava, did not warn
about risk of infection from implantation of a foreign
body, did not warn about fracture, and did not warn
about the relationship between indwell time and
increased risk of filter failure. Moreover, submit
Plaintiffs, the IFU did not warn about the frequency of
these complications. Plaintiffs conclude that the IFU
failed to adequately warn Dr. Tortella of the
complications that Maietta allegedly experienced:
fracture, infection, and the filter becoming an inoperable
foreign body. (MSJ Resp. Br. 17-18.)
As other judges in this District presiding over similar
actions against Bard have found, “[t]he parties’ dispute
over the sufficiency of the warning is a classic inquiry for
the jury to decide.” Keen, 480 F. Supp. 3d at 641.
Underlying Plaintiffs’ negligent failure to warn claim is a
genuine factual dispute over the likelihood of particular
complications occurring—a dispute [*17] that must be
resolved to determine whether the warning was
adequate. Plaintiffs cite expert deposition testimony by
Dr. Hurst that the Bard filter’s IFU did not accurately
represent the likelihood of complications, such as those
that Maietta allegedly experienced, occurring. (MSJ
Resp., OSMF, Ex. 27 at 100-01, 105-06, 109-10.)
Plaintiffs cite similar testimony by Dr. McMeeking
suggesting that serious complications caused by the
Bard filter were not just possible, but “likely.” (MSJ
Resp., OSMF, Ex. 44 at 91-92.) A reasonable jury may
find, based on this testimony, that the IFU provided
insufficient warning to Dr. Tortella.
b. Causation of Warning
Defendants raise an additional argument that they are
entitled to summary judgment on Plaintiffs’ negligent
failure to warn claim because no reasonable jury could
find that a different warning would have altered Dr.
Tortella’s conduct. (MSJ Br. 20-21.) See Demmler v.
SmithKline Beecham Corp., 448 Pa. Super. 425, 671
A.2d 1151, 1155 (Pa. 1996) (“[P]laintiffs must further
establish proximate causation by showing that had
defendant issued a proper warning to the learned
intermediary, he would have altered his behavior and
the injury would have been avoided.” (citation omitted)).
The Court rejects Defendants’ argument. Plaintiffs
cite [*18] deposition testimony by Dr. Tortella that his
decision to prescribe the implanted Bard filter would
have been affected by knowledge of the unwarned-of
risks that Plaintiffs allege. (MSJ Resp., OSMF, Ex. 9 at
63-70, 78-79, 93-96.) Defendants counter that there is
no evidence that Dr. Tortella actually read the IFU
before prescribing the Bard filter, negating the
significance of any inaccurate or misleading information
it contained. (MSJ Reply Br. 6-7.) However, Plaintiffs
cite deposition testimony by Dr. Tortella that, as a
customary practice, he would have reviewed the IFU
and used it as a teaching aid. (MSJ Resp., OSMF, Ex. 9
at 54, 82.) A reasonable jury may well find that Dr.
Tortella would have acted differently had the information
in the IFU been different.
For these reasons, the Court will deny summary
judgment on Plaintiffs’ negligent failure to warn claim.
d. Misrepresentation and Concealment Claims
i. Applicable Law
Plaintiffs bring claims for negligent misrepresentation,
fraudulent
misrepresentation,
and
fraudulent
concealment, all of which share similar elements. To
prevail on a claim for negligent misrepresentation, a
plaintiff must establish “(1) a misrepresentation of a
material [*19] fact; (2) made under circumstances in
which the actor should have known of its falsity; (3) with
an intent to induce another to act on it; (4) thereby
causing injury to a party who justifiably relied upon the
Page 7 of 8
2022 U.S. Dist. LEXIS 148734, *19
misrepresentation.” Gregg v. Ameriprise Fin., Inc., 245
A.3d 637, 646 (Pa. 2021). To be found liable for
negligent misrepresentation, “the speaker need not
know his or her words are untrue, but must have failed
to make a reasonable investigation of the truth of these
words.” Bortz v. Noon, 556 Pa. 489, 729 A.2d 555, 561
(Pa. 1999).
misrepresentation claim survives summary judgment.”).
