The opinion of the court was delivered by: Conti, District Judge.
In this memorandum order, the court considers the motion for summary judgment (Doc. No. 26) filed by defendants Campbell Soup Company ("Campbell Soup") and Target Corporation ("Target," together with Campbell Soup, the "defendants") with respect to all claims against defendants asserted by plaintiffs Mary Ann Schrim ("M.S.") and her husband, Frank Schrim ("F.S.," together with M.S., the "plaintiffs"). These claims include M.S.'s claims of strict product liability based upon alleged failure to warn against manufacturer Campbell Soup and seller Target and F.S.'s claim of loss of consortium against both defendants. After considering the joint statement of material facts and the respective submissions of the parties, the court will grant defendants' motion for summary judgment on all claims for the reasons set forth herein.
On October, 31 2003, M.S. was working at Rubey's Dry Cleaning. Defendants' Appendix to Concise Statement of Material Facts ("Def. App."), Ex. A (Deposition of Mary Ann Schrim)("Schrim Dep.") at 18, 42. At the time of the incident M.S. was alone in the building and preparing Campbell's Soup at Hand, the product at issue in this lawsuit (the "product"), for her lunch. (Schrim Dep. at 42).
M.S. was in the habit of eating tomato-flavored Campbell's Soup at Hand every Friday at work since Campbell Soup introduced the product to the market in approximately 2002. (Schrim Dep. at 18). M.S. never experienced any problems with the product before October 31, 2003. (Schrim Dep. at 19).
On October 31, 2003, M.S. read the directions on the label affixed to the product. (Schrim Dep. at 31). She testified that she had read the directions every time she prepared the product at work since beginning to use the product. (Schrim Dep. at 31). M.S. testified that on the date of the incident she read the directions on the can and followed them. (Schrim Dep. at 1). The directions instructed:
Microwave Directions: SHAKE BEFORE OPENING
Microwave ovens vary. Time given is approximate.
1. Remove plastic cap, set aside. Do not heat soup with cap on.
2. Pull tab to remove metal lid and discard.
Remaining metal rim is microwaveable.
3. Microwave uncovered on HIGH 1 min. 15 sec. (For Convenience Store (1700 watt) oven, microwave uncovered on HIGH 45 sec.)
4. Careful, leave in microwave 1 min., then stir thoroughly for even soup temperature
Note: After tasting, if you like warmer soup, remove cap and heat an additional 15 sec. CAUTION: Metal edges are sharp. Container and soup are HOT after heating.
Def. App., Ex. B (Soup at Hand label) (the "label") (emphasis in original).*fn1
M.S. testified that she could not recall for how long she ordinarily would heat the product; M.S., however, indicated that she typically heated other food items brought from home for four minutes. (Schrim Dep. at 25). M.S. acknowledged that the heating time on the label affixed to the product is one minute and fifteen seconds. (Schrim Dep. at 71); see (Def. App. Ex. B). M.S. testified that the microwave could be set to exactly one minute and fifteen seconds on high. (Schrim Dep. at 71). The photograph of the microwave shows that the microwave cannot be set to include exact seconds because the microwave time is controlled by a dial and that the recommended time on the microwave for preparing soup is between two and four minutes. (Def. App. Ex. C) ( photograph of microwave) (the "photo"). The dial on the microwave indicates a marking for each minute, as well as another marking between each minute marking. Id. There does not appear to be a way to set the microwave for exactly one minute and fifteen seconds as M.S. testified that she did. Id.
When giving her deposition, M.S. reviewed the label. (Schrim Dep. at 70). Throughout this review, M.S. indicated that she recalls direction number four, warning consumers to leave the product in the microwave for one minute after heating before handling it, which she indicated she did not do on the day of the incident or any day prior to the incident when she prepared the product. (Schrim Dep. at 73). In addition, M.S. testified that she had not heated the product for an additional fifteen seconds as the directions noted may be necessary for warmer soup. (Schrim Dep. at 76). Furthermore, M.S. testified in her deposition that she knew the soup would be hot on October 31, 2003, and had never experienced a time when she thought the soup was too hot. (Schrim Dep. at 76-77).
Throughout her deposition, M.S. testified several times that she read the directions on the label on the day of the incident and all other times she had used the product. (Schrim. Dep. at 25, 31, 32, 75 ). For example, M.S. testified:
Q: Do you know whether or not you read the instructions on the product the day that your accident happened?
Q: You remember that affirmatively?
Q: Do you believe you followed the instructions on the day of the accident?
(Schrim Dep. at 31). M.S., however, also indicated that she did not wait the instructed one minute before removing the product from the microwave. (Schrim Dep. at 26, 31, 73, 75, 76, 96). She testified:
A: The bell would ding and I would open it up and remove it.
Q: When you say "open it up," what do you mean?
A: Open the door of the ...