Underhill et al v. Coleman Company

Filing 181

MEMORANDUM AND ORDER,The Court DENIES Plaintiffs first motion for summary judgment (Doc. 117 ) in its entirety; STRIKES Plaintiffs second motion for summary judgment on Colemans affirmative defenses (Doc. 119 ); and GRANTS in part and DENIES in part Colemans motion for summary judgment (Doc. 123 ). Signed by Judge J. Phil Gilbert on 2/7/2014. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
PAULA UNDERHILL, Individually and as
Special Administrator of the Estate of Galen
Underhill, and SEAN UNDERHILL,
Plaintiffs,
vs.

Case No. 12-cv-129-JPG-DGW

COLEMAN COMPANY, INC.,
Defendant.

MEMORANDUM AND ORDER
This matter comes before the Court on the following motions for summary judgment: (1)
plaintiffs Paula Underhill’s, Individually and as Special Administrator of the Estate of Galen
Underhill, and Sean Underhill’s (collectively “Plaintiffs”) motion for summary judgment (Doc.
117), to which defendant Coleman Company, Inc. (“Coleman”) responded (Doc. 133) and
Plaintiffs replied (Doc. 137); (2) Plaintiffs’ motion for summary judgment on Coleman’s
affirmative defenses (Doc. 119), to which Coleman responded (Doc. 134) and Plaintiffs replied
(Doc. 136); and (3) Coleman’s motion for summary judgment (Doc. 123), to which Plaintiffs
responded (Doc. 135). For the following reasons, the Court denies Plaintiffs’ first motion for
summary judgment (Doc. 117), strikes Plaintiffs’ second motion for summary judgment on
Coleman’s affirmative defenses (Doc. 119), and grants in part and denies in part Coleman’s
motion for summary judgment (Doc. 123).
1. Background
The parties agree on the following facts. On the night of April 9, 2010, Galen Underhill
and his son, Sean Underhill, went camping in a pop-up camper in Alhambra, Illinois. To keep

incident heater. Thereafter, the parties conducted an inspection of the incident heater and
discovered that the thermocouple was not placed in accordance with design specifications. As
such, Plaintiffs’ expert, Dr. Gary Hutter, provided a Second Supplemental Report supporting a
manufacturing defect theory. Coleman previously argued that Dr. Hutter’s opinion did not
provide support for a manufacturing defect claim in Plaintiffs’ case-in-chief. Magistrate Judge
Wilkerson, however, found Dr. Hutter’s Second Supplemental Report properly provided support
for a manufacturing defect claim and this Court affirmed that order. The parties’ now seek
summary judgment on various issues. The Court will consider each motion in turn.
2. Summary Judgment Standard
Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Spath v. Hayes Wheels
Int’l-Ind., Inc., 211 F.3d 392, 396 (7th Cir. 2000). The reviewing court must construe the
evidence in the light most favorable to the nonmoving party and draw all reasonable inferences
in favor of that party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); Chelios v.
Heavener, 520 F.3d 678, 685 (7th Cir. 2008); Spath, 211 F.3d at 396. Where the moving party
fails to meet its strict burden of proof, a court cannot enter summary judgment for the moving
party even if the opposing party fails to present relevant evidence in response to the motion.
Cooper v. Lane, 969 F.2d 368, 371 (7th Cir. 1992).
In responding to a summary judgment motion, the nonmoving party may not simply rest
upon the allegations contained in the pleadings but must present specific facts to show that a
genuine issue of material fact exists. Fed. R. Civ. P. 56(e)(2); Celotex, 477 U.S. at 322-26;
Johnson v. City of Fort Wayne, 91 F.3d 922, 931 (7th Cir. 1996). A genuine issue of material

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fact is not demonstrated by the mere existence of “some alleged factual dispute between the
parties,” Anderson, 477 U.S. at 247, or by “some metaphysical doubt as to the material facts,”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, a genuine
issue of material fact exists only if “a fair-minded jury could return a verdict for the [nonmoving
party] on the evidence presented.” Anderson, 477 U.S. at 252.
3. Plaintiffs’ Motion for Summary Judgment (Doc. 117)
In their first motion for summary judgment, Plaintiffs seek summary judgment on the
following facts: (a) that the Coleman Powermate 5045 was the sole source of the CO that caused
the death of Galen Underhill and the injury to Sean Underhill; (b) that neither Galen Underhill
nor Sean Underhill read the on-product warning label present on the Powermate 5045 heater; (c)
that neither Galen Underhill nor Sean Underhill noticed the on-product warning label present on
the Powermate 5045 heater; and (d) that neither Galen Underhill nor Sean Underhill knew that
CO was a byproduct of propane radiant heaters, including the Powermate 5045 heater.
As an initial matter, Coleman argues that this Court cannot enter summary judgment on
these specific facts put forth by Plaintiffs. Coleman cites no support for this proposition.
Federal Rule of Civil Procedure 56(g) indicates that the Court “may enter an order stating any
material fact – including an item of damages or other relief – that is not genuinely in dispute and
treating the fact as established in the case.” Accordingly, this Rule indicates that the Court is
authorized to declare that specific facts, not just entire claims or defenses, are established. The
Court will consider each fact in turn.
a. Fact 1: The Heater was the Sole Source of CO that Caused the Injuries
First, Plaintiffs seek to establish the fact “that the Coleman Powermate 5045 was the sole
source of the CO that caused the death of Galen Underhill and the injury to Sean Underhill.”

