Cincinnati Insurance Company v. Lennox Industries Inc
Filing
45
OPINION AND ORDER: GRANTING IN PART AND DENYING PART 30 MOTION for Summary Judgment by Defendant Lennox Industries Inc. GRANTING as to Plaintiff's claims for design defect and failure to adequately warn, and the Clerk is ORDERED to DISMISS these claims WITH PREJUDICE and DENYING as to Count II which REMAINS PENDING. DENYING 39 RULE 56 MOTION to Strike by Defendant Lennox Industries Inc and 40 MOTION for Hearing re 30 MOTION for Summary Judgment and Request for Oral Argument by Defendant Lennox Industries Inc. Signed by Judge Rudy Lozano on 2/9/2016. (lhc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
THE CINCINNATI
INSURANCE COMPANY
a/s/o JASON and
MICHELLE HOWARD,
)
)
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
vs.
LENNOX INDUSTRIES,
INC.,
Defendant.
CAUSE NO. 3:14-CV-1731
OPINION AND ORDER
This matter is before the Court on the: (1) Defendant’s Motion
for Summary Judgment, filed by Defendant, Lennox Industries Inc.,
on August 6, 2015 (DE #30); (2) Defendant’s Motion to Strike, filed
by Defendant, Lennox Industries Inc., on October 6, 2015 (DE #39);
and (3) Defendant’s Request for Oral Argument on Defendant’s Motion
for Summary Judgment, filed by Defendant, Lennox Industries Inc.,
on October 8, 2015 (DE #40).
For the reasons set forth below, the
Motion for Summary Judgment (DE #30) is GRANTED IN PART AND DENIED
IN PART.
It is GRANTED as to Plaintiff’s claims for design defect
and failure to adequately warn, and the Clerk is ORDERED to DISMISS
these claims WITH PREJUDICE.
It is DENIED as to Count II (strict
products liability) which REMAINS PENDING.
(DE #39) is DENIED.
The Motion to Strike
The Motion for Oral Argument (DE #40) is also
DENIED.
BACKGROUND
This case arises out of a fire that burned the home of
Plaintiff’s The Cincinnati Insurance Company (“CIC”) insureds,
Jason and Michelle Howard (“the Howards”), on June 22, 2012.
The
Howard’s home was insured by CIC, which paid approximately $408,000
as a result of the fire.
CIC has brought this suit against
Defendant, Lennox Industries, Inc. (“Lennox”), alleging counts of
negligence, strict liability, and warranty based upon an air
condensing
unit
(“ACU”)
designed,
manufactured,
sold,
and
distributed by Lennox, that was mounted just outside and adjacent
to the Howards’ home.
CIC argues that electrical arcing between
the ACU’s compressor and its power source ignited organic material
inside the ACU and ultimately caused the fire. CIC claims that the
ACU was manufactured, designed, and/or labeled in an unsafe,
defective, and inherently dangerous condition.
Lennox denies the
allegations.
Lennox filed the instant motion for summary judgment on August
6, 2015 (DE #30).
CIC filed a brief in opposition on September 22,
2015 (DE #35). Lennox also filed a motion to strike, requesting an
order striking Larry Cooper’s Investigative Report (DE #35-2) and
Brad
O’Neal’s
designated
Engineering
evidence
in
Report
opposition
2
(DE
to
#35-3)
the
from
motion
Plaintiff’s
for
summary
judgment. Lennox then filed a reply brief in support of its motion
for summary judgment and motion to strike.
(DE #37).1
Undisputed Facts
A fire occurred on June 22, 2012, at the Howards’ house
located at 57711 El Dorado Drive, Goshen, Indiana.
The house was
built in 2007, and equipped with a Lennox 13ACD air condensing unit
on its exterior.
46.)
(Compl. ¶¶ 3, 5; Jason Howard Dep. pp. 11, 45-
The ACU was installed behind the Howards’ home, adjacent to
their patio, in an area surrounded by mulch and ornamental grasses.
(Howard Dep., pp. 47.)
Mr.
Howard testified that other than
spraying the outside of the ACU with a hose, neither he nor anyone
else serviced the ACU.
(Id., pp. 44-45.)
Before leaving the house on June 22, 2-12, the Howards set the
thermostat in the house to 72 degrees Fahrenheit, and left their
ACU running.
Neither Jason Howard nor Michelle Howard was home at
the time of the fire.