The elements of a fraudulent misrepresentation claim
are almost exactly the same as the elements of a
negligent misrepresentation claim. “The difference
between negligent misrepresentation and fraud in
Pennsylvania is intent—in fraud, a statement must be
made with actual knowledge or recklessness (rather
than negligence) as to its falsity.” Chaborek v. Allstate
Fin. Servs., LLC, 254 F. Supp. 3d 748, 752 (E.D. Pa.
2017) (McHugh, J.) (citing Kit v. Mitchell, 2001 PA
Super 94, 771 A.2d 814, 819 (Pa. Super. Ct. 2001)).
e. Loss of Consortium
Finally, “[t]he elements of fraudulent concealment are
identical [to fraudulent misrepresentation] except that
the wrongdoer intentionally conceals a material fact
rather than making an affirmative misrepresentation.”
Manning v. Temple Univ., No. 03-4012, 2004 U.S. Dist.
LEXIS 26129, 2004 WL 3019230, at *10 (E.D. Pa. Dec.
30, 2004) (Bartle, J.) (citing Gibbs v. Ernst, 538 Pa. 193,
647 A.2d 882, 889 n.12 (Pa. 1994)).
ii. Analysis
Defendants contend that Plaintiffs can neither establish
that Bard made any false or misleading statement to
them directly nor establish that they acted [*20] in
reliance on any such statement. (MSJ Br. 24.) As in
similar cases against Bard that were part of the same
multidistrict litigation, “[t]hese arguments largely track
the analysis already set forth in addressing the negligent
failure-to-warn claim.” Keen, 480 F. Supp. 3d at 645.
The Court finds that the factual disputes relevant to
Plaintiffs’ failure to warn claim are also relevant to
Plaintiffs’ misrepresentation and concealment claims. A
jury that credits Dr. Tortella’s and Dr. McMeeking’s
testimony may conclude that the allegedly inaccurate
information in the IFU constitutes a misrepresentation or
concealment that Dr. Tortella relied on in prescribing the
Bard filter to Maietta. See id. at 646 (“[A] reasonable
juror could conclude that Dr. Sacks relied on Bard to
expressly disclose more accurate, detailed information
than what was actually communicated to him about
adverse events associated with the G2X filter.
Therefore, the Court finds that [Plaintiff’s] negligent
Accordingly, the Court will deny summary judgment on
Plaintiffs’ claims for negligent misrepresentation,
fraudulent
misrepresentation,
and
fraudulent
concealment.
“Loss of consortium [*21] is an injury referring to ‘the
impact of one spouse’s physical injuries upon the other
spouse’s marital privileges and amenities.'” Shuker v.
Smith & Nephew, PLC, 885 F.3d 760, 777 (3d Cir.
2018) (quoting Darr Constr. Co. v. Workmen’s Comp.
Appeal Bd., 552 Pa. 400, 715 A.2d 1075, 1079-80 (Pa.
1998)). Although loss of consortium is “‘a . . . distinct
cause of action’ for ‘loss of services, society, and
conjugal affection of one’s spouse,’ [it] is a claim
‘derivative’ of a spouse’s separate claim of injury.'” Id. at
777-78 (quoting Darr, 715 A.2d at 1080).
Defendants submit that they are entitled to summary
judgment because Plaintiffs’ loss of consortium claim—
which addresses alleged loss experienced by Wilson—
is derivative of Plaintiffs’ other claims, which address
injuries to Maietta. Since all the claims addressing
injuries to Maietta fail as a matter of law, posit
Defendants, the loss of consortium claim must fail as a
matter of law too.
As Defense counsel stated at oral argument,
Defendants’ argument relies on the Court granting
summary judgment on all other claims in this case,
leaving the loss of consortium claim without any
separate claims from which to derive. As the Court is
allowing some of Plaintiffs’ other claims to proceed, it
will allow Plaintiffs’ loss of consortium claim to proceed
as well.
f. Punitive Damages
“[P]unitive damages . . . are proper only in cases [*22]
where the defendant’s actions are so outrageous as to
demonstrate willful, wanton or reckless conduct.”
Hutchison ex rel. Hutchison v. Luddy, 582 Pa. 114, 870
A.2d 766, 770 (Pa. 2005). They “are an ‘extreme
remedy’ available in only the most exceptional matters.”