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Plaintiffs refer to the deposition of Richard Roby, Coleman’s expert, in support of their
contention that the Powermate 5045 was the sole source of CO in the tent the night of the
incident. Roby stated, “It is my opinion that the subject heater produced sufficient CO in its
modified condition to result in the death of Galen Underhill, and that was the only source of CO
in the trailer that night,” and “The same is true as the [sic] Sean’s injuries as well.”
Coleman’s brief states “Coleman does not dispute that the evidence indicates that the
incident heater was the only product that appears to have created CO that injured Plaintiffs.”
Doc. 133, p. 9. Thereafter, Coleman points to portions of Roby’s report in which Roby states:
Based on witness testimony and evidence recovered from the scene, although all
of the other combustion devices cannot be completely eliminated, the Coleman
5045 heater was the only combustion device that was known to have been
operated and was still operating when Galen and Sean were discovered. Hence,
the heater cannot be ruled out as the source of the [CO] which led to the death of
Galen Underhill and injury of Sean Underhill.
Doc. 133-6, p. 5.
Here, Plaintiffs have not produced evidence that the Powermate 5045 heater was the sole
source of CO. Roby’s deposition testimony suggests that the heater produced sufficient CO to
cause the injuries and was the only source in the camper. This leaves open the possibility that
there were sources of CO outside of the camper. Further, Roby’s report indicates there were
other sources of CO in the vicinity that could not be “completely eliminated.” Accordingly, this
Court cannot conclude that this issue is not genuinely in dispute and denies summary judgment
in that respect.
b. Fact 2: Neither Galen Underhill nor Sean Underhill Read the Powermate
5045’s On-Product Warning Label
Second, Plaintiffs seek to establish “that neither Galen Underhill nor Sean Underhill read
the on-product warning label present on the Powermate 5045 heater.” To establish this fact,

