Dockhorn v. Hafele America Company et al

Filing 195

MEMORANDUM AND ORDER: 151 Joint MOTION to Exclude the Testimony of Plaintiff's Expert James L. Martin is denied. 153 Joint MOTION to Exclude Testimony of Plaintiff's Expert Michael Schlatman is granted in part. 187 MOTION to Strike [1 78] Memorandum in Opposition to Motion Statement of Facts and Supporting Affidavit of Plaintiff is denied. 149 Joint MOTION for Summary Judgment is granted in part and denied in part. 154 Motion for Summary Judgment is granted. 157 Motion to Exclude plaintiff's experts is denied as moot. SEE ORDER FOR FURTHER DETAILS. Signed by District Judge Julie A. Robinson on 3/23/10. (mb) Modified text on 3/23/2010 (mb).

lml IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS ) ) Plaintiff, ) ) ) vs. ) ) KITCHENS BY KLEWENO, ) et al., ) ) Defendants. ) ____________________________________) ALLISON DOCKHORN,

Case No. 08-2307-JAR

MEMORANDUM AND ORDER In this subrogation action, plaintiff Allison Dockhorn alleges claims against defendants Kitchens by Kleweno ("Kleweno"), Cherie Brown, David Brown, d/b/a Designer Craftsman Renovation, and Clifford "Kent" Means, d/b/a Clifford Engineering Electric Company arising out of a fire that damaged plaintiff's home. Plaintiff asserts the following claims: 1) negligent design; 2) negligent failure to warn; 3) breach of express and implied warranty; and 4) breach of contract.1 This matter presently comes before the Court on the following motions: Joint Motion for Summary Judgment (Doc. 149) filed by defendants Kleweno, Cherie Brown and David Brown (collectively the "defendants"); Motion for Summary Judgment (Doc. 154) filed by defendant Clifford "Kent" Means; defendants' Joint Motion in Limine to Exclude the Testimony of Plaintiff's Experts, James Martin (Doc. 151) and Michael Schlatman (Doc. 153); Motion to Exclude Plaintiff's Experts (Doc. 157) filed by defendant Means; and defendants' Motion to

The products liability claim asserted against Häfele America Company was dismissed, because it was a distributor and not a manufacturer (Doc. 111.)

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Strike Memorandum in Opposition to Motion for Summary Judgment (Doc. 187). For the reasons set forth below, defendants' motions are granted in part and denied in part. I. Summary Judgment Standard Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law."2 In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.3 "There is no genuine issue of material fact unless the evidence, construed in the light most favorable to the nonmoving party, is such that a reasonable jury could return a verdict for the nonmoving party."4 A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim."5 An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."6 The moving party initially must show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law.7 In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an

2

Fed. R. Civ. P. 56(c)(2). City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010). Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).

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Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001) (citing Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998)).
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Adler, 144 F.3d at 670 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Spaulding, 279 F.3d at 904 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

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essential element of that party's claim.8 Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial."9 The nonmoving party may not simply rest upon its pleadings to satisfy its burden.10 Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant."11 To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein."12 "The nonmoving party does not have to produce evidence in a form that would be admissible at trial, but the content or substance of the evidence must be admissible."13 Finally, summary judgment is not a "disfavored procedural shortcut"; on the contrary, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action."14 In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial."15 When examining the underlying facts of the

Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10th Cir. 2000) (citing Adler, 144 F.3d at 671); see also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010). Anderson, 477 U.S. at 256; Celotex, 477 U.S. at 324; Spaulding, 279 F.3d at 904 (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
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Anderson, 477 U.S. at 256; accord Eck v. Parke, Davis & Co., 256 F.3d 1013, 1017 (10th Cir. 2001).

Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10th Cir.2000) (quoting Adler, 144 F.3d at 671); see Kannady, 590 F.3d at 1169.
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Adams, 233 F.3d at 1246. Id. Celotex, 477 U.S. at 327 (quoting Fed. R. Civ. P. 1). Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988).

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case, the Court is cognizant that it may not make credibility determinations or weigh the evidence.16 II. Motion to Strike Before determining the uncontroverted facts in this matter, the Court must address defendants' motion to strike. The standards for ruling on a motion to strike are well established. Rule 12(f) of the Federal Rules of Civil Procedure provides that the court may order stricken from any pleading "any redundant, immaterial, impertinent or scandalous matter."17 Because striking an entire pleading, or a portion thereof, is a drastic remedy, and because a motion to strike may often be brought as a dilatory tactic, motions to strike under Rule 12(f) are generally disfavored.18 The decision to grant a motion to strike lies within the court's sound discretion.19 This Court typically declines to strike a response to a motion for summary judgment or a supporting affidavit that does not comply with D. Kan. Rule 56.1 or Rule 56(e), and instead simply disregards those portions of the response or affidavit that do not comply.20 Defendants move to strike plaintiff's Statement of Additional Facts as well as plaintiff's second affidavit. The Court will discuss each in turn.

16

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). Fed. R. Civ. P. 12(f).

17

Thompson v. Jiffy Lube Int'l, Inc., No. 05-1203-WEB, 2005 WL 2219325, at *1 (D. Kan. Sept. 13, 2005); Pencro Assoc., Inc. v. Sprint Corp., No. 04-2459-JWL, 2005 WL 950626, at *1 (D. Kan. Apr. 25, 2005);
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Geer v. Cox, 242 F. Supp. 2d 1009, 1025 (D. Kan. 2003).

20 See, e.g., Stevens v. Water Dist. One of Johnson County, 561 F. Supp. 2d 1224, 1231 (D. Kan. 2008) (citation omitted).

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A.

