Woke Court Mostly Denies Albertson’s Motion to Dismiss Drowsy’ Woman’s Complaint and Class Allegations

Plaintiff Patricia Gibson purchased some daytime, non-drowsy cough medication from defendant Albertson’s Companies, Inc. (Albertson’s). She alleges that she was harmed when she became sleepy after taking the medication, and she sued, alleging statutory claims under Illinois law, breach of warranty, and misrepresentation, on behalf of a purported class of similarly situated individuals. Albertsons’ moved to dismiss the class allegations and the complaint.

In Gibson v. Albertson’s Companies, Inc., the District Court for the Eastern District of Illinois denied the motion to dismiss the class allegations and granted the motion to dismiss the complaint’s warranty claims and with respect to products that Ms. Gibson did not purchase. We will skip over the denial of the motion to dismiss the class allegations, because that’s a matter of civil procedure and not contracts. The issues relating to plaintiff’s standing to bring class allegations relating to products that she did not purchase are similarly procedural and thus barred from this Blog. There is an interesting discussion of federal pre-emption issues, but that is really a matter of U.S. constitutional law.

The part of the opinion that is of concern to this Blog really begins on page 28, when the Court undertakes a discussion of the claim for breach of an express warranty.  The Court dismissed the express warranty claim because Ms. Gibson did not give Albertson’s adequate notice of her claims as required under UCC §2-607. Ms. Gilbert gave notice in a timely manner, notifying Albertson’s of her dissatisfaction one month after her purchase of the offending cough syrup. However, she filed her suit four days later. As the purpose of the notice requirement is to give the defendant the opportunity to address the alleged breach of warranty, sending by mail a notice of dissatisfaction is inadequate, at least when the defendant is a behemoth such as Albsertson’s, where it takes some time for the issue to percolate through the appropriate filters. 

There are exceptions under  §2-607 where the defendant is already aware of the defects or where the plaintiff suffers personal injury. I take it that, whatever adverse effects Ms. Gibson suffered from the medication, she was not injured. She argues only that Albertson’s was already aware of the product’s defects and that the timeliness of her notice was to be put to a jury. The Court cited to Illinois case law that provides that “The actual knowledge exception to the notice requirement ‘is satisfied only where the manufacturer is somehow apprised of the trouble with the particular product purchased by a particular buyer.” To my mind, this reading of the exception swallows the exception almost entirely. Wouldn’t it almost always be the case the case that the seller would learn of a plaintiff’s particular injury only when the plaintiff provides notice?  As to whether the time issue was one for the jury, the Court found, sensibly, I think, that there was no jury that would find the notice here reasonable.

I’m happy to have discovered this case. I’ve never had a good case for teaching the § 2-607 notice requirement. Now I do.

In order to state a claim under the Magnusson Moss Warranty Act (Mag-Moss) claim, one has to have a warranty claim under state law.  Because the notice issue was fatal to the Mag-Moss claim, the Court also dismissed Ms. Gibson’s Mag-Moss claim.

The case can now proceed, with its class allegations intact, as to all claims except the warranty claims and as to all products that Ms. Gibson purchased.