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Plaintiffs point to Sean Underhill’s deposition in which he stated that he did not look at these
warnings. Further, Plaintiffs argue Coleman conceded this matter when it answered discovery
requests for the content of the warning label as follows: “Coleman objects to this request as
harassing as the evidence reveals that neither Sean Underhill nor Galen Underhill ever read the
warnings on the heater.” Coleman argues the Court should deny summary judgment on this
matter because it is best left to the jury to evaluate Sean Underhill’s credibility.
The Court agrees that this fact is best left for the jury’s determination. The appearance
and placement of the warning label itself provides some evidence from which a jury could
conclude that either Galen Underhill or Sean Underhill read the warning. Accordingly, the Court
cannot find that this fact is not genuinely in dispute and denies Plaintiffs’ motion for summary
judgment in that respect.
c. Fact 3: Neither Galen Underhill nor Sean Underhill Noticed the On-Product
Warning Label on the Powermate 5045 Heater
Third, Plaintiffs seek summary judgment on the following fact: “neither Galen Underhill
nor Sean Underhill noticed the on-product warning label present on the Powermate 5045.”
Plaintiffs again point to Sean Underhill’s deposition testimony in which he testifies he did not
read the product warnings, and the “concession” by Coleman that neither Sean Underhill nor
Galen Underhill read the warnings. They further point to the opinion of Dr. Michael Wogalter,
an expert in human factors engineering, in which he opines that the warning would not be
noticeable to consumers. Coleman argues that the Court should deny this portion of Plaintiffs’
motion because the referenced testimony refers to whether Sean Underhill read, not noticed, the
warnings, and Coleman contends the jury should consider the warning label itself.
The Court agrees with Coleman. The referenced testimony only refers to whether Sean
Underhill read the warning, not whether he noticed it. Further, the jury should have the
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opportunity to view the label on the side of the heater, consider the expert testimony, and then
determine whether Galen Underhill and/or Sean Underhill noticed the warning. Accordingly, the
Court cannot conclude that this fact is not genuinely in dispute and denies Plaintiffs’ motion for
summary judgment in that respect.
d. Fact 4: Neither Galen Underhill nor Sean Underhill Knew that CO was a
Byproduct of Propane Radiant Heaters, Including the Powermate 5045 Heater
Finally, Plaintiffs ask this Court to grant summary judgment on the fact that neither
Galen Underhill nor Sean Underhill knew that CO was a byproduct of radiant heaters, including
the Powermate 5045 heater. In support of their argument, Plaintiffs point to Sean Underhill’s
deposition testimony in which he states that he was not aware and he did not believe Galen
Underhill was aware that the heater emitted CO. Plaintiffs further cite to depositions in which
different individuals state their belief that neither Galen Underhill nor Sean Underhill had
knowledge that the heater emitted CO.
Coleman asserts that circumstantial evidence indicates that Galen Underhill and Sean
Underhill knew that the heater emitted CO. For instance, the evidence indicates that Gary
Roberts, a family friend that camped with Galen Underhill and Sean Underhill, had concerns
about asphyxiation and would ventilate his tent. There is also evidence that Nick Rohr, Roberts’
son, expressed his concern that the operation of the heater “could kill us.”
Coleman has pointed to evidence that disputes Plaintiffs’ assertion that Galen Underhill
and Sean Underhill knew that the heater emitted CO. For instance, a jury could conclude that
Roberts’ actions in ventilating the tent put Galen Underhill and/or Sean Underhill on notice that
the heater emitted some substance that was potentially dangerous. Accordingly, the Court
cannot conclude that this fact is not genuinely in dispute and denies Plaintiffs’ motion for
summary judgment to that extent.
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For the foregoing reasons the Court denies Plaintiffs’ motion for summary judgment
(Doc. 117) in its entirety. The Court will now take up Plaintiffs’ motion for summary judgment
on Coleman’s affirmative defenses.
4. Plaintiffs’ Motion for Summary Judgment on Coleman’s Affirmative Defenses
(Doc. 119)
As initial matter, the Court notes that Plaintiffs have simultaneously filed two motions for
summary judgment. The Court has already considered the first motion for summary judgment in
this Order. Plaintiffs’ second motion seeks summary judgment on several of Coleman’s
affirmative defenses. Plaintiffs have provided no legitimate reason that necessitates two separate
motions for summary judgment. The Plaintiffs have the same counsel, and their causes of action
rely on the same facts and theories of law. The Court assumes Plaintiffs’ actions are an attempt
to avoid the page limit contained in Local Rule 7.1. See SDIL-LR 7.1 (“[n]o brief shall be
submitted which is longer than 20 double-spaced typewritten pages . . . .”) As such, the Court
strikes Plaintiffs’ motion for summary judgment on Coleman’s affirmative defenses (Doc. 119)
which was the later-filed brief. However, even if the Court were to consider the motion, the
Court would deny the motion for the following reasons.
In the second motion for summary judgment, Plaintiffs argue they are entitled to
summary judgment on ten of Coleman’s affirmative defenses as follows: (1) Fourth Affirmative
Defense – that the product at issue was abused, misused, improperly used, improperly
maintained and/or damaged, subsequent to the time it left the care, custody and control of the
manufacturer and/or retailer for which Coleman is not liable; (2) Sixth Affirmative Defense –
that the product(s) at issue were subject to abnormal and/or unintended use and/or unintended
users, which was unreasonable and/or unforeseeable by Coleman and for which Coleman is not

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liable; (3) Ninth Affirmative Defense – that if Plaintiffs sustained the injuries as alleged in
Plaintiffs’ Complaint, which is expressly denied, such injuries arose from, and were caused by,
risks, hazards, and dangers knowingly assumed by Plaintiffs; (4) Twelfth Affirmative Defense –
that the risk of any alleged injuries sustained by Plaintiffs, if in fact they were injured, was not
reasonably foreseeable to Coleman; (5) Fifteenth Affirmative Defense – that Plaintiffs have
failed to preserve in its immediate post-accident condition the Coleman heater referred to in
Plaintiffs’ Complaint, which bars Plaintiffs’ recovery against Coleman as a result of the
spoliation of evidence; (6) Sixteenth Affirmative Defense – that the injuries and damage, if any,
of which Plaintiffs complain were proximately caused or contributed to by misuse, abuse,
improper use, improper maintenance, and/or damage of the subject product, or by use of the
same in an unintended fashion by an unintended use or for an unforeseeable purpose; (7)
Nineteenth Affirmative Defense – that any danger alleged to be associated with its product(s)
was open and obvious; (8) Twenty-Third Affirmative Defense - that Plaintiffs’ claims are barred
by any and all applicable statutes of limitations; (9) Twenty-Fourth Affirmative Defense – that
Plaintiffs’ claims are barred by any and all applicable statutes of repose; and (10) Twenty-Fifth
Affirmative Defense – that Plaintiffs’ claims are barred or reduced because Plaintiffs, through
their experience, knowledge, training, education, skill or otherwise, were sophisticated users of
the products in question and knew or should have known of the dangers alleged in Plaintiffs’
Complaint.
Coleman does not contest Plaintiffs’ motion with respect to the following affirmative
defenses: (1) the Fifteenth Affirmative Defense of spoliation of evidence; (2) the Twenty-Third
Affirmative Defense that Plaintiffs’ claims are barred by the statute of limitations; and (3) the
Twenty-Fifth Affirmative Defense that Plaintiffs were sophisticated users. As such, the Court