Statement of Additional Facts

Defendants move to strike plaintiff's entire Statement of Additional Uncontroverted Facts numbered 1 through 145 on the basis it violates Rule 56.1 because it contains assertions that are not material or concise, are based on plaintiff's "sham affidavit," are argument, speculation or conclusory, or are otherwise inadmissible. Defendants complain that in their motion for summary judgment, they submitted a mere fourteen facts, compared to the 145 additional facts set forth by plaintiff. Defendants respond to all but nine of plaintiff's numbered Statement of Additional Uncontroverted Facts with the following identical paragraph: Defendants object to this "uncontroverted fact" asserted by Plaintiff on the basis it violates Federal District Court Rule 56.1(b) in that it: (1) is in no way material to the Motion for Summary Judgment; (2) is not concise; (3) is based on Plaintiff's sham Affidavit; (4) is not a fact; and/or (5) is otherwise inadmissible evidence. Plaintiff misuses the Rules of Civil Procedure by asserting immaterial facts in order to attempt to create the appearance of a disputed issue/matter where none exists, attempting to use the asserted "fact" as a request for admissions after discovery has closed, and to give a narrative to Plaintiff's trial themes. Accordingly, Defendants have contemporaneously filed a Motion to Strike this "fact" and incorporate it herein. Defendants may respond to this "fact" pending the Court's ruling on Defendant's [sic] Motion to Strike and will respond based on such ruling.21 Rule 56.1(b), the local rule for summary judgment responses, requires: (1) . . . [A] section that contains a concise statement of material facts as to which the party contends a genuine issue exists. Each fact in dispute shall be numbered by paragraph, shall refer with particularity to those portions of the record upon which the
Instead of setting forth their standard objection and referencing the specific numbered statements of additional fact, defendants actually cut and pasted the same paragraph 136 times, resulting in 65 additional pages to their reply brief. (Doc. 186). The Court finds this tactic neither productive nor amusing.
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opposing party relies, and, if applicable, shall state the number of movant's fact that is disputed. (2) if the party opposing summary judgment relies on any facts not contained in the movant's memorandum, that party shall set forth each additional fact in a separately numbered paragraph, supported by references to the record, in the manner required by subsection (a), above. All material facts set forth in this statement of the non-moving party shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the reply of the moving party.22 The response must "fairly meet the substance of the matter asserted."23 In turn, in a reply brief, "the moving party shall respond to the non-moving party's statement of undisputed additional material facts in the manner prescribed in subsection (b)(1)."24 While defendants object to plaintiff's statement of additional facts, it is defendants who are not in compliance with the Rule 56.1. Significantly, in addition to failing to respond to plaintiff's additional facts, defendants do not even explain which of the five objectionable categories each additional fact falls within. While plaintiff's additional facts are quite numerous, and some appear to be hyperbole, the Court disagrees with defendants' blanket characterization of all but nine of plaintiff's additional facts as immaterial or improper. Remarkably, plaintiff sets forth additional facts regarding terms of the parties' contract, defendants' services and training as kitchen designers and contractors, as well as details and circumstances of the fire, none of which were addressed in defendants' fourteen statement of facts and which the Court considers material to the issues before it. Accordingly, the Court declines to strike plaintiff's

22

D. Kan. R. 56.1(b) (emphasis added). R. 56.1(e). R. 56.1(c).

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Statement of Additional Uncontroverted Facts, and will instead disregard any additional facts that are immaterial or otherwise do not comply with the relevant rules. The Court further declines to afford defendants the opportunity to controvert plaintiff's additional facts. Defendants have effectively abdicated their obligations under Rule 56.1 to the Court and will not be afforded "do-overs." Defendants' failure to strictly comply with the local rules, coupled with the tone of the parties' briefs, has made this Court's task much more difficult and has consumed more of the Court's time and energy than should be necessary in ruling on a motion for summary judgment. Accordingly, plaintiff's additional facts are deemed admitted for purposes of summary judgment, to the extent they are supported by the record and material to the Court's disposition of the motion. B. Plaintiff's Second Affidavit

Defendants ask the Court to strike and disregard portions of plaintiff's second Affidavit at paragraphs 1, 4, 5,6, 7 and 8, arguing that the affidavit constitutes a "sham" affidavit or alternatively, is conclusory, inadmissible and self-serving. "[A]n affidavit may not be disregarded [solely] because it conflicts with the affiant's prior sworn statements. In assessing a conflict under these circumstances, however, courts will disregard a contrary affidavit when they conclude that it constitutes an attempt to create a sham fact issue."25 In determining whether an affidavit creates a sham issue, the Tenth Circuit has directed district courts to consider whether "(1) the affiant was cross-examined during his earlier testimony; (2) the affiant had access to the pertinent evidence at the time of his earlier testimony

The Law Co., Inc. v. Mowhawk Constr. & Supply Co., Inc., 577 F.3d 1164, 1169 (10th Cir. 2009) (quoting Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir. 1986)).

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or whether the affidavit was based on newly discovered evidence; and (3) the earlier testimony reflects confusion which the affidavit attempts to explain."26 The Circuit "explicitly require[s] that a district court first `determine whether the conflicting affidavit is simply an attempt to create a "sham fact issue" before excluding it from summary judgment consideration.'"27 In addition, Fed. R. Civ. P. 56(e)(1) provides that "[a] supporting or opposing affidavit must be admissible in evidence, and show that the affiant is competent to testify to the matters stated." "Though an affidavit which fails to meet any of the three requirements is subject to a motion to strike, the [c]ourt may also enforce the rule by disregarding portions of the affidavit it finds insufficient."28 "Conclusory and self-serving affidavits are not sufficient."29 Plaintiff provided her first affidavit on August 28, 2008.30 Plaintiff was deposed on March 5, 2009.31 Her second affidavit was provided on November 2, 2009.32 Plaintiff's deposition testimony provides, in part: Q. A. It's common knowledge that if you put something too close to a light, it's going to cause fire? Yes.

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Id. (quoting Ralston v. Smith & Nephew Richards, Inc., 275 F.3d 965, 973 (10th Cir. 2001)).

Id. (quoting Durtsche v. Am. Colloid Co., 958 F.2d 1007, 1010 n.2 (10th Cir. 1992) (quoting Franks, 796 F.2d at 1237)). City of Shawnee, Kan. v. Argonaut Ins. Co., 546 F. Supp. 2d 1163, 1177 (D. Kan. 2008) (internal quotation and citations omitted). Murray v. City of Sapulpa, 45 F.3d 1417, 1422 (10th Cir. 1995) (quoting Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991)).
30 29 28

27

(Doc. 178, Ex. 10.) (Doc. 187, Ex. 12.) (Doc. 178, Ex. 11.)

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... Q. A. ... Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. ... Q. A. Q. Regardless of whether or not you were warned, you knew that halogen lights got hot? Correct. You knew as a matter of common sense that if things were placed too close to the halogen lights, they could catch fire? (Objection to form by plaintiff's counsel.) Q. A. True? Yes.33 You understood clothing is flammable? Correct. Can be? Uh-huh. Sheets can be flammable, true? Yes. Papers flammable? Yes. These are things you knew about? Yes. Common sense? Correct. You didn't need a warning to tell you that, did you? That's something you knew as common knowledge? Yes.

Defendants object to the following paragraphs in plaintiff's second affidavit: 1. While I was aware that light bulbs get hot, prior to the date of the fire I did not have any specific knowledge that the halogen under-cabinet puck

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(Doc. 188, Ex. A.)

