Thompson v. Sunbeam Prods. Inc.

Barbara K. Thompson, et al., Plaintiffs,

v.Sunbeam Products, Inc., et al., Defendants.

Case No. 2:10-cv-98

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Date: September 28, 2011

OPINION AND ORDER

This is a product liability action filed by plaintiffs Barbara K. Thompson and her husband, Marlin D. Thompson, against defendants Sunbeam Products, Inc. ("Sunbeam"), Jarden Consumer Solutions, a d/b/a name under which Sunbeam does business, Simatelex Manufacturing Co. ("Simatelex"), and Wal-Mart Stores, Inc. ("Wal-Mart"). The complaint was filed on October 7, 2009, in the Common Pleas Court of Gallia County, Ohio, and was removed to this court on February 3, 2010, based on diversity of citizenship. It is alleged in the complaint that Barbara Thompson was injured while using a hand mixer which was manufactured by Simatelex, a company located in Hong Kong, China, marketed in the United States by Sunbeam, and purchased by Mrs. Thompson at Wal-Mart.

The first five causes of action track the provisions of the Ohio Product Liability Act ("OPLA"), Ohio Rev. Code §§ 2307.71-2307.80. The first through fourth causes of action assert claims against Sunbeam and Simatelex for defective manufacture and/or construction (Ohio Rev. Code §2307.74); defective design and/or formulation (Ohio Rev. Code §2307.75); inadequate warnings (Ohio Rev. Code §2307.76); and nonconformance with manufacture'srepresentations (Ohio Rev. Code §2307.77). The fifth cause of action asserts a claim against Wal-Mart for supplier's liability (Ohio Rev. Code §2307.78). The complaint also includes causes of action based on the common law of product liability asserted against Sunbeam and Simatelex, including: the sixth cause of action for breach of the implied warranties of merchantability and fitness for use; the seventh cause of action for breach of the express warranties that the product was free from defects in workmanship and materials; the eighth cause of action asserting a claim of common law product liability; and the ninth cause of action for strict product liability. The thirteenth cause of action asserts a claim for breach of implied or express contract against Wal-Mart, alleging that Wal-Mart represented that the hand mixer was not unreasonably dangerous or defective. The fourteenth cause of action asserts a claim of common law negligence against all defendants. The tenth cause of action asserts a claim against all defendants for deceptive acts and unconscionable practices in violation of the Ohio Consumer Sales Practices Act ("CSPA"), Ohio Rev. Code §§1345.02 and 1345.03. The eleventh cause of action asserts a claim for punitive damages against Sunbeam and Simatelex,¹ and the twelfth cause of action asserts a claim on behalf of Mr. Thompson against all defendant for loss of consortium.

I. Background

Barbara Thompson purchased a Sunbeam Mixmaster at Wal-Mart on October 10, 2007. Thompson Dep. p. 11. She was familiar with electric hand mixers and had owned a Black & Decker mixer for about twenty years before purchasing the Sunbeam mixer. Thompson Dep. pp. 11-12. She removed the mixer from the box to test it to make sure it worked. Thompson Dep. p. 17. The box included an instruction booklet, which included the language "IMPORTANT SAFEGUARDS" in enlarged capital letters at the top of the page, and the language "READ ALL INSTRUCTIONS BEFORE USE" in slightly smaller capital letters. Under the "important safeguards" section was a bullet point stating "Unplug from outlet while not in use, before putting on or taking off parts and before cleaning." Another bullet point in that section stated, "Avoid contact with moving parts. Keep hands, hair, clothing, as well as spatulas and other utensils away from beaters during operation to reduce the risk of injury to persons and/or damage to the hand mixer." The next page of the instruction booklet included a section in enlarged capital letters on "INSTALLING ATTACHMENTS." Under this heading, the manual stated,

Make sure the speed control is in the "OFF" position and unplugged from an electrical outlet. Insert attachments one at a time by placing stem end into the opening on the bottom of the mixer. Turn attachment slightly and push in until it clicks into position. (See Figure A) Plug into the appropriate outlet. Turn mixer on and adjust speed setting using the control on the top of the unit.

The manual also contained a section in enlarged capital letters entitled "EJECTING BEATERS." This section stated, "Make sure the speed control is in the 'OFF' position and unplugged from an electrical outlet" prior to ejecting beaters." The bottom of thewhite mixer body also contained the following language, albeit barely legible, in white lettering: "Caution: Unplug before inserting or removing parts." Lawrence Dubois Dep. pp. 11-12, 49; Richard Prins Dep. p. 51.

