Wells et al v. Howard Berger Company, Inc. et al
Filing
234
OPINION AND ORDER: (1) 179 Motion for Summary Judgment re pain and suffering is DENIED. (2) 180 Motion for Summary Judgment re punitive damages is GRANTED. (3) 181 Motion in Limine re the malfunction theory is DENIED. (4) Plas' 182 Motion for Summary Judgment is DENIED. (5) Parties shall confer re availability for trial and submit proposed trial dates to the Court NLT 7/11/2014. Signed by Judge William O. Bertelsman on 7/2/2014. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON
CIVIL ACTION NO. 2012-190 B WOB
SHEILA WELLS, as Executrix
of the Estate of
CHARLES WELLS, ET AL.
VS.
PLAINTIFFS
OPINION AND ORDER
HOWARD BERGER COMPANY, INC., ET AL.
DEFENDANTS
This matter is before the Court on Defendants’ motion for summary
judgment regarding pain and suffering (Doc. 179), Defendants’ motion for
summary judgment regarding punitive damages (Doc. 180), Defendants’ motion
in limine regarding the malfunction theory (Doc. 181), and Plaintiffs’
motion for summary judgment (Doc. 182).
The Court held oral argument by telephone conference call on these
motions
on
Monday,
June
30,
2014.
Dale
Golden
attended
for
the
Plaintiffs, and Michael Casey and Guy Hughes attended for the Defendants.
Official Court Reporter Joan Averdick recorded the proceedings.
Having conducted oral argument and reviewed the parties’ briefs, the
Court issues the following Opinion and Order.
Analysis
A.
Pain and Suffering
Summary judgment for the Defendants on the issue of pain and
suffering is improper.
record
from
conscious
which
prior
to
a
Plaintiffs have identified evidence in the
jury
his
could
death
reasonably
and
infer
therefore
the
decedent
experienced
pain
was
and
suffering.
See Vitale v. Henchey, 24 S.W.3d 651, 659 (Ky. 2000);
Spaulding v. Tate, No. 3:11-18-DCR, 2012 WL 3845411 (E.D. Ky. 2012).
Although Defendants did not move to strike the expert testimony
of Plaintiffs’ pain and suffering expert, Dr. Shraberg, or the lay
testimony of fire chief, Jim Kanavy, or fire investigator, Kevin Dunn,
Defendants contend the testimony is barred by Federal Rule of Evidence
702 and/or 701.
The Court finds the testimony of Plaintiffs’ expert,
Dr. Shraberg, to be admissible under Federal Rule of Evidence 702, and
the lay testimony of Kanavy and Dunn to be admissible under Federal
Rule of Evidence 701.
A jury may make its own reasonable inferences
about the credibility and reliability of such testimony.
B.
Punitive Damages
Summary judgment for the Defendants on the issue of punitive
damages is appropriate.
KRS 411.184 allows recovery for punitive
damages if Plaintiffs prove Defendants acted toward the Plaintiffs
with oppression, fraud or malice.
Kentucky common law allows for
recovery of punitive damages where gross negligence, defined as wanton
or
reckless
disregard
for
the
safety
of
other
persons,
Williams v. Wilson, 972 S.W.2d 260, 262-265 (Ky. 1998).
is
shown.
Plaintiffs
argue their evidence withstands summary judgment as to the latter
standard.
However, Plaintiffs have failed to identify any record evidence
of Defendants’ gross negligence.
Plaintiffs have not pointed to any
record evidence of a pattern of fires caused by the subject space
heater or Defendants’ knowledge of other fires being caused by the
subject space heater.
Therefore, summary judgment for Defendants on
the issue of punitive damages is appropriate.
C.
Malfunction Theory
In their motion in limine, Defendants argue Plaintiffs may not
rely upon the “malfunction theory,” or circumstantial evidence of a
product
defect,
because
Plaintiffs’
electrical
engineering
expert,
Beth Anderson, has opined that the cause of the defect of the space
heater at issue was its crimp connector.
Kentucky law does not limit Plaintiffs to a single theory of
recovery
when
evidence,
each
liability.
and
the
they
of
has
multiple
which
could
valid
theories
establish
the
supported
by
Defendants’
the
sole
Therefore, Anderson’s testimony about the crimp connector
res
ipsa
loquitur
testimony
conflict and are admissible.
of
fire
chief
Kanavy
do
not
See Siegel v. Dynamic Cooking Sys.,
Inc., 501 Fed. App’x 397 (6th Cir. 2012); Kentucky Farm Bureau Mutual
Ins. Co. v. Broan-NuTone, LLC, No. 1:11cv-66-JHM, 2013 WL 5740107
(W.D. Ky. 2013).
D.
Plaintiffs’ Motion for Summary Judgment
Plaintiffs fail to meet their burden of proof on their summary
judgment motion. When a plaintiff is the moving party for summary
judgment, the burden is high:
When the movant is a plaintiff he must ordinary do more
than defeat the opposing party’s affirmative defenses in
order to obtain a final [rather than partial] judgment.
Since, in addition to asserting an affirmative defense, the
defendant
will
likely
have
denied
the
plaintiff’s
allegations, the plaintiff must also establish all of the
essential elements of his claim.
Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986) (internal
quotations and citations omitted).
and
issues
Plaintiffs
of
have
credibility
not
met
for
their
There remain many disputed facts
the
jury
burden,
to
and
resolve.
summary
As
such,
judgment
is
improper.
Therefore, the Court having heard oral argument, and the Court
being sufficiently advised,
IT IS ORDERED:
(1)
Defendants’ motion for summary judgment regarding pain and
suffering (Doc. 179) is DENIED;
(2)
Defendants’ motion for summary judgment regarding punitive
damages (Doc. 180) is GRANTED;
(3)
Defendants’
motion
in
limine
regarding
the
malfunction
theory (Doc. 181) is DENIED;
(4)
Plaintiffs’ motion for summary judgment is DENIED; and
(5)
The parties shall confer regarding availability for trial
and submit proposed trial dates to the Court no later than
Friday, July 11.
This 2nd day of July, 2014.
TIC: 38 mins.
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