At
approximately
3:11
p.m.,
the
Jefferson
Township
Fire
Department was alerted to the fire. (Larry D. Cooper, Jr. Dep., p.
78.)
They arrived at the scene at 3:19 p.m., but the home was
still heavily damaged.
1
While Lennox did follow the rule and file a separate motion
to strike, the Court notes that it would have preferred for
Lennox to file a memorandum in support of the motion to strike
instead of incorporating those arguments into its reply brief in
support of the motion for summary judgment.
3
CIC designated Larry Cooper, an Investigator with Unified
Investigations & Sciences, Inc., as its Federal Rule of Civil
Procedure 26(a)(2)(B) witness to testify about the origin and cause
of
the
subject
fire.
Cooper
originated inside the ACU.
opined
that
the
subject
fire
(Ex. C to Lennox’s Designation of
Evidence in Support of Mot. For Summ. J., Larry D. Cooper, Jr. Dep.
Defs.’ Ex. 2 to Cooper Dep., p. 100.)
Cooper’s report states:
The fire originated at the condensing unit on the
west exterior of the home.
An electrical
malfunction (see engineering report) ignited nearby
combustibles including plant life and leaves in the
area and inside of the air conditioning unit. The
fire spread to nearby combustibles including dried
grass and mulch before spreading to the west
exposure of the home. The flames progressed upward
along the west wall before propagating into the
home through the overhang. The fire continued to
burn in the attic area resulting in partial
collapse of the roof.
(DE #35-2, Cooper’s Report, p. 2.)
Cooper also believes the fire
was caused by “a high-resistant heating or arcing” which ignited
“fuels” inside the ACU and then spread to nearby combustibles,
including mulch and ornamentals, before spreading to the Howards’
home.
(Id., pp. 100, 105.)
Cooper does not have any opinion
regarding how the “high-resistant heating or arcing” occurred or
whether
the
aforementioned
electrical
event
resulted
from
an
unsafe, defective, or inherently dangerous condition associated
with the ACU.
(Id., pp. 97-100.)
Instead, he defers to the
opinions and conclusion held by Brad O’Neal, CIC’s Federal Rule of
Civil Procedure 26(a)(2)(B) witness on the topic of electrical
4
engineering.
CIC designated Mr. Brad O’Neal, a Senior Forensic Engineer who
is also employed by Unified, as its Federal Rule of Civil Procedure
26(a)(2)(B) witness on the topic of electrical engineering.
(Ex.
D to Lennox’s Designation of Evidence in Support of Mot. For Summ.
J.; Brad O’Neal Dep. Def.’s Ex. A to O’Neal Dep., p. 1.)
O’Neal
and his colleagues at Unified examined and tested the ACU and its
component parts on two occasions - September 13, 2012 and January
15, 2015. (Ex. D to Lennox’s Designation of Evidence in Support of
Mot. For Summ. J., pp. 49, 51.) Based upon the exams and testing,
O’Neal opines that the fire originated inside the ACU at the
compressor connection.
(Id., pp. 52, 58, 72-74.)
Specifically,
O’Neal believes the electrical arcing between the ACU’s compressor
and its power was the fire’s ignition source:
Therefore it is my opinion that the ignition
source, based on electrical arc mapping, was not on
the exterior of the condensing unit. Arc mapping
placed the fire originating inside the condensing
unit, which was also consistent with the fire
investigator’s area of origin. Further identifying
the ignition source at the compressor power
connections, which was the farthest failure
downstream from an arc severed conductor provide
the origin and ignition source for the fire.
(DE #35-3, O’Neal Report, pp. 7-8.)
However, O’Neal specifically testified during his deposition
that he is not offering any opinion that the alleged electrical
arcing
resulted
from
a
defective
characteristic of the ACU:
5
or
unreasonably
dangerous
Q:
You’re not offering any opinions in this case with regard
to any manufacturing defect in the Lennox air
conditioner, correct?
A:
That’s correct, no manufacturing defect.
Q:
You’re not offering any opinions with regards to design
defect, are you?
A:
No, I’m not.
Q:
You’re not offering any opinions in the area of warnings
defect, are you?
A:
No, I’m not.
Q:
Okay. Those are the big three in the world of product
liability. Are you aware of any others from your legal
training?
A:
No, I’m not.
