Peerless Ins Co et al v. Broan-Nutone LLC et al

Filing 54

RULING denying 42 Motion to Preclude; granting in part and denying in part 44 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 2/22/2012. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
PEERLESS INSURANCE CO. and
SAFECO INSURANCE CO,
Plaintiffs,
v.
BROAN-NUTONE LLC and JAKEL
MOTORS INCORPORATED
Defendants.

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CIVIL ACTION NO.
3:10-CV-0868 (JCH)

FEBRUARY 22, 2012

RULING RE: DEFENDANTS’ MOTION TO PRECLUDE PROFFERED EXPERT
TESTIMONY (Doc. No. 42) AND MOTION FOR SUMMARY JUDGMENT
(Doc. No. 44)
I.

INTRODUCTION
Plaintiffs, Peerless Insurance Co. (hereafter “Peerless”) and Safeco Insurance

Co. (hereafter “Safeco”) bring this subrogation action against defendants, BroanNuTone LLC (hereafter “Broan-NuTone”) and Jakel Motors Inc. (hereafter “Jakel”) for
damages resulting from a fire at a warehouse which was owned and rented by the
plaintiffs’ insured. Plaintiffs allege violations of the Connecticut Products Liability Act
(hereafter “CPLA”), Conn. Gen. Stat. § 52-572m, et seq, and breach of warranty.
Defendants now seek to preclude one of plaintiffs’ experts, Oscar Berendsohn,
from testifying. In addition, defendants seek summary judgment on all of plaintiffs’
claims.
II.

STATEMENT OF FACTS
On or about March 28, 2009, a fire occurred at a warehouse commercial building

located at 2 Toelles Road, Wallingford, Connecticut (hereafter “the premises”). Defs.’
L.R. 56(a)(1) Stmt. ¶ 1; Pls.’ L.R. 56(a)(2) Stmt. ¶ 1. The building is owned by DFP
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Enterprises. Defs.’ L.R. 56(a)(1) Stmt. ¶ 1; Pls.’ 56(a)(2) Stmt. ¶ 1. At the time of the
fire, Connecticut Direct Mail was a tenant at the premises. Defs.’ L.R. 56(a)(1) Stmt. ¶
2; Pls.’ L.R. 56(a)(2) Stmt. ¶ 2. Peerless was the real and personal property insurer of
DFP Enterprises. Defs.’ L.R. 56(a)(1) Stmt. ¶ 3; Pls.’ L.R. 56(a)(2) Stmt. ¶ 3. Safeco
was the real and personal property insurer of Connecticut Direct Mail. Defs.’ L.R.
56(a)(1) Stmt. ¶ 4; Pls.’ 56(a)(2) Stmt. ¶ 4.
Plaintiffs claim that the cause of the fire was a defective ceiling fan, which was
manufactured by Broan-NuTone. Defs.’ L.R. 56(a)(1) Stmt. ¶ 5; Pls.’ L.R. 56(a)(2) Stmt.
¶ 5. The fan contained a motor manufactured by Jakel. Defs.’ L.R. 56(a)(1) Stmt. ¶ 5;
Pls.’ L.R. 56(a)(2) Stmt. ¶ 5. The subject fan is a NuTone Model 696N, and was
manufactured in May 2003 by Broan-NuTone. Defs.’ L.R. 56(a)(1) Stmt. ¶ 6; Pls.’ L.R.
56(a)(2) Stmt. ¶ 6. The parties believe that the motor found in the subject fan following
the fire is a Jakel model J239-5138 motor. Defs.’ L.R. 56(a)(1) Stmt. ¶ 7; L.R. 56(a)(2)
Stmt. ¶ 7.
III.

MOTION TO PRECLUDE
As defendants’ Motion for Summary Judgment rests in large part on the outcome

of its Motion to Preclude, the court will address the Motion to Preclude first.
A.

Standard of Review

Pursuant to the Rules of Evidence, expert testimony is properly admitted where it
“will assist the trier of fact to understand the evidence or determine a fact in issue,” and
“(1) is based upon sufficient facts or data, (2) the testimony is the product of reliable
principles and methods, and (3) the witness has applied the principles and methods
reliably to the facts of the case.” Fed. R. Evid. 702. It is up to the court to ensure that

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an expert’s testimony “rests on both a reliable foundation and is relevant to the task at
hand.” See Daubert v. Merrell Dow Pharms., 509 U.S. 579, 597 (1993). Generally,
courts should consider: (1) whether the theory or technique upon which the expert relies
can be tested; (2) whether the theory or technique has been subject to peer review and
publication; (3) the known or potential rate of error; (4) the existence and maintenance
of standards controlling the technique’s operation; and (5) whether the theory or
technique has been widely accepted by the relevant scientific community. See id. at
593–94; see also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 148 (1999) (applying
Daubert factors to all expert testimony). The party proffering the expert testimony bears
the burden of demonstrating its admissibility by a preponderance of the evidence. See
Daubert, 509 U.S. at 592, n. 10.
B.