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need not consider the uncontested portions of the motion, and will only address the arguments on
the remaining seven affirmative defenses on which Plaintiffs contend they are entitled to
judgment as a matter of law.
a. Fourth Affirmative Defense
For its Fourth Affirmative Defense, Coleman contends that the heater “was abused,
misused, improperly used, improperly maintained and/or damaged, subsequent to the time it left
the care, custody and control of the manufacturer and/or retailer for which Coleman is not liable.
Doc. 69, p. 13. Plaintiffs first assert they are entitled to summary judgment on this defense
because there is no evidence that the defect was caused by post-sale damage or wear. Plaintiffs
argue there was no “misuse” of the heater because Coleman, by its own admission, could foresee
that users of the heaters would use them in enclosed spaces.
Coleman responds and points to Dr. Roby’s expert report, wherein he observed that the
positions of both the thermocouple and the internal set screw on the incident heater had been
altered after leaving the manufacturer. Doc. 134-5, p. 20. The report explained that these
alterations “allowed the incident heater to operate at a substantially reduced output for an
indefinite period of time instead of shutting the burner off, thereby defeating this important
safety system.” Id. Dr. Roby concluded that “[t]hese alterations were found to be the cause of
the significant reduction in flow of propane to the burner resulting in the generation of lethal
levels of CO.” Id.
The Court notes that “[u]nder Illinois law, misuse is not an affirmative defense; rather,
absence of misuse is part of a plaintiff’s proof of an unreasonably dangerous condition or of
proximate cause.” Schwartz v. American Honda Motor Co., 710 F.2d 378 (7th Cir. 1983) (citing
Ill. State Trust Co. v. Walker Manufacturing Co., 392 N.E.2d 70, 73 (Ill. 1979)). Misuse occurs

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when an item is “used ‘for a purpose neither intended nor foreseeable (objectively reasonable)’
by its manufacturer or distributor.” Walker v. Trico Mfg. Co., 487 F.2d 595, 598 (7th Cir. 1973).
Here, Coleman has presented evidence of misuse. Based on Dr. Roby’s report, a jury
could reasonably conclude that Coleman could not foresee that a user would make the suggested
alterations causing the release of lethal amounts of CO. Accordingly, the issue of misuse should
be presented to the jury, and the Court would deny Plaintiffs’ motion for summary judgment on
the Fourth Affirmative Defense.
b. Sixth Affirmative Defense
In its Sixth Affirmative Defense, Coleman contends that the heater was “subject to
abnormal and/or unintended use and/or unintended users, which was unreasonable and/or
unforeseeable by Coleman and for which Coleman is not liable.” Doc. 69, p. 14. Plaintiffs first
contend that the heater was not subject to abnormal or unintended use because the use of the
heater inside an enclosure was foreseeable to Coleman. Plaintiffs also argue that “[t]o claim that
two men who operated a heater during a hunting and recreational activity was an unintended or
unforeseeable use is simply not arguable.” Doc. 120, p. 7.
Coleman asserts it will not argue at trial that use in enclosed spaces is unforeseeable or
that Galen Underhill and Sean Underhill were unforeseeable users. However, Coleman argues
that the “abnormal and/or unintended use” issue should not be dismissed for the same reasons
that the “misuse” issue should not be dismissed.
The Court agrees with Coleman. The alterations of the thermocouple and set screw are
evidence from which a jury could conclude the heater was subject to “abnormal and/or
unintended use.” Further, while it may be foreseeable that consumers would use the heater in
enclosed spaces and thus not constitute “misuse,” that action is clearly relevant to a