Q:
Okay. So when I use the word defect, I’m using it in the
context that we as folks that go to law school learn
about in law school, and I trust you did, too, that
defect would include any one of those three components.
*
*
*
*
*
Q:
Do you have any different understanding of the word
defect in the context of a products liability action than
those three possible avenues?
A:
I’m not aware of any, no.
Q:
Okay. And you’re not offering opinions on any one of
them in this case?
A:
That is correct.
Q:
Okay.
Nor are you aware of anyone else on behalf of
[CIC] who is offering such opinions, correct?
A:
That’s correct.
6
*
*
*
*
*
Q:
Yeah.
So you don’t know what caused this alleged arc?
A:
I don’t know what caused the arcing, no. There’s – there
could be, like I said, all different kinds of
possibilities.
Q:
But we do know that you’re not testifying that that arc
was due to any defect in the equipment, correct?
A:
That’s correct.
(Brad O’Neal Dep., pp. 28-29; 140.)
Finally, Plaintiff’s experts investigated other potential
causes of the fire.
Cooper states that “no evidence of carelessly
discarded smoking material was found in this area.”
(DE #35-2, p.
4.) O’Neil opined that “[n]o other competent ignition sources were
identified which would cause the damage observed; therefore, the
arcing at the compressor was the fire’s ignition source.” (DE #353, p. 7.)
DISCUSSION
Summary judgment must be granted when “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).
A genuine
dispute of material fact exists when “the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
every
dispute
between
the
parties
makes
summary
Not
judgment
inappropriate; “[o]nly disputes over facts that might affect the
7
outcome of the suit under the governing law will properly preclude
the entry of summary judgment.”
Id.
In determining whether
summary judgment is appropriate, the deciding court must construe
all facts in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party’s favor. Ogden v.
Atterholt, 606 F.3d 355, 358 (7th Cir. 2010).
“However, our favor
toward the nonmoving party does not extend to drawing inferences
that are supported by only speculation or conjecture.”
Fitzgerald
v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.
C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).
A party opposing a properly supported summary judgment motion
may not rely on allegations or denials in her own pleading, but
rather must “marshal and present the court with the evidence she
contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,
621 F.3d 651, 654 (7th Cir. 2010).
If the nonmoving party fails to
establish the existence of an essential element on which he or she
bears the burden of proof at trial, summary judgment is proper.
Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).
Motion For Oral Argument
At the outset, the Court will address Lennox’s Motion for Oral
Argument as to the instant Motion for Summary Judgment.
(DE #40.)
Pursuant to Local Rule 7-5., the Court may “grant or deny a request
for oral argument or an evidentiary hearing in its discretion.”
8
N.D. Ind. L.R. 7-5.(c)(1).
Here, the parties’ memoranda have
sufficiently apprised the Court of the issues at hand, and the
Court
does
not
believe
that
oral
argument
is
necessary.
Therefore, the Court denies Lennox’s Motion for Oral Argument (DE
#40), and turns to the merits of the Defendant’s Motion for Summary
Judgment.
Defendant’s Motion to Strike
Defendant,
Lennox,
moves
to
strike
Larry
Cooper’s
Investigative Report (DE #35-2) and Brad O’Neal’s Engineering
Report
(DE
#35-3)
from
Plaintiff’s
designated
opposition to Lennox’s motion for summary judgment.
argument
in
support
of
the
motion
to
strike
is
evidence
in
Because the
included
in
Defendant’s reply memorandum in support of its motion for summary
judgment (DE #37, pp. 4-8), it is a little confusing as to what
bases Defendant believes the reports should be stricken. At first,
it seems Defendant contends O’Neal’s theory is “unsubstantiated”
(id., p. 6) and maybe improper under Daubert (although that case
name is never used by Defendant). But then, Lennox argues that the
reports are inadmissible under Rule 56(c)(2) and 56(c)(4), arguing
they are inadmissible hearsay because they are not sworn to or
subscribed under penalty of perjury.
Defendants
cite
Howmedica
(DE #44.)
Osteonics
Corp.
v.
Tranquil
Prospects, Ltd., 482 F.Supp.2d 1045, 1057 (N.D. Ind. 2007), for the
9
proposition that “an unsworn and unverified expert report is not
Rule 56 evidence that may be relied upon to overcome a motion for
summary judgment.”
(DE #44, p. 1.)
While the Court made that
observation in Howmedica, it went on to rule that “[h]owever,
rather than deciding this case on hypertechnical grounds, the Court
will decide the case on its merits.”