Phillips v. Cricket Lighters, 584 Pa. 179, 883 A.2d 439,
445 (Pa. 2005). Determining whether a defendant’s
conduct is sufficiently outrageous as to warrant an
award of punitive damages is a role for the finder of fact,
Page 8 of 8
2022 U.S. Dist. LEXIS 148734, *22
so “the Court should decide the viability of a punitive
damages claim ‘only when no reasonable inference from
the facts alleged supports a punitive award.'” Keen, 480
F. Supp. 3d at 646 (quoting Soufflas v. Zimmer, Inc.,
474 F. Supp. 2d 737, 756 (E.D. Pa. 2007) (Robreno,
J.)).
BY THE COURT:
In the present case, there are genuine factual disputes
that the Court has reviewed that bear on the question of
whether Bard engaged in willful, wanton, or reckless
conduct. These include the likelihood of the Bard filter
causing particular complications and Bard’s knowledge
regarding the likelihood of those complications. With
these factual disputes unresolved, the Court cannot
grant summary judgment on the issue of punitive
damages.
End of Document
V. Conclusion
For the foregoing reasons, the Court will grant summary
judgment on the strict liability claims that Plaintiffs have
not withdrawn (Counts II and III). The Court will deny
summary judgment on Plaintiffs’ claims for negligent
design [*23] (Count IV), negligent failure to warn (Count
VII), negligent misrepresentation (Count VIII), fraudulent
misrepresentation (Count XII), fraudulent concealment
(Count XIII), and loss of consortium (Count XV). The
Court will also deny summary judgment on the issue of
punitive damages. An appropriate Order follows.2
ORDER RE: DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
AND NOW, on this 19th day of August, 2022, for the
reasons stated in the foregoing Memorandum and upon
careful consideration of Defendants C.R. Bard, Inc. and
Bard Peripheral Vascular, Inc.’s Motion for Summary
Judgment (ECF 66, 67, 68), Plaintiffs Laura Maietta and
Wesley Wilson III’s Response (ECF 79, 80), and
Defendants’ Reply (ECF 93), it is hereby ORDERED
that Defendants’ Motion is GRANTED as to the strict
liability claims and DENIED as to the other claims and
the issue of punitive damages.
2 As
stated at the conclusion of oral argument, the Court is
aware of pending Daubert motions and motions in limine.
These will be ruled upon if the Court’s suggestion that counsel
and their clients engage the skilled efforts of an experienced
mediator does not result in settlement—as has resulted in
many other cases coming out of this MDL. A final pretrial
conference will be scheduled.
/s/ MICHAEL M. BAYLSON
MICHAEL M. BAYLSON, U.S.D.J.
1 question
WEEK 3 ACTIVITY: PRODUCT LIABILITY LAW CASE SUMMARY
Week 3 Activity: Product Liability Law Case Summary
Overview – In this activity you are to review the product liability lawsuit case
given below and create a brief that summarizes its legal elements and holding. See
the Professor example in the Announcements, dated January 15, and in the
discussion threads and try to follow this same format. All answers should be in
paragraph form.
Instructions – Read Estate of Simpson v. GM, LLC.
Using the Week 3 Activity Template [DOCX], accurately summarize the
following regarding design, manufacturing, and failure-to-warn causes of action in
a brief that effectively lays out the following legal elements of the case:
•
•
•
•
•
•
•
•
•
•
•
•
Case facts.
Parties and their arguments.
Proceedings of the court case – what happened in the court(s)?
Applicable product liability defect law
The holding of the court and its reason(s).
LEG500 – Format for writing assignments:
Include page numbers
1-inch margins, double spaced throughout assignment
Times New Roman, 12-point type
Title Page centered, first page should include: Assignment name, your
name, professor name and date
Cite credible, scholarly sources in the text of the paper that corresponds to
the sources on the Source page. Type “Sources” centered on the last page of
the assignment. Record sources that you used in the assignment in a
numbered list as they appear in the paper, not alphabetically.