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determination of compensatory damages. See Malen v. MTD Products, Inc., 628 F.3d 296, 313
(7th Cir. 2010) (In Illinois “[c]omparative fault applies so that former defenses such as
contributory negligence, assumption of risk, and misuse of the product are merely damagereducing factors.”). For the foregoing reasons, the Court would deny summary judgment to the
extent Plaintiffs seek to bar the issue of “abnormal and/or unintended use” from the jury’s
consideration.
c. Ninth Affirmative Defense
In its Ninth Affirmative Defense, Coleman contends that Galen Underhill and Sean
Underhill assumed the risk of any resulting injuries. Plaintiffs argue this affirmative defense
must be dismissed because Coleman has failed to produce evidence that either Galen Underhill
or Sean Underhill knew that propane heaters produced CO. They point to Sean Underhill’s
deposition in which he states he did not know CO was a byproduct of the heater, and they point
to several other depositions in which individuals speculate that Galen Underhill did not know
that propane heaters produced CO.
Coleman urges the Court to deny this portion of the motion. It points to the warning label
on the heater. Further, the deposition of Gary Roberts indicates that he had concerns about
operating the heater in the enclosed space when he was camping with the Underhills and would
ventilate the area as a result of those concerns. Nick Rohr camped with the Underhills and
“freaked out” after observing the heater and stated “hey, that could kill us.”
Under Illinois law, assumption of risk is an affirmative defense of which the defendant
bears the burden. Campbell v. Nordco Prods., 629 F.2d 1258, 1262 (7th Cir. 1980). The
defendant must show that “the user of a product voluntarily and deliberately exposes himself to a
danger that is either known to him or is so open and obvious that it must have been

12 

comprehended.” Id. This defense employs a subjective standard and the defendant must show
that the plaintiff “knowingly, voluntarily, and deliberately encountered the hazard.” Id.
The Court agrees that there is sufficient evidence from which a jury could reasonably
conclude that Galen Underhill and Sean Underhill assumed the risk. Plaintiff mistakenly
suggests that Galen Underhill and Sean Underhill had to have knowledge that the heater emitted
CO. While they may not have known that the heater specifically emitted CO, there is evidence
from which a jury could reasonably conclude that they knew the heater was hazardous. Such
evidence includes the warning label itself and the deposition of Gary Roberts. As such, the
Court would deny Plaintiffs’ motion for summary judgment on Coleman’s Ninth Affirmative
Defense.
d. Twelfth Affirmative Defense
In its Twelfth Affirmative Defense, Coleman contends that any injury to Galen Underhill
and Sean Underhill was not reasonably foreseeable. Plaintiffs argue this defense must be
dismissed because Coleman knew that its propane heaters released CO and had harmed others.
Coleman argues that this portion of the motion must be denied because Plaintiffs narrowly focus
on the release of CO and it was not foreseeable that a consumer would alter the thermocouple
and set screw causing the release of lethal amounts of CO. In their reply, Plaintiffs do not
address Coleman’s argument concerning the foreseeability of altering the thermocouple and set
screw, but continue to focus on the foreseeability of the heater’s release of CO.
The Court agrees with Coleman. Coleman has evidence that the aforementioned
alterations occurred after the heater left Coleman’s control and presented sufficient evidence
from which a reasonable jury could conclude that it was not foreseeable that a consumer would
make these alterations that resulted in the release of lethal amounts of CO. Accordingly, the

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Court would deny Plaintiffs’ motion for summary judgment on Coleman’s Twelfth Affirmative
Defense.
e. Sixteenth Affirmative Defense
In its Sixteenth Affirmative Defense, Coleman asserts that Galen Underhill’s and Sean
Underhill’s injuries “were proximately caused or contributed to by misuse, abuse, improper use,
improper maintenance, and/or damage of the subject product, or by the same in an unintended
fashion by an unintended use or for an unforeseeable purpose.” Doc. 69, p. 15. Plaintiffs argue
this defense should be dismissed because it “restates and combines in whole their fourth and
sixth affirmative defenses” on which they argue they are also entitled to judgment as a matter of
law. Coleman agrees that aspects of this defense are repetitive, but points out that this defense
puts forth their comparative negligence theory.
Illinois law recognizes the defense of comparative negligence, which requires the
reduction of plaintiffs’ damages “in accordance with the percentage of fault attributable to him.”
Walsh v. Emergency One, Inc., 26 F.3d 1417, 1421 (7th Cir. 1994). Here, Coleman has
introduced evidence that the thermocouple and set screw in the heater were altered after the
heater left Coleman’s possession, which led to the release of lethal amounts of CO. Coleman has
also produced evidence showing the warning label that directed the consumer to use the heater
only in well-ventilated areas. From this evidence a reasonable jury could conclude that Galen
Underhill and Sean Underhill were comparatively negligence and reduce Plaintiffs’ damages
accordingly. Thus, the Court would deny Plaintiffs’ motion for summary judgment on
Coleman’s Sixteenth Affirmative Defense.