Discussion

Defendants assert that Berendsohn’s testimony should be precluded because
Berendsohn failed to follow a recognized method of fire investigation in determining the
cause of the fire, and because his conclusions are not supported by adequate facts and
data.
1.

Berendsohn’s Chosen Technique

Defendants argue that the court should preclude Berendsohn’s testimony
because Berendsohn failed to follow the methods and procedures set forth in the
National Fire Protection Association’s NFPA 921 Guide for Fire and Explosion
Investigations (hereafter “NFPA 921”) or use any other generally accepted methods.
See Mem. Supp. Mot. at 11. Plaintiffs respond that Berendsohn’s methods are equally

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reliable, and need not comply with NFPA 921 in order to be admissible. See Mem. in
Opp. at 10.
NFPA 921 requires an investigator to “use the scientific method . . . as the
method for data gathering, hypothesis development, and hypothesis testing regarding
the consideration of potential ignition sources.” See NFPA 921 § 18.5.3. Though
Berendsohn may not have cited to NFPA 921 in preparing his report, it appears that his
methods were consistent with these standards. For instance, Berendsohn established
various hypotheses and tested them in order to form his conclusions. See Mem. in
Opp. at 12–13. Further, Berendsohn identified the device responsible for the ignition of
the fire, the first material ignited, and the source of heat energy required for ignition.
See id. at 11. Though defendants may quarrel with Berendsohn’s methods, such
disputes are best addressed in cross-examination, and do not require preclusion. See
McCullock v. H.B. Fuller Co., 61 F.3d 1038, 1044 (2d Cir. 1995).
2.

Berendsohn’s Facts and Data as a Basis for his Conclusions

Next, defendants argue that Berendsohn’s testimony is inadmissible because no
analytical connection exists between his testing and data, and the conclusions he draws
from them. See Mem. Supp. Mot. at 15. Defendants point to several hypotheses which
it contends are wrong, and also posits that Berendsohn’s fire causation theory relies on
improper testing. See id. at 15–24.
Defendants first argue that Berendsohn’s hypotheses regarding the pores of the
motor, heat contribution, and the thermal cut-out’s failure are wrong and points to its
own experts, who concluded differently. See Mem. Supp. Mot. at 15–21. In applying
the Daubert factors, a court “must focus on the principles and methodology employed

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by the expert, without regard to the conclusions the expert has reached or the district
court’s belief as to the correctness of those conclusions.” See Amorgianos v. Nat’l R.R.
Passenger Corp., 303 F.3d 256, 266 (2d Cir. 2002). These disagreements between
Berendsohn’s testimony and the testimony of defendants’ experts are factual disputes
that go to the weight of the testimony. Defendants may examine any discrepancies in
Berendsohn’s findings on cross-examination, and the jury will determine the credibility
of each witness. It is not for the court to preclude plaintiffs’ expert witness based on this
type of conclusory disagreement.
Finally, defendants argue that Berendsohn’s fire causation theory relies on
improper testing because Berendsohn “fundamentally alter[ed]” the motor as a product
prior to conducting his tests. See Mem. Supp. Mot. at 21–24. Plaintiffs respond that
Berendsohn actions were meant to replicate the conditions present in the subject motor
and fan, not alter them. See Mem. Opp. Mot. at 20–21. Again, this dispute appears to
be a factual dispute between the expert witnesses. Berendsohn’s conclusions depend
on his hypotheses that the thermal cut-out was defective and non-operational, and that
lint that had accumulated in the motor was the first material that ignited. See id. at 11,
21. As a result, his tests attempt to replicate these conditions. See id. Defendants
contest these hypotheses. See Mem. Supp. Mot. at 23–24. This type of a dispute is
best left to the jury to decide and is not a basis to preclude Berendsohn’s testimony.

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III.

MOTION FOR SUMMARY JUDGMENT
A.

Standard of Review

A motion for summary judgment “may properly be granted . . . only where there is
no genuine issue of material fact to be tried, and the facts as to which there is no such
issue warrant judgment for the moving party as a matter of law.” In re Dana Corp., 574
F.3d 129, 151 (2d Cir. 2009). Thus, the role of a district court in considering such a
motion “is not to resolve disputed questions of fact but only to determine whether, as to
any material issue, a genuine factual dispute exists.” Id. In making this determination,
the trial court must resolve all ambiguities and draw all inferences in favor of the party
against whom summary judgment is sought. See Loeffler v. Staten Island Univ. Hosp.,
582 F.3d 268, 274 (2d Cir. 2009).
“[T]he moving party bears the burden of showing that he or she is entitled to
summary judgment.” United Transp. Union v. Nat’l R.R. Passenger Corp., 588 F.3d
805, 809 (2d Cir. 2009). Once the moving party has satisfied that burden, in order to
defeat the motion, “the party opposing summary judgment . . . must set forth ‘specific
facts’ demonstrating that there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d
255, 266 (2d Cir. 2009) (quoting Fed. R. Civ. P. 56(e)). “A dispute about a ‘genuine
issue’ exists for summary judgment purposes where the evidence is such that a
reasonable jury could decide in the non-movant’s favor.” Beyer v. County of Nassau,
524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d
Cir. 2007)); see also Havey v. Homebound Mortg., Inc., 547 F.3d 158, 163 (2d Cir.
2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)) (stating that a

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non-moving party must point to more than a mere “scintilla” of evidence in order to
defeat a motion for summary judgment).
B.