For each resource you use in your coursework, there are two things you must
do. First, add the resource to the Source list on the final page/slide. Second,
insert an in-text citation to each sentence which quotes, paraphrases, or
summarizes information from that resource. Make sure that each in-text
citation has a matching source list entry, and vice versa, before submitting
an assignment. See the video: https://youtu.be/jDKstcOUX8U
See Strayer Writing Standards link for in-text citations and sources on the
Source page. SWS Home – Strayer Writing Standards (SWS) – Strayer
University Library at Strayer University
Question 2
Discussion 3 question
Read Chapter 13 – Product Advertising and Liability
For this week, you will be researching two lawsuits in the legal database – one
based on a defective and unsafe product, and one based on deceptive warranty
and advertising. See below and discuss and answer the following:
1. The legal duty of manufacturers is to provide for safe products in the
marketplace today. Research using NEXIS-Uni Legal Database link below
and provide a lawsuit case, not an article, within the last three years of a
defective product liability case pursuant to an unsafe product. Be sure to
explain the law regarding design defect, manufacturing defect or failure to
warn cause of action and define and explain these terms and your case in
full.
2. The power of advertising influences consumer decisions about products
today. Explain the contract product liability warranty theories in the
chapter reading this week and research using NEXIS-Uni Legal Database
link below a lawsuit case where a product is unfairly and deceptively
advertised and violates the law as to one or more of the warranty
theories. See Section 13-2: Advertising as a Contract Basis for Product
Liability in the chapter reading.
Use the legal database here – NEXIS-Uni Legal Database
link: https://libdatab.strayer.edu/login?url=https://www.nexisuni.com or htt
ps://research.strayer.edu
Be sure to respond to at least one of your classmates’ posts.
Please be sure answers are researched, informed, and substantiated by citing
sources used at the bottom of your discussion post. See the Strayer Writing
Standards link in BB for help following citation requirements.
Here are two Example outline how the answer should be structured.
Good morning, Graduate Students. Welcome to Week 3! We are moving right
along – I hope you are all doing well.
Our focus this week is on liability for allegedly defective and unsafe products
AND deceptive advertising in violation of warranty protections per a product
liability cause of action. You are required to find and provide two different
type of lawsuit cases this week. One – defective product and the other – Breach
of warranty as to a product.
Product liability law protects from (1) deception per advertising by way of breach
of warranties AND (2) for a defective product per design defect, manufacturing
defect or a failure to warn defect in the marketplace. In other words, when a
product defect causes injury to someone, for example – a defective toaster that
catches fire when using it.
For deception per advertising, one of the cases in the chapter reading is about
when Listerine marketed itself as preventing colds. In actuality, it did not help to
prevent colds and the Federal Trade Commission ordered it to stop marketing itself
that way to the public. Why? Because consumers were buying it because they
believed it would prevent colds and anytime you try to fool consumers into buying
your product using false and misleading advertising – you have committed a
violation of an EXPRESSED warranty to the public. We can also have an
advertisement that is deceptive per an implied warranty. Be sure to explain these
in your answers.
The Federal Trade Commission (FTC) prevents “unfair and deceptive trade
practices.” It regulates whenever the public is being deceived by breach of an
expressed or implied warranty, regardless of any effects on competition. The FTC
considers:
•
•
Content and accuracy of an advertisement
• Performance claims of an advertisement
• Celebrity endorsements
• Bait and Switch tactics
• Product comparisons
When it comes to product defect (product causes injury), we look to tort law
– specifically either negligence or strict liability based on a design defect of the
product, a manufacturing defect of the product or a failure to warn of the inherently
dangerousness of the product. See the Restatement below as to strict liability:
§ 402A. Special Liability of Seller of Product For Physical Harm To User Or
Consumer
(1) One who sells any product in a defective condition unreasonably dangerous to
the user or consumer or to his property is subject to liability for physical harm
thereby caused to the ultimate user or consumer, or to his property, if
(a)the seller is engaged in the business of selling such a product, and
(b)it is expected to and does reach the user or consumer without substantial
change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of
his product, and
(b) the user or consumer has not bought the product from or entered into
any contractual relation with the seller.
Restatement Approach to Products Liability (harvard.edu)
Be sure to use the legal research database for your case law examples – it is the
required source for these cases and answers. Be sure your case examples
are recent and provide for the sources you use. The citation generator from
the legal database NEXIS-Uni is the citation you can use in your discussion
answers and in your writing assignments. No need to make changes to the
citation -just copy and paste it from the database.
Lastly – for the upcoming assignment, due next Monday – look at some of the
case summaries I have provided in the Announcements and in the discussion
threads and follow my lead. No one word answers – be sure to provide
thorough paragraphs and…show what you know.