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f. Nineteenth Affirmative Defense
In its Nineteenth Affirmative Defense, Coleman contends “that any danger alleged to be
associated with its products(s) was open and obvious.” Plaintiffs argue they are entitled to
judgment as a matter of law on this defense because Coleman “cannot meet its burden to show
that the risk of CO is an open and obvious danger.”
Under Illinois law, “a manufacturer generally has no duty to warn of open and obvious
dangers.” Lederman v. Pacific Indus., Inc., 119 F.3d 551, 553 (7th Cir. 1997) (citing Klen v.
Asahi Pool, Inc., 643 N.E.2d 1360, 1366 (Ill. 1994)); Blue v. Environmental Engineering, Inc.,
828 N.E.2d 1128, 1144 (Ill. 2005). Determining whether a danger is open and obvious requires
an objective inquiry – whether a reasonable adult would have concluded the product presented a
danger. Lederman, 119 F.3d at 554. Whether a danger is open and obvious is also relevant in
apportioning comparative fault. Courts have found open and obvious dangers include fire,
height, and bodies of water. Lederman, 119 F.3d at 553-54.
Here, the release of CO, an invisible and odorless gas, is unlike the clearly obvious
dangers posed by fires, heights, or bodies of water. Coleman, however, has introduced evidence
that a warning label on the heater instructed consumers to use the heater only in well-ventilated
areas and to never alter the heater. From these warnings, a jury could find that the danger posed
by the heater was open and obvious. See Haddix v. Playtex Family Prods. Corp., 138 F.3d 681
(7th Cir. 1998) (the court concluded that the dangers presented by the risk of toxic shock
syndrome through the use of tampons was obvious because of the warnings placed on the box
and in the instructions). Accordingly, the Court would deny Plaintiffs’ motion for summary
judgment on Coleman’s Nineteenth Affirmative Defense.

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g. Twenty-Fourth Affirmative Defense
In its Twenty-Fourth Affirmative Defense, Coleman argues that Plaintiffs’ claims are
barred by the statute of repose. Plaintiffs argue that Coleman does not have sufficient evidence
to support this affirmative defense. Coleman indicates it does not know the exact date of first
sale; however, Coleman provides evidence that the heater was manufactured in 1995. Further,
sales numbers would allow a reasonable jury to find that the heater was sold before 1997 and the
case is thus barred by the statute of repose.
The Illinois statute of repose in a products liability case provides that
no product liability action based on any theory or doctrine shall be commenced
except within the applicable limitations period and, in any event, within 12 years
from the date of first sale, lease or delivery of possession by a seller or 10 years
from the date of first sale, lease or delivery of possession by its initial user,
consumer, or other non-seller, whichever period expires earlier, of any product
unit that is claimed to have injured or damaged the plaintiff . . . .
735 ILCS 5/13-213(b).
Coleman has pointed to evidence that indicates the incident heater was manufactured in
1995, fifteen years prior to the incident. The affidavit of Stuart L. Meether, Coleman’s Vice
President of Global Research and Production Development indicates that Coleman had to
increase production levels to meet the demand for its Powermate heaters. Doc. 134-4. From
Meether’s affidavit and the attached sales figures, a jury could reasonably conclude that the
incident heater was sold at least by 1997. Accordingly, the Court would deny Plaintiffs’ motion
for summary judgment on Coleman’s Twenty-Fourth Affirmative Defense.
5. Coleman’s Motion for Summary Judgment (Doc. 123)
Next, the Court will consider Coleman’s motion for summary judgment. Coleman argues
it is entitled to summary judgment on the following issues: (1) the design defect claims based on
the absence of an ODS and thermocouple placement; (2) the manufacturing defect claims; (3) the
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post-sale duty to warn claims; (4) the warnings claims; and (5) punitive damages. The Court will
consider each in turn.
a. Design Defect Claims
Plaintiffs concede they have abandoned their design defect claim based on the absence of
an ODS. Accordingly, the Court grants summary judgment in favor of Coleman to that extent.
Plaintiffs, however, argue that they have not abandoned their design defect claim with respect to
thermocouple placement. As such, the Court will address whether Coleman is entitled to
judgment as a matter of law on the design defect claim based on improper thermocouple
placement.
Without testing the incident heater, Plaintiffs’ defective design theory alleged the heater
was defective because it lacked an ODS and the thermocouple was improperly placed as
evidenced by the design specifications. Based on their prior experience with Coleman heater
litigation and without testing the incident heater, Plaintiffs’ experts opined that the accident
occurred from “tank valve control.” Thereafter, the parties tested the incident heater and
discovered that the thermocouple was not in the location indicated in the design specifications.
Coleman now argues that Plaintiffs’ theory changed to a manufacturing defect resulting from
improper placement of the thermocouple and set screw in the regulator at the time of assembly of
the heater. As such, Coleman contends Plaintiffs have abandoned their design defect claim
based on thermocouple placement.
Plaintiffs responded contending that they have not abandoned their claim that the
thermocouple placement constituted a design defect. Specifically, Plaintiffs point to Dr. Gary M.
Hutter’s Second Supplemental Report, created after testing of the incident heater (Doc. 123-12).
Dr. Hutter noted that testing of the incident heater revealed that the thermocouple on the incident