482 F.Supp.2d at 1057.
Motions to strike are heavily disfavored, and usually only granted
in circumstances where the contested evidence causes prejudice to
the moving party.
Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695
(N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303,
2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007).
This Court can
consider the expert’s reports, without the need to employ a motion
to strike. Therefore, the motion to strike is denied to the extent
it challenges the admissibility of the expert reports.
To the extent the motion to strike challenges the sufficiency
of the expert opinions expressed in the reports, Federal Rule of
Evidence
702,
which
governs
expert
testimony,
provides
following:
A witness who is qualified as an expert by
knowledge,
skill,
experience,
training,
or
education may testify in the form of an opinion or
otherwise if:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact
to understand the evidence or to determine a fact
in issue;
(b) the testimony is based on sufficient facts or
data;
10
the
(c) the testimony is a
principles and methods; and
product
of
reliable
(d) the expert has reliably applied the principles
and methods to the facts of the case.
F.R.E. 702.
In addition, in Daubert v. Merrell Dow Pharms., Inc.,
the Supreme Court fashioned a two-prong test of admissibility for
evidence based on the “scientific knowledge” mentioned in Rule 702.
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). To
be admissible, evidence must be both relevant and reliable. Id. at
589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152
(1999) (noting the objective of court’s gatekeeping requirement is
to ensure reliability and relevancy of expert testimony).
Under the reliability prong, scientific evidence must be
reliable in the sense that the expert’s testimony must present
genuine scientific knowledge.
Daubert, 509 U.S. at 592-93; Deimer
v. Cincinnati Sub-Zero Prods. Inc., 58 F.3d 341, 344 (7th Cir.
1995).
the
Generally, the expert witness must employ in the courtroom
same
level
of
intellectual
rigor
that
practice of an expert in the witness’s field.
152.
characterizes
the
Kumho, 526 U.S. at
Specifically, a court may, but is not required to, consider
a nonexclusive list of four factors in assessing reliability: (1)
whether the expert’s theories and techniques can be verified by the
scientific method through testing; (2) whether the theories and
techniques have been subjected to peer review and publication; (3)
whether the theories and techniques have been evaluated for their
11
potential
rate
of
error;
and
(4)
whether
the
theories
and
techniques have been generally accepted by the relevant scientific
community.
Daubert, 509 U.S. at 593-94.
Under the relevance prong, the testimony must assist the trier
of fact to understand the evidence in the sense that it is relevant
to or “fits” the facts of the case.
Daubert, 509 U.S. at 591;
Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000).
In
other words, the testimony must be such that the jury can apply it
in a meaningful way to the facts at hand.
essentially
represents
an
inquiry
This “fit” analysis
similar
to
if
not
indistinguishable from the basic evidentiary inquiries into whether
evidence is relevant and, if so, whether its probative value is
nonetheless substantially outweighed by, among others, the danger
of unfair prejudice and jury confusion.
See Daubert, 509 U.S. at
595; Ayers v. Robinson, 887 F. Supp. 1049, 1058-59 (N.D. Ill.
1995).
In this case, the Court finds the expert reports of Cooper
(the Origin and Cause Investigator) and O’Neil (the Electrical
Engineer) are both reliable and relevant.
Both experts used the
scientific method and relied upon NFPA 921 to conduct their
investigations and reach their conclusions.
Cooper looks to
identify the origin of a fire, then attempts to “identify competent
sources of ignition within that origin.” (Cooper Dep., p. 21.) In
reaching
the
conclusion
that
the
12
fire
occurred
in
the
ACU
manufactured by Lennox as a result of an electrical malfunction (DE
#35-2, p. 8), Cooper examined the scene twice, identified and
interviewed potential witnesses, researched the ACU, obtained and
read the fire report and researched the weather on the day of the
fire.
(Id., pp. 3, 7.)
As such, he collected facts and data in
accordance with National Fire Protection Association Publication
(“NFPA”)
921,
which
is
a
recognized
guide
for
investigators in the fire investigation process.
use
by
fire
See State Farm
Fire & Cas. Co. v. Electrolux Home Products, Inc., 2013 WL 3013531,
at *6 (N.D. June 17, 2013) (“courts throughout the country have
held the NFPA 921 methodology reliable under Fed. R. Evid. 702").
Similarly, O’Neil also utilized NFPA 921 in conducting his
investigation.