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lights installed in my kitchen and laundry room would become so hot that they were capable of setting fire to normal household items placed on the countertop. ... 4. Prior to the fire occurring at my home, I did not know that the halogen undercabinet puck lights installed during my kitchen and laundry room remodel could set fire to clothing or other ordinary household items placed on the countertop. Even though I knew that all light bulbs get hot, I had no reason to know that clothes and bed sheets sitting on the countertop below the halogen lights, but not in direct contact with the lights, would be a fire hazard. I was not informed or warned by anyone prior to the fire that the puck lights could produce the amount of heat necessary to cause a fire hazard. I was not informed or warned by Kent Means, David Brown, Cherie Brown or Randy Sisk that I should not put any flammable materials within 12 inches directly below the puck lights. Restricting the use of the countertops to six inches of safe usable space would have rendered the countertops in the kitchen and laundry areas useless.

5.

6.

7.

8.

Defendants argue that paragraphs 1, 4 and 5 should be stricken because they are inconsistent with plaintiff's deposition testimony, and are offered to create a fact issue where none exists. Plaintiff responds that the line of questioning in plaintiff's deposition was too general, vague and ambiguous to apply to the specific situation at hand. Although counsel objected to the form of the question, he did not cross-examine plaintiff further on this issue. The Court agrees with plaintiff that the deposition testimony and these three paragraphs are not necessarily inconsistent on this point. It is apparent to the Court that defendants' questions to plaintiff on her knowledge of halogen lights and flammable items were cast in very 10

general terms, which this declaration attempts to explain more specifically in the context of the lights and countertop items in her kitchen and laundry room. Additionally, it is undisputed that plaintiff was not cross-examined. For these reasons, the Court declines to disregard plaintiff's declarations about her specific knowledge of a potential fire hazard in her kitchen. Defendants also argue that paragraphs 6 and 7 are inconsistent with her deposition testimony as well as paragraph 10 of her second affidavit, which states: I do not know if these instructions were actually left in the stack of documents left for me by David Brown following the completion of the project. Even if this document had been included, I would not have had any reason to review it, as I relied upon those that were doing the work in my house to properly install the cabinets, lighting, appliances and fixtures. David Brown testified in his deposition that he delivered paperwork regarding appliances and fixtures to plaintiff, including the mounting instruction sheet that came with the light fixture, which included a written warning. Although plaintiff did not recall at the time of her deposition specifically the warning being left in the paperwork, she admitted, "It could have been." Defendants argue that plaintiff cannot testify now that she was not "warned by anyone" prior to the fire that the puck lights could produce the amount of heat necessary to cause a fire hazard. Paragraph 6, 7 and 10 should be read in conjunction with paragraph 9, which states, "Before this litigation, I never saw or reviewed the Mounting Instructions for the puck lights, which were installed in my kitchen and laundry room." Moreover, paragraph 8 of plaintiff's first affidavit states, "I was not warned by Kleweno, DCR or its contractors that the lighting fixtures and component parts of the Lighting System generated substantial and excessive heat. I did not

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know that the Lighting System was a fire hazard."34 The Court agrees with plaintiff that the deposition testimony and these three paragraphs are not necessarily inconsistent on this point. Plaintiff has consistently testified that she was not verbally informed or warned of the potential hazards caused by the halogen lights and that she did not know if the warnings were included in the paperwork left by David Brown; this declaration attempts to explain that even if had left the "Mounting Instructions," she never saw them and does not know if Brown actually left these instructions. The issue of whether plaintiff received adequate warnings about the light fixture has always been in dispute, and plaintiff's declarations do not create a sham fact issue where none existed before. Additionally, it is undisputed that plaintiff was not cross-examined. For all of these reasons, the Court declines to disregard plaintiff's declarations in paragraphs 6 and 7.

Finally, defendants object to paragraph 8 on the grounds that it is conclusory and selfserving and is based on mere speculation, conjecture and/or surmise. In addition, defendants argue this testimony is purely opinion, and thus inadmissible on summary judgment. Plaintiff does not dispute that this declaration is inadmissible, but should be considered on summary judgment on the chance that it may ultimately be presented at trial in an admissible form. The Court agrees with defendants, and disregards this declaration, as plaintiff is not competent to testify on the matters stated, as required by Rule 56(e)(1). III. Statement of Uncontroverted Facts The following facts are either uncontroverted, stipulated to, or taken in the light most

34

(Doc. 178, Ex.10.)

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favorable to plaintiff. Defendant Kleweno is a company specializing in kitchen planning and interior design. Randall Sisk, President and owner of Kleweno, testified in his deposition that Kleweno designs the layout of clients' spaces. When the final stage of the drawing is prepared, it is a working blueprint, which serves as a script to be implemented into the project. The plan is drawn for the client, but belongs to Kleweno until a contract is signed. Sisk testified that he has never taken any courses or additional education or training in the area of kitchen design, other than on-thejob training from his former partner, Merle Kleweno. Sisk is not certified or licensed in his field, nor is he an architect. Plaintiff entered into a contract on October 17, 2001 with defendant Kleweno to design and build a custom kitchen and laundry room for her home, including the sale and installation of cabinetry, countertops, mantel, backsplash, appliances, lights over island, wood legs, cabinet lighting and electrical. Defendants used cabinetry by Neff Cabinets that was designed specifically for use with halogen lights. Neither plaintiff nor her then-husband was presented with the specific brand or details of the puck lighting to be installed and left the details up to the designer. Delivery and installation of the kitchen and laundry cabinetry and lighting system occurred before October 22, 2002. Defendant Cherie Brown is employed by Kleweno as a "Kitchen Designer." She was the principal designer that worked with plaintiff. Brown did not take any additional classes or receive any additional education other than on-the-job training to achieve the designation and title of "Kitchen Designer." She does not hold any professional licenses. Defendant David Brown, d/b/a Designer Craftsman Renovation ("DCR"), is an 13