17 

heater was not placed in accordance with the manufacturer’s specifications. Dr. Hutter opined
that “the location of the thermocouple against the burner bowl was the result of improper
installation at the time of assembly of the heater.” Id. That improper location caused the
thermocouple to fail to detect the reduced thermal output that led to Plaintiffs’ injuries. Finally,
Dr. Hutter contends that
[h]ad Coleman designed and manufactured the [heater] with the thermocouple
placed at an appropriate location and distance from burner assembly, the
thermocouple would not have allowed the heater to operate at a reduced thermal
condition and this accident would not have occurred.
Id.
It appears that Plaintiffs are attempting to maintain both (1) a manufacturing defect claim
wherein they argue that the thermocouple was improperly placed at the time of manufacture, and
(2) a product defect claim wherein they argue that the thermocouple placement was defectively
designed. These arguments are inconsistent. Plaintiff cannot maintain a design defect claim at
the same time it argues that the thermocouple was not placed pursuant to design specifications.
Any thermocouple design defect pursuant to Coleman’s design specifications could not have
caused the injury at hand because the thermocouple was not in the place specified in the design
specifications. Accordingly, the Court grants Coleman’s motion for summary judgment on
Plaintiffs’ design defect claim relative to thermocouple placement.
b. Manufacturing Defect Claims
Next, Coleman argues that it is entitled to summary judgment on Plaintiffs’
manufacturing defect claims. Specifically, Coleman argues that Plaintiffs (1) only have rebuttal
evidence regarding the manufacturing defect claim, and (2) cannot establish the manufacturing
defect existed at the time the heater left Coleman’s control.

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In a previous order (Doc. 129), this Court already determined that Dr. Hutter properly
presented his opinion regarding the manufacturing defect in his Second Supplemental Report.
Accordingly, Plaintiffs may use Dr. Hutter’s manufacturing defect opinion in their case in chief.
Thus, for the reasons already set forth by this Court (Doc. 129), the Court denies Coleman’s
motion for summary judgment to the extent Coleman argues that Plaintiffs may not argue a
manufacturing defect claim in their case in chief.
Next, Coleman argues that Plaintiffs cannot establish that the manufacturing defect
existed at the time the heater left Coleman’s control. Under Illinois law, to prevail on a strict
products liability claim a plaintiff must establish that “(1) an injury resulted from the condition
of the product; (2) the condition of the product was unreasonably dangerous; and (3) the
condition existed at the time that the product left the manufacturer’s control” Haddix v. Playtex
Family Prods. Corp., 138 F.3d 681, 683 (7th Cir. 1998) (citing Hunt v. Blasius, 384 N.E.2d 368,
372 (Ill. 1979)).
Coleman contends that the heater was altered after it left Coleman’s control. For
instance, Coleman presents evidence suggesting that the heater worked properly until the night of
the accident. Moreover, Coleman has expert testimony that Coleman’s quality assurance
guidelines would not allow for a heater to leave the facility in a condition in which the incident
heater was discovered. Plaintiffs have contrary evidence. For instance, Dr. Roby has opined that
the evidence does not suggest post-sale alteration. Dr. Hutter further opined that there was the
absence of evidence indicating an alteration. Thus, a genuine issue of material of fact is present
that precludes summary judgment, and the Court denies Coleman’s motion in that respect.