Hope you have a wonderful Monday and holiday celebrating the contributions
of Dr. Martin Luther King, Jr.
Example 2
Good afternoon, Graduate Students. I hope you are doing well – see my case
example below of a product liability breach of warranty claim. Remember there
are two types of warranty breaches – expressed warranty and implied warranty of
merchantability and/or fitness. See the Michigan case below. Tomorrow, Tuesday
afternoon, I will have live office hours from 4 to 6 pm. See the link below and I
will send out a reminder tomorrow. This is not a lecture, just some time to log in
and talk one-on-one if needed. There will be a waiting room for privacy. Be well Professor Baggot – LIVE OFFICE HOUR Tomorrow, Tuesday from 4 pm to
6 pm
To log in and talk one-on-one with the Professor, see the link below and, there
will be a waiting room (this is not a lecture and will not be recorded)
https://strategiced.zoom.us/j/97036132767
Meeting ID: 970 3613 2767
[Genaw v. Garage Equip. Supply Company]
April, 2021
FACTS: The plaintiff, Marylynn Genaw, sued the defendant, Garage Equipment
Supply Company, alleging, amongst other things, a breach of an implied
warranty of merchantability when the portable light-duty four-post vehicle lift,
manufactured by the defendant, slipped across plaintiff’s garage floor and struck
her husband in the head and back causing injuries and his death.
The plaintiff alleges the car lift was defective and malfunctioned unexpectedly
when used for its “intended purpose” (1). Plaintiff’s son was driving a car on the
lift in their enclosed garage and the husband was standing next to it. When the car
got onto the lift, the lift shifted violently and suddenly and slid across the floor,
striking the plaintiff’s husband in the head and back and causing him to floor,
hitting his head again. The husband subsequently died from his injuries.
For a breach of implied warranty of merchantability claim, Michigan law
requires:
The plaintiff present direct or circumstantial evidence that “adequately supports a
reasonable inference that the accident was attributable to the manufacturer,
when using the product for its intended purpose, the product deviates from that
intended purpose” causing injury or damages (2).
What this means is that if you buy a product, consumers should expect to be able to
use the product for the purpose in which they bought it without defect or potential
injuries occurring. A consumer is required to use the product for that specific
intended purpose only and not for other reasons that a manufacturer cannot
foresee. (For example, using a chain saw to cut a birthday cake, ie. a real case).
Michigan law reads, “In the absence of special reason to expect otherwise, the
maker is entitled to assume that his product will be put to a normal use, for
which the product is intended or appropriate; and he is not subject to liability
when it is safe for all such uses, and harm results only because it is mishandled in
a way which he has no reason to expect or is used in some unusual and
unforeseeable manner (2).”
Pursuant to the text reading, the implied warranty of merchantability, per the UCC
Section 2-314, is given for every product that a “merchant” sells. A merchant
seller is the actual manufacturer of the product (life Ford), not a third party seller
(like a car dealership). The warranty merchant provides that the product or goods
sold are, “(c) fit for the ordinary purposes for which goods of that description are
used” (3). For example, if I buy a toaster, the toaster should work like a toaster
and not say, catch on fire when toasting bread, ie. another real case.
DISTRICT COURT: Dismissed the plaintiff’s lawsuit.
APPELATE COURT: Overturned the dismissal and reinstated the case for trial.
Why? The plaintiff had adequately filed a claim for her husband’s injuries in
alleging the product was defective. The court reasoned that the car lift certainly
was made to lift a car and any deviation from that purpose was enough to establish
a breach of implied warranty. Thus, the court wrote, “It strains credulity to
believe that a lift weighing hundreds of pounds, designed to elevate heavy and
expensive machinery, was intended to slide abruptly across the floor while in
use. This is especially true for a lift designed for use in an enclosed area with
limited space like a garage” (2).
What this means is that for car lift to suddenly slip and move when a car is driven
on it was certainly not something that should happen and not within the purpose
for which it is bought. Because of it sliding and moving, this defects from the
implied warranty of the product and it has the propensity to cause severe damage
and injury and even death, especially in an enclosed space.
The trial is pending.