independent contractor who performs general contracting services for Kleweno. David Brown is classified as a "Residential Contractor" who serves in the role as a residential general contractor, managing the project in terms of the implementation of the design and layout set forth in the working blueprints. Kleweno hired David Brown to install the over-the-counter, under-cabinet lighting. Kleweno provided the component parts for the under-cabinet halogen lighting system. David Brown hired defendant Clifford "Kent" Means, d/b/a Clifford Engineering Electric Company, to assist him in all phases of the electrical work on the project, including the installation of the under-cabinet lighting. Means does not have an engineering degree or certificate of any kind, other than on-the-job training from a friend who is a Master Electrician. Means described the work he performed on the project as removing the old existing wiring and installing new branch circuitry wiring, switching and lighting that was part of the custom kitchen package. On November 11, 2006, a fire occurred at plaintiff's residence. Plaintiff's sister, Stephanie Malm, was staying with plaintiff's children while plaintiff was out for the evening. Plaintiff left some folded clothes and sheets in the laundry room, on the countertop adjacent to the dryer. Her sister turned the under-cabinet lights on in the laundry room before leaving to take the children to dinner; the source of the fire has been identified as ignition of that laundry, which was heated to ignition temperature by the under-cabinet halogen light fixture. According to the printed installation instructions provided by Häfele with the halogen puck lights, "a minimum distance of 12 inches between the light and any surface must be maintained." There are four different lighting systems in plaintiff's kitchen: 1) recessed can lights in the ceiling; 2) cable lighting system suspended from the ceiling over the island; 3) low-voltage 14

strip lighting placed on the top of the upper cabinets; and 4) under-cabinet halogen puck lighting system. The light fixtures installed in the point of origin of the fire were Häfele brand 20watt/12-volt rated, low-voltage halogen puck lights. Plaintiff's ex-husband recalls David Brown describing the low-voltage lighting as a new way of doing decorative lighting, similar to accent lighting that one might put around a pool outdoors. The kitchen included wall cabinets with halogen lights installed in the bottom panel for illumination of the countertop below. Cherie Brown ordered twenty of the chrome 20-watt puck lights for the under-cabinet lighting. Each halogen puck light comes individually wrapped with Mounting Instructions in a plastic bag. The mounting requirements indicate, "use only with a Häfele UL/CSA listed 12volt/Class 2 power supply." David Brown and Means did not use the Häfele power supply system. The Mounting Instructions state that they contain "IMPORTANT MOUNTING REQUIREMENTS." Specifically, the instructions state that when mounted for use in under cabinet application, the fixture shall be spaced 12" from any surfaces below the fixture. In addition the Mounting Instructions advise: INSTRUCTIONS PERTAINING TO RISK OF FIRE, ELECTRIC SHOCK OR INJURY TO PERSONS. IMPORTANT SAFETY INSTRUCTIONS. WARNING--To reduce the risk of FIRE, ELECTRIC SHOCK, OR INJURY TO PERSONS . . . 6. Keep materials that my [sic] burn away from fixture. A minimum distance of 12" between the light and any surface must be maintained. This is the only specific documentation that would have been provided to plaintiff as it related to the halogen under-cabinet lighting system. The plan drawings created by Cherie Brown generally indicated the placement of various

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lights, but did not specify the make, model, brand, wattage or voltage or exact placement of any lights to be selected or installed in the kitchen or laundry room areas. The plan drawings show a diagram of the laundry room area identified as the point of origin for the fire. The drawings provide for 46 centimeters, or 18.1 inches, of clearance between the granite countertop and the bottom of the over-counter cabinetry. Plaintiff had already purchased an under-cabinet washer and dryer, which were incorporated into the design and layout of the kitchen and laundry room. The plan drawings did not indicate the path of the electric circuitry to provide power to the various lighting systems in the kitchen and laundry room. David Brown and Means made those decisions at the time of installation. Neff Cabinetry has optional lighting systems, but the designer has the choice of which brand to use. Cherie Brown testified that she paid attention to the 12-inch spacing requirement, for the even effect it has lighting the countertop . The only conversation Cherie Brown can recall with plaintiff regarding lighting was about creating even light, both on the work surface from above and underneath, and the decorative lighting. The back side of the halogen puck lights have a warning label that states: "CAUTION: RISK OF FIRE." This warning would not be visible once the light was mounted and the concealer panel put into place. The only paperwork that includes warnings, customary instructions or other details on the light is that which comes with the Mounting Instructions. Kleweno tells its customers how to replace the light bulbs. Stamped on the surface of the puck light is a designation of numbers and symbols indicating that the 12-volt/20-watt halogen puck light should maintain a distance of 6 inches between the surface of the light and flammable materials. There is also an adhesive sticker to be taped onto the concealer panel. Cherie Brown agrees that it would be necessary to have work space where plaintiff would 16

be taking laundry out of the washer and dryer. The work space that plaintiff had in the laundry room was between the countertop and the over-counter cabinetry. David Brown testified that he understood the 12-inch minimum distance and agreed that, based on the cautionary instructions of the mounting specifications, there would be approximately six inches of usable safe space on the countertops in plaintiff's kitchen. Brown testified that he never told plaintiff that she should not put any combustible materials higher than six inches on her granite countertop. The granite countertop is the only flat workspace in the laundry room, located above the clothes dryer. Following the construction, both Cherie and David Brown provided a final walk-through. Plaintiff's ex-husband testified that he did not remember anyone providing any warnings about placing anything under the halogen lights. David Brown testified that it was their "common practice on every kitchen to leave the client with every single piece of paper that comes with every appliance, every fixture that goes into the kitchen." Brown testified that he left the stack of literature in a drawer in plaintiff's kitchen. Although he could not recall saying anything to plaintiff, Brown testified that it is "standard operating procedure" to tell the clients that they have left the literature in a specific place. Brown does not recall saying anything to plaintiff about a warning label stating "Caution: Risk of Fire," that was affixed to the halogen puck lights, but not visible after installation. Plaintiff does not know if the product literature left by Brown included information specific to the halogen puck lights. Brown did not recall having a conversation with plaintiff going over any of the cautionary information listed in the Mounting Instructions. The puck lights were provided to David Brown directly by Kleweno as part of the project. As a contractor, Brown consults the working blueprint to see where the puck lights 17

should be placed, then installed the lights according to the spacing specifications from Häfele. When Brown began using the puck lights in 1996 or 1997, he would place the peel-off warning decal on the concealer panel so that the homeowner would be able to look up underneath the cabinet and see the warning. Brown testified that at some point, Häfele stopped providing the peel-off label. Brown testified that in the past, there was also a warning sticker that should be placed on the light itself, toward the lens. Brown does not recall whether the sticker came with the lights installed in plaintiff's kitchen. Plaintiff testified that while she was aware that light bulbs get hot, prior to the date of the fire she did not have any specific knowledge that the halogen under-cabinet puck lights installed in her kitchen and laundry room would become so hot that they were capable of setting fire to normal household items placed on the countertop. Plaintiff used the surface area on the granite countertop immediately above the built-in washer and dryer in the laundry room for work space, including sorting and folding laundry before it was put away. Dockhorn testified that she was not informed or warned by plaintiffs that the puck lights could produce the amount of heat necessary to cause a fire hazard, nor was she informed that she should not put any flammable materials within 12 inches directly below the puck lights. Before this litigation, plaintiff testified that she never saw nor reviewed the Mounting Instructions for the puck lights and does not know if these instructions were in the stack of literature left by David Brown. Plaintiff states that even if this document would have been included, she would not have had any reason to review it, as she relied upon defendants to properly install the light fixtures. Plaintiff states that she never had a conversation with any of the defendants about any special care, use, instructions or warnings related to the under-cabinet lighting. There were no cautionary labels provided with these lights 18

or placed on or near the lights that were visible to plaintiff. IV. Motions to Exclude Expert Testimony Because several of defendants' issues on summary judgment turn on admissibility of expert testimony, the Court will first address the motions to exclude. A. Daubert Standard