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c. Post-Sale Duty to Warn Claim
Next, Coleman argues that it is entitled to judgment as a matter of law on Plaintiff’s postsale duty-to-warn theory. Specifically, Coleman contends that Plaintiffs are only maintaining
two manufacturing defect claims arising from the placement of the thermocouple and the
regulator set screw. Because these defects were not discovered by any party until the testing on
January 28 and 29, 2013, Coleman had no duty to warn under Illinois law. Plaintiffs argue their
failure-to-warn claim is appropriate, and that Coleman mischaracterizes Plaintiffs’ argument.
Specifically, Plaintiffs contend Coleman focuses on the alleged manufacturing defect discovered
during testing rather than Coleman’s heaters’ production of CO.
In order to prevail on a strict liability claim in Illinois, the plaintiff must establish that the
injury “resulted from a condition of the product, that the condition was unreasonably dangerous,
and that it existed at the time the product left the manufacturer’s control.” Mikolajczyk v. Ford
Motor Co., 901 N.E.2d 329, 335 (Ill. 2009). Plaintiffs may establish that a product was
unreasonably dangerous in one of two ways: “(1) because of a design or manufacturing defect, or
(2) because of a failure to warn consumers of a danger posed by the product of which the average
consumer would not be already aware.” Haddix, 138 F.3d at 683.
Here, Plaintiffs clearly base their failure-to-warn claim on the dangerous condition
resulting from Coleman’s heater’s CO production, not the alleged manufacturing defects
discovered during testing. Plaintiffs have provided evidence that many consumers are not aware
that Coleman heaters produce potentially lethal CO, and that Coleman’s warnings were
inadequate. Accordingly, the Court denies Coleman’s motion for summary judgment to that
extent.

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d. Warnings Claims
Next, Coleman argues that it is entitled to summary judgment on Plaintiffs’ warnings
claims. In their Fourth Amended Complaint, Plaintiffs contend that Coleman failed to warn
consumers that its heater “produced deadly levels [of CO] when operated with restricted propane
flow from the propane tank.” Coleman contends that Plaintiffs have abandoned any warnings
claims because Plaintiffs are arguing that neither Galen Underhill nor Sean Underhill read the
warnings. In their response, Plaintiffs agree that they cannot pursue a claim based on the content
of the warnings. Plaintiffs clarify that their claim is “based on the prominence/saliency of the
warning.” Accordingly, the Court grants Coleman’s motion for summary judgment to the extent
it relates to any claim based on the content of the warning label.
e. Punitive Damages
Finally, Coleman argues that Plaintiffs’ prayer for punitive damages should be stricken
because “there is absolutely no evidence of any intentional, deliberate, or outrageous conduct by
Coleman that would warrant a jury’s consideration of punitive damages.” Coleman makes this
argument with respect to Plaintiffs’ manufacturing defect and warnings claims.
Under Illinois law, punitive damages “may be awarded when torts are committed with
fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or
with such gross negligence as to indicate a wanton disregard of the rights of others.” Kelsay v.
Motorola, Inc., 384 N.E.2d 353, 359 (Ill. 1978). While the amount of punitive damages is
ultimately determined by the jury, “the preliminary question of whether the facts of a particular
case justify the imposition of punitive damages is properly one of law.” Id. Punitive damages
are not favored, and “the courts must take caution to see that punitive damages are not
improperly or unwisely awarded.” Id.

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Plaintiffs’ complaint alleged that
[i]n light of [Coleman]’s knowledge of the hazards and risks of the use of its
heaters and with the further knowledge that numerous people had died as a result
of [CO] emitted from [Coleman]’s propane radiant heaters that had operated
within houses, campers, tents, vehicles and/or other unventilated or enclosed
areas, Defendant’s conduct manifests a knowing and reckless indifference toward,
and a disregard of, the rights of others . . . entitling [Plaintiffs] to an award of
punitive damages.
Doc. 67. Plaintiffs then produced evidence indicating that Coleman had knowledge of deaths
resulting from the CO emitted from its heaters. Plaintiffs have also produced evidence that
Coleman failed to change its warnings despite a suggestion from the Consumer Product Safety
Commission, among others, that its warning was inadequate to warn consumers of the dangers of
CO. See Doc. 135-2. From this evidence, a jury could reasonably conclude that Coleman acted
“willfully, or with such gross negligence as to indicate a wanton disregard of the rights of
others.” Accordingly, the Court denies Coleman’s motion for summary judgment to the extent it
seeks to strike Plaintiffs’ request for punitive damages.
6. Conclusion
For the foregoing reasons, the Court
a. DENIES Plaintiffs’ first motion for summary judgment (Doc. 117) in its
entirety;
b. STRIKES Plaintiffs’ second motion for summary judgment on Coleman’s
affirmative defenses (Doc. 119); and
c. GRANTS in part and DENIES in part Coleman’s motion for summary
judgment (Doc. 123). Specifically, the Court grants Coleman’s motion to the
extent the Court grants summary judgment on Plaintiffs’ (1) design defect
claims based on the absence of an ODS and thermocouple placement, and (2)
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any claim based on the content of the warning label. The Court denies the
remainder of Coleman’s motion for summary judgment.
IT IS SO ORDERED.
DATED: February 7, 2014
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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