SOURCES:
1. Genaw v. Garage Equip. Supply Co., 2021 U.S. App. LEXIS 10750, 2021 FED
App. 0187N (6th Cir.) (United States Court of Appeals for the Sixth Circuit April
13, 2021, Filed). Retrieved January 16, 2023 from https://advance-lexiscom.libdatab.strayer.edu/api/document?collection=cases&id=urn:contentItem:
62F4-J6T1-JJ6S-654M-00000-00&context=1516831.
2. No author. Retrieved January 16, 2023. Michigan §440.2316 – Uniform
Commercial Code (Act 174 of 1962), Michigan Legislature – Section 440.2316
3. Jennings, Marianne. (2022) Business: It’s legal, ethical and global environment
(12th edition) Mason, OH: Cengage Learning.
Question # 3 Bonus must follow the same format as above too
Good afternoon and hope you have a blessed Sunday. See an extra credit
opportunity below worth +10 points. Please email me your answers at
lori.baggot@strayer.edu and remember to provide what you know and understand
about the law specifically. Your answer must include an understanding of privacy
law and a source. This is due by the end of Week 3.
Also, remember that one of the most important stakeholders when facing litigation
and liability is the jury. Thus, “What would a jury think as to how I handle this
situation?”
• Dan’s Dry Cleaner has been in business for 30 years. Dan runs the store and
has three employees. Dan believes one of his employees, Leo, is dealing
drugs from the store.
• Dan sets up a camera in the store hallway next to the bathroom and points it
toward the back door. The back door locks from the outside so he figures if
someone is dealing drugs out back, they would leave the door open, and he
can catch them with the camera.
• One Monday, the camera malfunctions, and falls to the floor. Leo picks up
the camera and hides it in the lady’s bathroom. Dan’s camera videotapes
Bonnie, another employee, washing her hands in the sink.
• Bonnie finds out about the camera and is humiliated. She quits working and
asserts, “I can never use a public restroom again, I am going to be
homebound for the rest of my life.” Bonnie in fact never leaves her home,
develops depression, and commits suicide. Her family sues Dan’s Dry
Cleaner for wrongful death and invasion of her privacy.
• The company comes to you.
Would the family be successful in proving its case as to wrongful death and an
invasion of privacy claim against Dan’s Dry Cleaner, yes or no and why or why
not?
* To successfully sue for a wrongful death cause of action, the plaintiff must
show the following:
1) The death of a human being
2) The death was caused by another’s negligence OR with intent to cause harm
3) Damages to the surviving family or representatives because of the death
* Negligence – A failure to behave with the level of care that someone of ordinary
prudence would have exercised under the same circumstances.
Overview – Primary factors to consider in ascertaining whether the person’s
conduct lacks reasonable care are the foreseeable likelihood that the person’s
conduct will result in harm, the foreseeable severity of any harm that may ensue,
and the burden of precautions to eliminate or reduce the risk of harm. Negligent
conduct may consist of either an act, or an omission to act when there is a duty to
do so.
Four elements are required to establish a case of negligence:
1. The existence of a legal duty that the defendant owed to plaintiff.
2. Defendant’s breach of that duty.
3. Plaintiff’s damages/injuries.
4. Proof that defendant’s breach caused the injury/proximate cause of the
damages/injuries.