O’Neal attended the second examination of the ACU,
and identified arcing on the connection between the compressor and
the power source.
(DE #35-3, p. 6.)
Additionally, he reviewed
Cooper’s findings, inspection photos, and conducted a laboratory
exam.
(Id., pp. 3-4.)
O’Neal also used information from a class
(taught by Mr. Olsen, Defendant’s expert Electrical Engineer), that
he had attended. When challenged during his deposition to identify
any text that supported O’Neal’s statement that the plug body
connected to the compressor could combust, O’‘Neal cited Olsen’s
text associated with the class “Electric Heat Generation for Fire
Investigators with extra materials on heat-induced arcing and arc
mapping.”
(DE #43-6, p. 75.)
According to Olsen, that same text
13
states that arcing can be a candidate for the cause of a fire
(rarely a candidate, yet, a candidate).
(Id., p. 77.)
O’Neal
testified that NFPA states that “if there is a single arc that you
identify, it is the most likely, most probable, the ignition source
of the fire.”
Id.
In sum, both experts gathered relevant data, applied it to the
NFPA, and reached their scientific conclusions.
Their expert
testimony will clearly help a jury in determining the cause of the
fire at issue.
As such, the testimony and reports of both O’Neal
and Cooper are both reliable and relevant, and are therefore
admissible under Daubert.
Motion for Summary Judgment
1.
Defective Design and Adequate Warning Claims
In Count I, Plaintiff states a claim for negligence in its
complaint, alleging, inter alia, that Lennox was negligent in
“defectively designing” and “failing to provide adequate warnings,
instructions and guide for the Air Conditioner and its component
parts.” (Compl., DE #5, p. 3.)
In its memorandum in support of
the motion for summary judgment, Lennox argues that CIC has not
come forward with any evidence from which a trier of fact could
conclude that the ACU was defectively designed or had defective
warnings.
(DE #31, pp. 9-10.)
In its response memorandum, CIC
completely fails to address the arguments on design defect or
14
failure to warn.
To establish a prima facie case under a design defect theory,
Plaintiffs must establish: (1) the manufacturer placed into the
stream of commerce a defectively designed, unreasonably dangerous
product; (2) a feasible safer alternative product design existed;
and (3) the product defect proximately caused the plaintiff’s
injury.
See, e.g., Barnard v. Saturn Corp., 790 N.E.2d 1023, 1032
(Ind. Ct. App. 2003). Regarding the theory of negligent failure to
provide adequate warnings, a product is defective if the seller
fails to: (1) properly package or label the product to give
reasonable warnings of danger about the product; or (2) give
reasonably complete instructions on proper use of the product; when
the seller, by exercising reasonable diligence, could have made
such warnings or instructions available to the user or consumer.
Ind. Code § 34-20-4-2. Courts have held that where Plaintiffs have
failed to show a defective design, there is no duty to warn.
See
American Optical Co. v. Weidenhamer, 457 N.E.2d 181, 187 (Ind.
1983) (“Absent proof of a dangerous instrumentality, or proof of a
defect or improper design making an otherwise harmless instrument
dangerous,
there
is
no
duty
to
warn
of
product
connected
dangers.”); Rogers v. Ford Motor Co., 952 F. Supp. 606, 617 (N.D.
Ind. 1997) (explaining “it is axiomatic that there can be no duty
to warn where no design defect has been shown”).
In CIC’s response to the instant summary judgment motion,
15
Plaintiff completely fails to respond to CIC’s arguments regarding
design defect and failure to warn.
points are therefore waived.
588,
597-98
(7th
Cir.
Lennox’s arguments on these
See Palmer v. Marion Cnty., 327 F.3d
2003)
(“because
[plaintiff]
failed
to
delineate his negligence claim in his district court brief in
opposition to summary judgment or in his brief to this Court, his
negligence claim is deemed abandoned”); Laborers’ Int’l Union of N.
Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (stating that
arguments not presented to the district court in response to
summary judgment motions are deemed waived).
Accordingly, the
Court grants summary judgment in favor of Lennox on the claims of
design defect and failure to adequately warn.
2.
Count II - Strict Products Liability
To establish a prima facie case of strict liability for a
manufacturing defect, the plaintiff must show that: (1) the product
is
defective
and
unreasonably
dangerous,
(2)
the
defective
condition existed at the time the product left the defendant’s
control, and (3) the defective condition is the proximate cause of
the plaintiff’s injuries.