The Court has broad discretion in deciding whether to admit expert testimony.35 Fed. R. Evid. 702 provides that a witness who is qualified by knowledge, skill, experience, training or education may testify in the form of opinion or otherwise as to scientific, technical or other specialized knowledge if such testimony will assist the trier of fact to understand the evidence or to determine a fact in issue, "if (1) the testimony 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."36 The proponent of expert testimony must show "a grounding in the methods and procedures of science which must be based on actual knowledge and not subjective belief or unaccepted speculation."37 In order to determine whether an expert opinion is admissible, the court performs a two-step analysis. "[A] district court must [first] determine if the expert's proffered testimony . . . has `a reliable basis in the knowledge and experience of his

35

Kieffer v. Weston Land, Inc., 90 F.3d 1496, 1499 (10th Cir. 1996) (citation omitted). Fed. R. Evid. 702. Mitchell v. Gencorp Inc., 165 F.3d 778, 780 (10th Cir. 1999).

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37

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discipline.'"38 Second, the district court must further inquire into whether the proposed testimony is sufficiently "relevant to the task at hand."39 An expert opinion "must be based on facts which enable [him] to express a reasonably accurate conclusion as opposed to conjecture or speculation . . . absolute certainty is not required."40 And it is not necessary to prove that the expert is "indisputably correct," but only that the "method employed by the expert in reaching the conclusion is scientifically sound and that the opinion is based on facts which satisfy Rule 702's reliability requirements."41 "To qualify as an expert, the witness must possess such `knowledge, skill, experience, training or education' in the particular field as to make it appear that his or her opinion would rest on a substantial foundation and would tend to aid the trier of fact in its search for the truth."42 Daubert sets forth a non-exhaustive list of four factors that the trial court may consider when conducting its inquiry under Rule 702: (1) whether the theory used can be and has been tested; (2) whether it has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) general acceptance in the scientific community.43 In Kumho Tire, however, the Supreme Court emphasized that these four factors are not a "definitive checklist or test" and that a court's gatekeeping inquiry into reliability must be "tied to the facts of a

Norris v. Baxter Healthcare Corp., 397 F.3d 878, 884 (10th Cir. 2005) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 592 (1993)).
39

38

Id. (quoting Daubert, 509 U.S. at 597). Dodge v. Cotter Corp., 328 F.3d 1212, 1222 (10th Cir. 2003). Id.

40

41

Farmland Mut. Ins. Co. v. AGCO Corp., 531 F. Supp. 2d 1301, 1304 (D. Kan. 2008) (citing LifeWise Master Funding v. Telebank, 374 F.3d 917, 928 (10th Cir. 2004)).
43

42

Daubert, 509 U.S. at 593­94.

20

particular case."44 In some cases, "the relevant reliability concerns may focus upon personal knowledge or experience," rather than the Daubert factors and scientific foundation.45 It is within the discretion of the trial court to determine how to perform its gatekeeping function under Daubert.46 The most common method for fulfilling this function is a Daubert hearing, although such a process is not specifically mandated.47 In this case, the parties have not requested a hearing on these motions. The Court has carefully reviewed the exhibits filed with the motions and believes this review is sufficient to render a decision upon them without conducting an oral hearing. B. Michael Schlatman

Defendants seek to limit at trial the expert opinion testimony of Michael Schlatman, a certified fire investigator designated by plaintiff as an expert witness. Schlatman's expert opinions may be summarized as follows. Schlatman is a fire investigator for Fire Consulting and Case Review International. On November 16, 2006, his firm received an assignment to conduct an origin and cause examination at plaintiff's residence. Two Special Investigators from Schlatman's firms conducted a systematic fire scene examination at the structure. It was determined that the fire had originated within a laundry room on the first floor and that combustibles that had been on a countertop had been ignited by the heat from an undercabinet halogen light fixture immediately above them.
44

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 150 (1999) (internal quotations omitted). Id (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 2004)). Goebel v. Denver & Rio Grande W. R.R., 215 F.3d 1083, 1087 (10th Cir. 2000). Id.

45

46

47

21

During the course of the examination, Schlatman also conducted a systematic examination of the scene. Various electrical components were removed from the loss site and turned over to Martin Engineering for further examination by electrical engineer Jim Martin. Based on his examination, Schlatman concluded that There is no doubt that the fire originated from the ignition of combustibles on the countertop of the laundry room. The combustibles, consisting of "clothing, a sheet and a blanket" were heated to their ignition temperature by the under cabinet halogen light fixture. The installation of that type of fixture in that application is inherently unsafe. Homeowners are unfamiliar with acceptable clearances of combustibles to halogen fixtures. Although warnings by the manufacturer exist, homeowners will not be aware of them unless notified by designers or contractors utilizing them in that application. Defendants do not object to Schlatman's testimony regarding the cause and origin of the fire, but object to his testimony on kitchen and laundry room design as well as consumer warnings. Qualifications Defendants do not challenge Schlatman's educational background or competence to express opinions generally on matters of fire cause and origin. The Court notes that Schlatman has been actively engaged in the field of fire investigation for thirty years. He has been certified as a fire investigator by the Missouri State Fire Marshal's Office and the International Association of Arson Investigators ("IAAI"). He is an authorized instructor for the IAAI and the

22

National Fire Academy, including courses on the National Fire Protection Association ("NFPA") 921 Guide for Fire and Explosion Investigations, and fire investigation in commercial kitchen systems. Although Schlatman has no professional experience as a kitchen designer, cabinet maker or electrician, the Court agrees with plaintiff that his area of expertise would include identifying fire hazards, including whether a light fixture and cabinet configuration would constitute a fire hazard. NFPA 921 defines "Failure Analysis" as "[a] logical, systematic examination of an item, component, assembly or structure and its place and function within a system, conducted in order to identify and analyze the probability, causes, and consequences of potential and real failures."48 Schlatman is qualified in failure analysis and the warnings associated with the failures. Likewise, Schlatman is qualified to testify about warnings as a means of reducing the level of risk associated with a known fire hazard. Schlatman attests that he is a certified NFPA 921 instructor, and has both studied and taught topics such as warning purposes, the key elements of a proper warning and applicable warning standards. Reliability Defendants argue that Schlatman's opinions regarding design and warnings are not sufficiently reliable under the standards set forth in Daubert and Kumho Tire. Specifically, defendants argue that Schlatman's testimony 1) is not based on sufficient facts or data, 2) is not the product of reliable principles and methodology, and 3) does not apply reliable principles and methods to the facts of the case. With respect to the first point, defendants argue that Schlatman's opinions regarding

48

NFPA 921, 2004 Ed., § 3.3.50.