Discussion

Defendants first state that they are entitled to summary judgment with regard to
plaintiffs’ CPLA claims because Berendsohn’s testimony is inadmissible and,
consequently, plaintiffs cannot make out a prima facie case of liability under the CPLA.
In addition, defendants assert that without Berendsohn’s testimony, plaintiffs cannot
prevail on their breach of warranty claims. See Mem. Supp. Mot. Summ. J. at 4–7. As
the court has found that Berendsohn’s testimony is admissible, defendants are not
entitled to summary judgment on these grounds for either the CPLA claims or the
breach of warranty claims.
Next, defendants argue that they are entitled to summary judgment as to
plaintiffs’ breach of warranty claims because plaintiffs’ claims must be brought pursuant
to the Uniform Commercial Code, and plaintiffs cannot demonstrate that privity of
contract exists between plaintiffs’ insureds and the defendants.1 See Mem. Supp. Mot.
Summ. J. at 7–11. Plaintiffs respond that their breach of warranty claims are based on
common law, and Connecticut law does not require privity of contract for a common law
breach of warranty claim. See Mem. Opp. Mot. Summ. J. at 8–11. In response,

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Defendants’ argument is based on an exception to the CPLA, which provides that “between
commercial parties, commercial loss caused by a product is not harm and may not be recovered by a
commercial claimant in a product liability claim” and instead, is governed by the Uniform Commercial
Code. See Conn. Gen. Stat. § 52-572n(c); Reply at 5. Here, however, plaintiffs specifically state that
they “do not claim damages for commercial losses” and instead, claim “damages . . . for damage to
property other than the subject fan itself.” See Mem. Opp. Mot. Summ. J. at 11. Consequently, the court
will not address whether plaintiffs’ claims could go forward under a theory of commercial loss.

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defendants contend that, if plaintiffs’ claims are based on common law, they are
improper pursuant to the CPLA’s exclusivity provision, Conn. Gen. Stat. § 52-572n(a).
See Reply at 5–6.
Section 52-572n(a) of the Connecticut General Statutes provides that a “product
liability claim . . . may be asserted and shall be in lieu of all other claims against product
sellers, including actions of negligence, strict liability and warranty, for harm caused by
a product.” Pursuant to section 52-572m(b), “product liability claim” is defined as “all
claims or actions brought for . . . property damage caused by the manufacture,
construction, design, formula, preparation, assembly, installation, testing, warnings,
instructions, marketing, packaging or labeling of any product,” and includes “all actions
based on . . . breach of warranty, express or implied . . . .” As the exclusive basis for
product liability claims under Connecticut law, the CPLA bars separate common law
causes of action in product liability cases. See Densberger v. United Techs. Corp., 297
F.3d 66, 70 (2d Cir. 2002). While a plaintiff may still assert claims based on common
law theories of liability, it must do so under “one unified count denominated as a product
liability claim.” See Walters v. Howmedica Osteonics Corp., 676 F. Supp. 2d 44, 48 (D.
Conn. 2009) (quoting Lamontagne v. E.I. Du Pont de Nemours & Co., Inc., 834 F. Supp.
576, 587 (D. Conn. 1993)).
Counts Two, Four, Six, and Eight of the Amended Complaint allege claims for
breach of implied warranty against Broan-NuTone and Jakel. Plaintiffs argue that these
claims are based in tort under Connecticut common law. See Mem. Opp. Mot. Summ.
J. at 11. The CPLA, however, bars a plaintiff from asserting separate common law
causes of action in product liability cases. See Densberger, 297 F.3d at 70; Winslow v.

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Lewis-Shepard, Inc., 212 Conn. 462, 470–71 (1989). Consequently, plaintiffs may not
assert separate causes of action based on common law breach of warranty, and
summary judgment is warranted with regard to those claims. However, the breach of
warranty theory is a proper claim under the CPLA and may be pursued. Thus, Counts
Two, Four, Six, and Eight remain as breach of warranty claims under the CPLA.
V.

CONCLUSION
For the foregoing reasons, defendants’ Motion to Preclude Proffered Expert

Testimony (Doc. No. 42) is denied. Defendants’ Motion for Summary Judgment (Doc.
No. 44) is granted in part with regard to plaintiffs’ common law breach of warranty
claims, Counts Two, Four, Six, and Eight, and denied in part with regard to plaintiffs’
CPLA claims, Counts One, Three, Five, and Seven.
SO ORDERED.
Dated at Bridgeport, Connecticut this 22nd day of February, 2012.

/s/ Janet C. Hall
Janet C. Hall
United States District Judge

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