Natural Gas Odorizing, Inc. v. Downs,
685 N.E.2d 155, 160 (Ind. Ct. App. 1997).
A product is defective
when it is in a condition not contemplated by the expected users,
and is unreasonably dangerous when used properly.
20-4-1.
Ind. Code § 34-
The plaintiff has the burden of proving that the product
16
was
in
a
defective
dangerous.
condition
that
rendered
it
unreasonably
Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d
396, 401 (Ind. Ct. App. 1999).
Generally, the mere fact that an
accident occurred does not create an inference of a defect in a
products liability case. See Smith v. Michigan Beverage Co., Inc.,
495 F.2d 754, 757 (7th Cir. 1974).
Lennox
argues
that
Plaintiff
has
put
forth
evidence to prove that the ACU was defective.
insufficient
In response, CIC
cites Ford Motor Co. v. Reed, 689 N.E.2d 751 (Ind. Ct. App. 1997),
for the proposition that a plaintiff can prove a product defect by
using any of four methods: Plaintiffs may produce an expert to
offer
direct
evidence
of
a
specific
manufacturing
defect;
plaintiffs may use an expert to circumstantially prove that a
specific
defect
caused
the
product
failure;
plaintiffs
may
introduce direct evidence from an eyewitness of the malfunction,
supported by expert testimony explaining the possible causes of the
defective condition; and plaintiffs may introduce inferential
evidence by negating other possible causes.
Reed, 689 N.E.2d at
753.
This Court has already analyzed Reed and its similar line of
cases in Gaskin v. Sharp Electronics Corp., No. 2:05-CV-303, 2007
WL 2819660 (N.D. Ind. Sept. 26, 2007), another products liability
case
which
revolved
around
the
standard
of
proof
for
a
manufacturing defect that arose from a fire. In Gaskin, this Court
17
recognized the Seventh Circuit decision in Whitted, which concluded
that:
We find that under the Indiana Strict Product
Liability Act a plaintiff may use circumstantial
evidence to establish that a manufacturing defect
existed only when the plaintiff presents evidence
by way of expert testimony, by way of negating
other reasonably possible causes, or by way of some
combination of the two.
Whitted v. General Motors Corp., 58 F.3d 1200, 1209 (7th Cir.
1995). Ultimately, this Court concluded in Gaskin that:
Following the Seventh Circuit in Whitted and the
Indiana Appellate Court in Reed, this Court
recognizes the four factors set forth in Reed as
“helpful tools” in the basic inquiry as to whether
there is sufficient evidence of a defect, and
recognizes that in some rare circumstances,
circumstantial evidence can produce reasonable
inferences from which a jury can reasonably find
that
the
defendant
manufactured
a
product
containing a defect.
Reed, 689 N.E.2d at 754;
Whitted, 58 F.3d at 1208; see also Smith v. Ford
Motor Co., 908 F. Supp. 590, 593 (N.D. Ind. 1995)
(“[t]he
notion
that
a
plaintiff
may
use
circumstantial evidence to prove a defect in an
Indiana products liability case was recently
reaffirmed by the Seventh Circuit in Whitted”).
“By the very nature of fire, its cause must often
be proven through a combination of common sense,
circumstantial evidence and expert testimony.”
Westchester Fire Ins. Co. v. American Wood Fibers,
Inc., No. 2:03-CV-178-TS, 2006 WL 752584, at *13
(N.D. Ind. Mar. 21, 2006) (quoting Standard
Commercial Tobacco Co., Inc. v. M/V Recife, 827 F.
Supp. 990, 1001 (S.D.N.Y. 1993)).
This Court
agrees with the writings of the court in SCM Corp.
v. Letterer, 448 N.E.2d 686 (Ind. Ct. App. 1983):
The courts would obviously prefer, even in a
strict liability case, to have proof of a
specific defect causing the harm. But this is
not always possible, especially in cases where
18
the product has been destroyed due to its
malfunction.
Most often the failure to
produce the product will have a bearing only
on the reliability of the circumstantial
evidence of causation. If there is sufficient
other evidence that harm was caused by some
unspecified defect and no other cause likely,
the
plaintiff
ordinarily
has
made
a
submissible cause.
SCM, 448 N.E.2d at 691
(quoting 1 Frumer & Friedman, Products
Liability § 11.01[3][A], 217).