23

design or warnings are based on his speculation and surmise. Defendants point to Schlatman's testimony that he does not know how close combustible material needs to be to a halogen bulb to ignite because he has not performed any testing to make that determination, and that he has never reviewed testing regarding the amount of heat that is generated by a 20-watt halogen light bulb. Defendants also argue that Schlatman appears to base his opinion regarding proper design of under-cabinet lighting on his "experience," when in fact, he has no experience in this area. Similarly, with respect to his opinion regarding warnings, defendants argue that Schlatman has never spoken with a homeowner who had under-cabinet halogen lighting, has never conducted a study as to the effectiveness of written or verbal warnings of any kind, and has no knowledge about the information provided to plaintiff. With respect to the second point, defendants argue that Schlatman's report and deposition testimony are devoid of any information regarding the application of any particular principles or methodology in reaching the conclusions contained in his report regarding design and warnings. Similarly, with respect to the third point, defendants argue that Schlatman has conducted no research whatsoever in reaching his opinions. The Court does not view any of defendants' articulated deficiencies in testing and methodology sufficient to render Schlatman's opinion inadmissible with respect to the design and placement of the light fixture as hazardous. The Court has reviewed Schlatman's affidavit, report and deposition in which he explained, among other things, that in reaching the conclusion that the light fixture created an unreasonable fire hazard when used in this application and configuration, he relied on his extensive background in fire investigation, including his specific familiarity with halogen light bulbs as a potential fire hazard, and his knowledge of the ignition temperatures for household materials, such as cotton. He also considered the fact that the 24

manufacturer established a minimum safe distance of twelve inches between the surface of the light and flammable objects. Based on his experience in the field of fire investigation, coupled with the specific information he learned about the manufacturer's warnings, Schlatman concluded that any material within the safe clearance zone created a fire hazard. Because the light fixture was positioned in such a way that normal use would include the placement of combustible items within that safe clearance zone, Schlatman concluded it was hazardous. The Court agrees with plaintiff that tests to determine how close combustible material needs to be to a halogen bulb to ignite would have added little or no weight to Schlatman's opinions, so long as the clothing was located somewhere within the 12-inch safe clearance zone. Schlatman based his opinion on his experience and expertise, as well as his investigation. In this case, "the relevant reliability concerns may focus upon personal knowledge or experience," rather than the Daubert factors and scientific foundations.49 Because Schlatman's "method" does not involve application of any controversial scientific process or theory, the Daubert factors are of less utility.50 Schlatman's method is sufficiently reliable for purposes of Rule 702, and the Court denies defendants' motion with respect to this testimony. The Court's conclusion is different with respect to Schlatman's opinion regarding warnings. In reaching this conclusion, Schlatman considered his acquired understanding of the average person's lack of awareness of certain types of fire hazards. Schlatman opines that, in his experience, most people fail to appreciate or understand the hazards associated with halogen lights due to their high operating temperature. The Court agrees with defendants that Schlatman
49

Kumho Tire, 526 U.S. at 150 (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 2004)). Farmland Mut. Ins. Co. v. AGCO Corp., 531 F. Supp. 2d 1301, 1304-05 (D. Kan. 2008).

50

25

performed his analysis in reverse--because there was a fire, he assumes plaintiff was insufficiently warned about the dangers of placing combustibles close to halogen lights. The issue in this case is whether defendants adequately warned plaintiff of the risks associated with the halogen lights, not the adequacy of the actual warning provided by the manufacturer. Accordingly, Schlatman's opinion with regard to warnings is neither reliable nor helpful to the jury. C. James Martin

Defendants also seek to exclude at trial the expert opinion testimony of James Martin, an electrical engineer designated by plaintiff as an expert witness. Martin's expert opinions may be summarized as follows. Martin first relied on his inspection of the on-site fire scene, which he toured with Schlatman. Martin examined the remains of three under cabinet mounted light fixtures recovered from the residence, which exhibited "extreme thermal damage." He also noted three similar light fixtures on the opposite side of the cabinet from the laundry appliances, which experienced only "slight discoloration. The mounting board containing these fixtures was removed from the underside of the wall cabinets and examined. Martin noted that these three fixtures were each mounted within a circular opening cut through the fiberboard and their supplying circuit conductors are routed along the top of the fiberboard under an applied layer of tape. He also noted two stick-on labels with printed graphics located on the topside of the fixtures that read "Caution: Risk of Fire." Martin then toured the basement, where he identified the source for the circuits supplying the lighting systems. The circuit fuse for under cabinet laundry lights was blown. 26

Martin also examined an exemplar light fixture that was a replicate of those installed in plaintiff's residence. The fixture, which was manufactured by Haefele America Company, came with instructions and printed stickers reading "Caution: Risk of Fire." Martin also noticed graphics imprinted on the front edge of the fixture's reflector that included a symbol indicating clearance from the fixture to combustibles of 5.9 inches. Martin reviewed the instruction sheet presented mounting requirements and a diagram for installation, and noted several statements of "special interest": B. When mounted in an enclosure, the recessed hole must pass completely through the mounting surface to allow ventilation. The maximum thickness of the mounting surface is 1" (25 mm). This fixture is suitable for use in alcove or under cabinet mounting application where there is at least one open side. This fixture shall additionally be spaced minimum 6" (15 cm) from any side surfaces and 12" (30.5 cm) from any surfaces below the fixture.

C.

