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LEE v. BOYLE-MIDWAY HOUSEHOLD PRODS.

May 12, 1992

LOUIS LEE, Plaintiff,
v.
BOYLE-MIDWAY HOUSEHOLD PRODUCTS, INC. and AMERICAN HOME PRODUCTS CORP., Defendants, v. ZEP MANUFACTURING COMPANY and NATIONAL SERVICE INDUSTRIES, INC., Third-Party Defendants.


Lewis


The opinion of the court was delivered by: TIMOTHY K. LEWIS

Lewis, J.

 Plaintiff Louis Lee brings the above-captioned case to recover for injuries he sustained when drain cleaner he had used to unclog his kitchen sink erupted while he was bent over the sink. Although plaintiff at one time asserted claims against both the defendants and the third-party defendants, he has settled with the third-party defendants, which will be referred to collectively as "Zep" in this opinion. *fn1"

 Plaintiff asserts three substantive claims -- strict products liability, breach of warranty and negligence -- against defendants Boyle-Midway Household Products, Inc. ("Boyle-Midway") and American Home Products Corporation ("AHP"). In a separate count of his amended complaint, plaintiff also seeks punitive damages. The parties disagree upon the extent of plaintiff's claims, but a fair reading of plaintiff's amended complaint and other pretrial submissions indicates that, although his primary claim is based upon lack of adequate warnings, he has also asserted that defendants' product is defective in other ways. Pennsylvania law governs his claims.

 Boyle-Midway, AHP and Zep have all filed motions for summary judgment. The court will grant those motions.

 I. Summary Judgment Standard

 Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment may be entered when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

 Once a defendant has identified portions of the record that demonstrate the absence of a factual dispute as to an essential element of a plaintiff's case, plaintiff must come forward with evidence beyond the pleadings which creates a genuine issue as to that element. Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The court must view the facts, the evidence and reasonable inferences therefrom in the light most favorable to the non-moving party. Tigg Corp. v. Dow Corning Corp., 822 F.2d 358, 361 (3d Cir. 1987).

 II. AHP's Motion for Summary Judgment

 Initially, the court will consider the motion for summary judgment filed by AHP on March 4, 1992. By order dated March 5, 1992, plaintiff was ordered to respond to defendant's motion for summary judgment by March 30, 1992. At that time, plaintiff was advised that "failure to respond may result in [his] being deemed not to oppose the motion." Although plaintiff has responded to Boyle-Midway's motion and arguments in great detail, plaintiff has neither filed a document obviously responding to AHP's motion (for example, one titled "response to AHP's motion") nor mentioned AHP or its arguments while responding to Boyle-Midway's motion. On that basis alone, the court could grant AHP's motion.

 In addition, however, AHP has demonstrated that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. That is, plaintiff's claims against AHP (which is Boyle-Midway's parent corporation) are based entirely upon a theory of piercing the corporate veil; AHP has demonstrated that plaintiff cannot advance evidence sufficient to pierce the corporate veil in order to impose liability on it; and plaintiff -- because he has failed to respond -- has failed to point to any evidence to the contrary. Celotex Corp. v. Catrett, 477 U.S. at 322. AHP's motion will be granted.

 III. Boyle-Midway's Motion for Summary Judgment

 Because plaintiff has settled his direct claim against third-party defendant Zep, the only claims asserted by plaintiff which remain are those alleged against Boyle-Midway. Boyle-Midway seeks summary judgment against plaintiff on two grounds: spoliation of evidence by plaintiff's counsel and preemption. *fn2" The court will grant Boyle-Midway's motion on both grounds, with a very limited opportunity for plaintiff to convince the court that it should reconsider its decision as to the first ground.

 A. Spoliation of Evidence

 The first argument Boyle-Midway advances in favor of summary judgment is that plaintiff's counsel did not provide it with, and in fact lost, the can of drain cleaner which plaintiff allegedly used immediately prior to the eruption which injured him. Plaintiff contends that that can contained Lewis Red Devil Lye Drain Opener, which is manufactured by Boyle-Midway. Boyle-Midway argues that it has been severely prejudiced by its inability to examine the can because the identity of the product is at issue.

 It is undisputed that, during discovery, Boyle-Midway and Zep requested that plaintiff's counsel produce the containers of two drain cleaners which plaintiff allegedly used immediately prior to the eruption. After several responses indicating that plaintiff's counsel was searching for the containers in his law firm's "evidence area," plaintiff's counsel finally stated, "The plaintiff does not know the whereabouts of the products containers and therefore cannot produce them." Plaintiff's Continuing Answer to Interrogatories of Defendant Boyle-Midway and Response to Requests for Production, attached as Exhibit D to Boyle-Midway's motion for summary judgment.

 Apparently, sufficient evidence exists to confirm that the first drain cleaner plaintiff used was manufactured by Zep. Therefore, plaintiff's failure to produce the container of the drain cleaner he initially used in attempting to unclog his kitchen sink is immaterial. Boyle-Midway seeks summary judgment because plaintiff has failed to produce the container of drain cleaner which he used immediately prior to the eruption, however. Plaintiff alleges that the second product he used was Lewis Red Devil Lye Drain Cleaner, which is manufactured by Boyle-Midway, but evidence of record conflicts on that point.

 Boyle-Midway suggests that the evidence conflicts in part because, during medical examinations, plaintiff referred to his injuries as having been caused by "Drano." Granting reasonable inferences to the plaintiff, however, the court does not believe that this description of his accident was anything more than the use of a generic term to describe all drain cleaners. The court does not accept that the plaintiff's identifying the products ...


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