Gaskin, 2007 WL 2819660, at *6-7.
This case is factually similar to Reed, where the plaintiff
was injured by a car fire that occurred in his garage.
Although
the plaintiff’s expert testified that the fire started in the car’s
center console, no witness could pinpoint the identity of the
specific defect.
However, the plaintiff “all but eliminate[d]
every possibility but a defect in the console.”
at 755.
Reed, 689 N.E.2d
The car was owned for only five months, and the expert
indicated that the cause of the fire was some type of electrical
defect within the center console.
Id.
The court found that
evidence enough for the jury to conclude that some defect in the
console caused the fire.
Id.
Similarly, in this case, Plaintiffs have produced two experts.
Cooper found that the fire originated at the ACU.
2.)
(DE #35-2, p.
O’Neal also opines that the ignition source was the ACU;
specifically, that arc mapping placed the fire originating inside
the condensing unit, which was also consistent with the fire
investigator’s area of origin.
(DE #35-3, pp. 7-8.)
19
Howard
testified that other than spraying the outside of the ACU with a
hose, neither he nor anyone else serviced it, therefore, it had not
been altered after it left Lennox’s possession.
44-45.)
(Howard Dep., pp.
Finally, Cooper and O’Neil investigated other potential
causes of the fire, and ruled out other sources.
DE #35-3, p. 7.)
(DE #35-2, p. 4;
Specifically, Cooper’s report states that “[n]o
evidence of carelessly discarded smoking material was found in this
area” (DE #35-2, p. 4), and O’Neil ultimately concluded that “[n]o
other competent ignition sources were identifies which would cause
the damage observed; therefore, the arcing at the compressor was
the fire’s ignition source” (DE #35-3, p. 7).
While
Lennox
contends
that
Plaintiff
has
not
properly
eliminated all causes of the fire (including failure to properly
maintain and service the ACU and thoroughly rule out careless
smoking), as this Court recognized in Gaskin:
“The plaintiff in a products liability suit is not
required to exclude every possibility, however
fantastic or remote, that the defect which led to
the accident was caused by someone other than the
defendants.” Smith, 908 F. Supp. at 596 (quoting
Wedge v. Planters Lifesavers Co., 17 F.3d 209, 211
(7th Cir. 1994)); see also Henderson v. W.C. Haas
Realty Management, 561 S.W.2d 382, 386 (Mo. Ct.
App. 1977) (“it is not required that the evidence
exclude all possibility of another origin or that
it be undisputed; it is sufficient if all the facts
and circumstances in evidence fairly warrant the
conclusion that the fire did not originate from
some other cause”).
As noted by the Court in
Smith, “[i]f plaintiff were required to disprove
every possible eventuality, virtually no products
liability action could ever survive summary
judgment.” Smith, 908 F. Supp. at 596.
20
Gaskin, 2007 WL 2819660, at *7.
Viewing
the
facts
in
the
light
most
favorable
to
the
nonmovant, as this Court must at this stage of summary judgment, it
finds that Plaintiff has sufficiently eliminated other reasonably
possible causes, and has satisfied the fourth method of proving a
manufacturing defect as annunciated in Whitted and Reed.
As such,
summary judgment is inappropriate on Count II, for manufacturing
defect.
3.
Breach of Warranty (Count III)
The Court makes a final note that Count III states a claim for
breach of warranty, alleging Lennox breached its warranty “by
manufacturing, designing, selling and distributing a defective unmerchantable Air Conditioner.” (Id., p. 6.) CIC does not argue in
its motion for summary judgment or memoranda in support that it is
entitled to summary judgment on Count III for breach of warranty
(indeed, neither party addresses the breach of warranty claim at
all); therefore, Count III survives and remains pending.
CONCLUSION
For the reasons set forth below, the Motion for Summary
Judgment (DE #30) is GRANTED IN PART AND DENIED IN PART. It is
GRANTED as to Plaintiff’s claims for design defect and failure to
21
adequately warn, and the Clerk is ORDERED to DISMISS these claims
WITH PREJUDICE.
It is DENIED as to Count II (strict products
liability) which REMAINS PENDING. The Motion to Strike (DE #39) is
DENIED.
DATED:
The Motion for Oral Argument (DE #40) is also DENIED.
February 9, 2016
/s/ RUDY LOZANO, Judge
United States District Court
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