Mrs. Thompson stated that she "browsed through" the instruction booklet, looking it over but "not word for word." Thompson Dep. p. 16. When asked if she read the "important safeguards" section, she stated she "looked it over, but I didn't go word for word; skimmed or whatever." Thompson Dep. p. 16. She did not review the entire manual. Thompson Dep. p. 18. She inserted the beaters and pushed them until they clicked. Thompson Dep. p. 19. When she plugged in the mixer, it came on automatically. Thompson Dep. p. 19. She thought she had looked at the switch before plugging in the mixer, but it was possible that she didn't. Thompson Dep. p. 18. She stated she did not know if the switch was in the "on" position, or, if it was, how it got in that position. Thompson Dep. p. 19. She also had no evidence that the control mechanism or switch malfunctioned in any way. Thompson Dep. p. 20. Mrs. Thompson stated that one of the beaters started to come down. She stated she had no knowledge as to whether the locking mechanism for the beaters was malfunctioning. Thompson Dep. p. 25. She stated that she "went like that to push it up (indicating). I didn't think. I just - it was just a reflex, you know. I just automatic [sic] went up there, wasn't thinking." At that point, her finger got caught in the beaters and was almost completely severed. Thompson Dep. p. 17.

Mrs. Thompson testified that at the time, she was holding the mixer's handle with her right hand in the air. One of the beaters was not fully seated and she moved to put it back in with her lefthand while the power was on and the other beater was still turning. Thompson Dep. pp. 21-22. When asked why she did that, she stated, "It was just a reflex. I don't know. I just - just did it without thinking." Thompson Dep. p. 22. She was asked whether the language in the manual that said "avoid contact with moving parts" would suggest to her that one should not put his or her hand on a moving part, she responded, "But I wasn't thinking." Thompson Dep. p. 25.

Mrs. Thompson acknowledged that the instruction booklet included a direction to make sure the speed control is in the "off" position and unplugged from and electrical outlet. Thompson Dep. pp. 26-27. She did not know if she checked to make sure that the speed control was in the "off" position before inserting the beaters, and she did not recall whether she turned the beater slightly, as instructed. Thompson Dep. p. 27. She did not look at the warning language that was imprinted on the body of the mixer. Thompson Dep. p. 27-28.

Mrs. Thompson's ring finger was pulled into the two beaters. Thompson Dep. p. 28. She tried unsuccessfully to turn the mixer off and finally placed it on the counter and unplugged it. Thompson Dep. p. 28. Her finger was lodged in between the beaters and was still attached on one edge. Thompson Dep. p. 29. She also sustained cuts on the underside of her third and fifth fingers. Thompson Dep. p. 30. She called to her husband for assistance, and she was taken to the hospital. Thompson Dep. p. 30-31. Her finger was later amputated in the knuckle area.

Richard J. Prins, a senior director product safety engineer employed by Sunbeam, testified concerning the hand mixer. He has been employed by Sunbeam since 1980. Prins Dep. p. 8. The mixerpurchased by Mrs. Thompson has a UL listing mark on it that indicated that the product was UL approved. Prins Dep. p. 11. Prins was previously employed by Underwriters Laboratories ("UL"), a business which generates safety standards for products and tests products for compliance with those standards. Prins Dep. p. 10. Products bearing the UL mark must submit the product to UL for testing, and the product must be manufactured in accordance with the submitted product specifications. Prins Dep. p. 11. UL also conducts four unannounced inspections of the manufacturing facility to make sure that the product is still in compliance, and completes additional testing of samples of the product once a year. Prins Dep. p. 11.

The mixer purchased by Mrs. Thompson was the Sunbeam Mixmaster model 2524, which was manufactured and designed by Simatelex, a Chinese corporation. Prins Dep. pp. 12-13. After a mixer design is submitted to Sunbeam and approved by Sunbeam's marketing department, the design is submitted to the engineering department to start a product specification. Prins Dep. pp. 14, 22. The design goes through a qualification process, which includes a third-party testing by UL. Prins Dep. p. 23. UL tests the design to its standards. The design goes through an engineering build in a pre-pilot manufacturing and production area, and must meet certain quality criteria established by the engineering department. Prins Dep. pp. 23-24. The mixer is also subjected to life testing (long continuous operation) and heavy load testing. Prins Dep. pp. 63-64. When the mixer is in production at Simatelex, Sunbeam's quality organization in Hong Kong goes to the plant, verifies that the manufacturer performed required tests, and randomly picks samples to make sure that the mixers are properly packaged andoperate properly....