Martin concluded that, considering the installation methods used at plaintiff's residence, the light fixtures were not installed in conformance with the requirements stated in paragraph "B," because the mounting board was attached to the underside of the wall cabinets instead of through a recessed hold passing through the mounting surface. In addition, although the light fixtures were mounted approximately 18" (46 cm) above the countertop, which provided the 12" clearance below the fixture as required by paragraph "C," Martin concluded that the remaining usable vertical clearance of only 6" is not appropriate for a kitchen countertop. Martin based this conclusion on "common knowledge" that many combustible items with heights more than 6" are often placed on kitchen countertops, including paper towels, cardboard cereal boxes, packaged 27

loaves of bread and sacks of groceries. Martin opines "[i]t is clear the lighting system designer did not consider the real world utilization of the kitchen countertops when the halogen light fixtures were specified." Martin noted that while touring the site, a Haefele representative present at the site examination made a comment indicating the Haefele transformers provide only an 11.5 volt output, which Martin interpreted as being critical of the 12 volt rated transformers used on the lighting system and an attempt to suggest the fire would not have occurred if an 11.5 volt rated transformer had been used. For this reason, Martin conducted an examination of the power supply system installed at plaintiff's residence. Although his results are inconclusive, Martin noted that when the voltage to the lamp is varied, when the lamps are operated at more than rated voltage, the amount of light and heat produced increases. Martin also opines that he was reasonably certain Haefele was aware of the restrictions placed on the operating voltages and temperatures for halogen lamps when it required their 11.5 volt rated transformer to be used with their halogen light fixtures. In consideration of these observations and findings, Martin concluded that the fire was the direct result of the misapplication of the low voltage halogen light fixtures. The concentrated thermal energy provided by the 20 watt halogen lamps was sufficient to initiate combustion of the bed linens temporarily placed on the countertop below the light fixtures. These particular light fixtures, when installed under the wall cabinets above the countertop surface with only some 18" of clearance below them, did not provide for the reasonable, usual and customary safe use of the countertop space below. To suggest otherwise exceeds the limits of common sense. Defendants argue that Martin is not qualified to testify and that his testimony is not sufficiently

28

reliable under the standards set forth in Daubert and Kumho Tire. Qualifications Defendants do not challenge Martin's educational background or competence to express opinions generally on matters of electrical engineering. The Court notes that Martin possesses a Bachelor of Science degree in electrical engineering and has an extensive track record in working, teaching and consulting in the field. Martin's professional experience includes the design of electrical and lighting systems in new and existing structures. He has completed more than 975 forensic engineering assignments and has received college-level instruction on the subject of fire science. Defendants object to Martin's qualifications to testify to the proper design of laundry room and kitchen lighting systems, the proper application of lights in laundry rooms and kitchens or warnings provided to homeowners. Although Martin has no professional experience as a kitchen designer or cabinet maker or assembler, the Court agrees with plaintiff that his area of expertise would include the design of electrical and lighting systems in new and existing structures. Martin has designed electrical systems, including lighting systems, in residential homes. He has specified lighting systems that include halogen lamps and has worked with electrical contractors on many occasions. He has served as an electrical consultant for a company that manufactures cabinets. He has on numerous occasions worked with kitchen designers in helping design residential electric systems, including illumination systems. He has specified light fixtures for under-cabinet lighting many times. Martin has read peer-review articles on the use of halogen lights and has lectured on the use of halogen lights. Because Martin is experienced in the electrical aspects of defendants' work and his knowledge of lighting 29

fixtures and electrical lighting systems as it relates to the issues in this case, he is qualified to offer opinions concerning the hazardous nature of the light fixture at issue, by virtue of his education and experience in the field of electrical engineering. Martin is also qualified to testify concerning the anticipated use of the countertop space under the halogen lights. Although he is not a "human factors" expert, his evaluation of the design project and safety of the light fixture would necessarily take into consideration the reasonably anticipated use of the fixture and surrounding space. Finally, although it does not appear that Martin intends to provide testimony on the issue of warnings, the Court agrees with defendants that he is not a warnings expert. Reliability Defendants argue that Martin's opinions regarding the design and misapplication of the halogen lights are not sufficiently reliable under the standards set forth in Daubert and Kumho Tire. As with Schlatman, defendants argue that Martin's testimony 1) is not based on sufficient facts or data, 2) is not the product of reliable principles and methodology, and 3) does not apply reliable principles and methods to the facts of the case. With respect to the first point, defendants point to Martin's deposition testimony, which they characterize as an admission that there are no facts or data supporting his opinion. In that testimony, Martin admits that his opinion is based on his common sense because homeowners will need more than six inches of safe, usable space in a laundry room setting such as plaintiff's. Defendants complain that Martin assumes combustibles can be no closer than twelve inches from a halogen light bulb without lighting, and then uses this assumption as a basis for his opinion that under-cabinet halogen lights should not be used because homeowners will stack laundry closer than twelve inches to the under-cabinet lighting, without any supporting facts or data. 30

Defendants also criticize Martin's opinion with regard to whether there was adequate ventilation in the space above the top of the halogen puck light because of the way the light was mounted. Martin admits the alleged improper mounting did not cause or contribute to the fire and that in order to know whether the alleged insufficient ventilation caused the halogen light to be higher, he would have to know the distance between the combustibles and the light, which he does not know. With respect to the second point, defendants argue that Martin's reports and deposition testimony are devoid of any information regarding the application of any particular principles or methodology in reaching his conclusions, and are thus the product of assumptions supported by other assumptions. Similarly, with respect to the third point, defendants argue that Martin conducted no research whatsoever in formulating his opinion that utilization of halogen lights in plaintiff's laundry room was unsafe and the lights were improperly installed. As with Schlatman, the Court does not view any of defendants' articulated deficiencies in testing and methodology sufficient to render Martin's opinion inadmissible with respect to the design and placement of the light fixture as hazardous. In this case, Martin's opinions are based on his education, training and experience. During his years of work as an electrical engineer, Martin has become familiar with the properties of halogen lights, as well as the risks associated with their use. Martin also relies on his professional experience in designing electrical and lighting systems for residential kitchens. The Court has reviewed Martin's affidavit, report and deposition, in which he explained the specific facts supporting his conclusion that the light fixture created an unreasonable fire hazard. In addition to inspecting the fire scene, Martin stated that he relied on his knowledge of the characteristics of halogen lights, including the high operating temperatures of the specific light used in plaintiff's kitchen and laundry room. Martin 31

further relied on the information he learned from reviewing the manufacturer's specifications, including the recommended safe clearance zone. As Martin explained in his report and deposition, the light fixture was positioned in such a way that normal use would include the placement of combustible items within that safe clearance zone, making it hazardous. In this case, "the relevant reliability concerns may focus upon personal knowledge or experience," rather than the Daubert factors and scientific foundations.51 Because his "method" does not involve application of any controversial scientific process or theory, the Daubert factors are of less utility.52 Martin's method is sufficiently reliable for purposes of Rule 702, and the Court denies defendants' motion with respect to this testimony. V. Discussion A. Negligent Design

Defendants claim plaintiff's negligence claims do not survive summary judgment because she is unable to establish the standard of care applicable to Kleweno, Cherie Brown and David Brown. Defendants argue that plaintiff does not have the required expert opinion establishing the standard of care for kitchen and laundry room designers and contractors or whether defendants deviated from said standards. Plaintiff counters that her negligent design claim is not a professional negligence claim, but rather, an "ordinary" negligence claim and thus expert testimony is not required. Alternatively, plaintiff argues that if expert testimony is required, James Martin is qualified to establish the standard of care for defendants.