Restatement Third of Torts: Liability for Physical Harm § 3 (P.F.D. No. 1, 2005)
Restatement (Second) of Torts § 282 (1965)
Date and Time: Tuesday, January 17, 2023 10:42:00AM EST
Job Number: 188031055
Document (1)
1. Estate of Simpson v. GM, LLC, 2020 Mich. App. LEXIS 12
Client/Matter: -None-
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Neutral
As of: January 17, 2023 3:42 PM Z
Estate of Simpson v. GM, LLC
Court of Appeals of Michigan
January 2, 2020, Decided
No. 341961, No. 342291
Reporter
2020 Mich. App. LEXIS 12 *; 2020 WL 39978
ESTATE OF TRASK SIMPSON, by SCOTT SIMPSON,
Personal Representative, Plaintiff-Appellee/CrossAppellant, v GENERAL MOTORS, LLC, formerly known
as GENERAL MOTORS COMPANY, formerly known as
MOTORS LIQUIDATION COMPANY, formerly known
as GENERAL MOTORS CORPORATION, GONZALEZ
INTEGRATED MARKETING, doing business as
GONZALEZ DESIGN GROUP, GONZALEZ DESIGN
ENGINEERING, doing business as GONZALEZ
DESIGN GROUP, GONZALEZ TECHNICAL
SERVICES, doing business as GONZALEZ DESIGN
GROUP, GONZALEZ MFG TECHNOLOGIES, doing
business as GONZALEZ DESIGN GROUP, GONZALEZ
PRODUCTIONS SYSTEMS, doing business as
GONZALEZ DESIGN GROUP, and GONZALEZ
CONTRACT SERVICES, doing business as
GONZALEZ DESIGN GROUP, Defendants, and JWF
TECHNOLOGIES, LLC, doing business as JWF
CONTAINER TECH, and KEENER CORPORATION,
Defendants-Cross-Appellees, and STABILUS, INC.,
Defendant/Cross-Defendant-Appellant/Cross-Appellee,
and ZF NORTH AMERICA, INC., Defendant/CrossPlaintiff.ESTATE OF TRASK SIMPSON, by SCOTT
SIMPSON, Personal Representative, PlaintiffAppellee/Cross-Appellant, v GENERAL MOTORS, LLC,
formerly known as GENERAL MOTORS COMPANY,
formerly known as MOTORS LIQUIDATION
COMPANY, formerly known as GENERAL MOTORS
CORPORATION, GONZALEZ INTEGRATED
MARKETING, doing business as GONZALEZ DESIGN
GROUP, GONZALEZ DESIGN ENGINEERING, doing
business as GONZALEZ DESIGN GROUP, GONZALEZ
TECHNICAL SERVICES, doing business as
GONZALEZ DESIGN GROUP, GONZALEZ MFG
TECHNOLOGIES, doing business as GONZALEZ
DESIGN GROUP, GONZALEZ PRODUCTIONS
SYSTEMS, doing business as GONZALEZ DESIGN
GROUP, and GONZALEZ CONTRACT SERVICES,
doing business as GONZALEZ DESIGN GROUP,
Defendants, and JWF TECHNOLOGIES, LLC, doing
business as JWF CONTAINER TECH, Defendant-
Appellant/Cross-Appellee, and KEENER
CORPORATION, Defendant-Cross-Appellee, and
STABILUS, INC., Defendant/Cross-Defendant-CrossAppellee, and ZF NORTH AMERICA, INC.,
Defendant/Cross-Plaintiff.
Notice: THIS IS AN UNPUBLISHED OPINION. IN
ACCORDANCE WITH MICHIGAN COURT OF
APPEALS RULES, UNPUBLISHED OPINIONS ARE
NOT PRECEDENTIALLY BINDING UNDER THE
RULES OF STARE DECISIS.
Subsequent History: Leave to appeal denied by
Simpson v. GM, LLC, 2021 Mich. LEXIS 95 (Mich., Feb.
2, 2021)
Leave to appeal denied by Simpson v. GM, LLC, 2021
Mich. LEXIS 146 (Mich., Feb. 2, 2021)
Prior History: [*1] Genesee Circuit Court. LC No. 16107103-NO.
Simpson v. GM LLC, 2018 Mich. App. LEXIS 1501
(Mich. Ct. App., Apr. 17, 2018)
Core Terms
spring, manufacturer, ball, rack, rivet, stud, summary
disposition, misuse, foreseeable, express warranty,
circuit court, warranty, overextension, cylinder,
manufacturing defect, seller, proximate cause, no
evidence, sidewall, product liability, component
manufacturer, supporting evidence, piston, plaintiff’s
claim, discovery, email, breach of implied warranty,
component part, design defect, proximate
Judges: Before: M. J. Kelly, P.J., and Markey and
Gleicher, JJ.
Opinion
Page 2 of 16
2020 Mich. App. LEXIS 12, *1
Here is a photograph of the rack in the fully open
position; the rear wall is in the foreground:
PER CURIAM.
This product liability action arises from the explosion of
a gas spring. The spring was attached to the sidewall of
a large metal rack owned by General Motors. GM used
the rack to store and transport auto parts. Plaintiff Trask
Simpson was severely injured when the gas spring
violently separated as he raised the sidewall so that he
could repair the rack’s floor. The cylinder section of the
spring penetrated Simpson’s face, lodging in his sinus
cavity and brain.
Simpson claims that a manufacturing defect caused his
acc…