51

Kumho Tire, 526 U.S. at 150 (quoted in Bitler v. A.O. Smith Corp., 400 F.3d 1227, 1235 (10th Cir. 2004)). Farmland Mut. Ins. Co. v. AGCO Corp., 531 F. Supp. 2d 1301, 1304-05 (D. Kan. 2008)

52

32

The Pretrial Order sets forth the elements of plaintiff's claims for negligent design against defendants Kleweno and Cherie Brown as follows: 1. Defendants owed Plaintiff a duty of care to use that degree of care and skill which would be used by a reasonable competent kitchen and laundry room designer providing similar services and acting in similar circumstances in the layout, design, drawing, specification, planning, installation, assembly and inspection of materials and services related to the custom kitchen remodel at Plaintiff's home. Defendants breached this duty As a result of Defendants' negligence, Plaintiff suffered damage to her real and personal property.53

2. 3.

Similarly, the negligent design claim against David Brown alleges: 1. Defendant owed Plaintiff a duty of care to use that degree of care and skill which would be used by a reasonable competent contractor providing similar services and acting in similar circumstances in the design, installation, assembly, specification, mounting and inspection of labor, materials and construction services related to the custom kitchen remodel at Plaintiff's home.54

Plaintiff argues that his negligence claims against defendants involve a "general" negligence standard rather than one that applies to professionals. The Court disagrees. As defendants point out, the language that plaintiff submitted as the essential element of her claims for negligent design incorporates the language used for a breach of a professional's duty of care

53

(Doc. 158 at 16-17) (emphasis added). Id. at 18.

54

33

and comes directly from the Kansas Pattern Instruction for professional negligence, which states: In performing professional services, (a) (an) ______________ has a duty to use that degree of care and skill which would be used by a reasonably competent _______________ providing similar services (in the same community or similar communities) and acting in similar circumstances.55 By contrast, the general negligence standard is lack of ordinary or reasonable care, and is the failure of a person to do something that an ordinary person would do or not do.56 Plaintiff clearly alleges defendants were negligent in that they failed to use the degree of care and skill used by a reasonable competent kitchen and laundry room designer and contractor. Clearly, plaintiff does not allege lack of ordinary care, but care involving the professional standards applicable to a kitchen designer or a contractor. Plaintiff's argument that kitchen remodeling is not a "profession" is disingenuous and contrary to the clear terms of the Pretrial Order, which are controlling.57 This conclusion leads to the next query: whether plaintiff must produce expert testimony to establish the standard of care necessary to establish a breach of such a duty? "Expert testimony is often required to establish the standard of care in cases involving professional actions and whether the professional deviated from the standard of care."58 "`The primary

55

PIK Civil 4th 123.70.

PIK Civil 4th 103.01; Hickert v. Wright, 319 P.2d 152 (1957) (negligence is the want of ordinary care and may consist of acts of omission as well as acts of commission).
57 Under Rule 16(e) of the Federal Rules of Civil Procedure, a pretrial order "may be modified `only to prevent manifest injustice.'" 58

56

Bi-State Dev. Co. v. Shafer, Kline & Warren, Inc., 990 P.2d 159, 162 (Kan. Ct. App. 1999) (citations

omitted).

34

purpose of expert testimony is to establish the community standards for the benefit of the trier of fact when the facts are somewhat alien in terminology and the technological complexities would preclude an ordinary trier of fact from rendering an intelligent judgment.'"59 "The common knowledge exception applies where a layperson's common knowledge is sufficient to recognize a deviation from the accepted standard of care." Plaintiff argues that the standard of care is defined by law, in that there is implied in every contract for work or services a duty to perform it "skillfully, carefully diligently, and in a workmanlike manner." That standard, however, relates to a claim for implied warranty of workmanlike performance.60 As explained above, plaintiff chose to bring her claim against defendants for professional negligence, not breach of an implied warranty of workmanlike performance, and the duty to perform services in a workmanlike manner has no application to that claim.61 Next, plaintiff argues that due to the nature of the misconduct alleged, the jury is capable of deciding if defendants have breached their respective duties of care. Specifically, plaintiff contends that Cherie Brown was negligent in specifying the halogen light fixture in a residential application for which it was not safe and that David Brown was negligent in installing the light fixture because he knew or should have known that the use of the light

In re Estate of Maxedon, 946 P.2d 104, 111 (Kan. Ct. App. 1997) (quoting Juhnke v. Evangelical Lutheran Good Samaritan Soc'y, 634 P.2d 1132, 1137 (Kan. 1981)).
60

59

See Zenda Grain & Supply Co. v. Farmland Indus., Inc., 894 P.2d 881, 890-91 (Kan. Ct. App. 1995).

Id. (quoting Tamarac Dev. Co. v. Delamater, Freund & Assocs., 675 P.2d 361, 365 (Kan. 1984)) (holding a party injured by work performed by an architect may chose his remedy from express contract, implied warranty or negligence).

61

35

fixture in the location specified by Cherie Brown created an unreasonable risk of fire, but did not warn plaintiff. Plaintiff contends that due to the "self-evident" nature of the misconduct alleged, the jury will not need an expert to help them decide if defendants breached their respective duties of care. The Court disagrees. "Whether expert testimony is necessary to prove negligence is dependent on whether, under the facts of a particular case, the trier of fact would be able to understand, absent expert testimony, the nature of the standard of care required of defendant and the alleged deviation from that standard."62 "Expert testimony is often required to establish the standard of care in cases involving professional actions and whether the professional deviated from the standard of care."63 "`The primary purpose of expert testimony is to establish the community standards for the benefit of the trier of fact when the facts are somewhat alien in terminology and the technological complexities would preclude an ordinary trier of fact from rendering an intelligent judgment.'"64 "The common knowledge exception applies where a layperson's common knowledge is sufficient to recognize a deviation from the accepted standard of care."65 Examples of ap