Red Hed Oil, Inc. et al v. The H.T. Hackney Co. et al

Filing 37

MEMORANDUM OPINION & ORDER: (1) GRANTING dfts' Logic, Spark, R.J. Reynolds & Fontem's 18 19 20 & 34 MOTIONS for Joinder of dft Swisher's Motion to Dismiss; (2) GRANTING Swisher's 12 MOTION to Dismiss for failure t o state a claim; (3) all claims against Swisher International, Inc., Logic Technology Development LLC, Spark Industries LLC, R.J. Reynolds Vapor Company & Fontem Ventures B.V. are DISMISSED; (4) plas request for oral argument is DENIED. Signed by Judge Joseph M. Hood on 11/15/17.(KJR)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON

RED HED OIL, INC., doing
business as REDI MART NO. 9,
et al.

)
)
)
)
)
)
)
)
)
)
)
)

Plaintiffs,
v.
THE H.T. HACKNEY CO., et al.,
Defendants.

Civil Case No.
5:17-cv-180-JMH
MEMORANDUM OPINION
& ORDER

***
I.

INTRODUCTION

Sometimes things go awry and we know not why.

Many times, we

have an inkling about what happened, but we cannot place our finger
on it.

And still other times, we can narrow the possibilities of

what caused our misfortune to only a few options.

A teacher

finding gum on the floor, for example, can discern that one of his
students must be responsible – even if he does not know which
particular student is at fault.

And a hunter in the woods struck

by a pellet when several friends fire upon a covey of quail flushed
from the thicket knows a co-hunter is to blame – though he might
not know which person had the errant aim.
This case presents a similar “whodunit”: Plaintiffs think one
of several possible manufacturers is responsible their injury, but

1 

Plaintiffs cannot say exactly which Defendant should pay or exactly
how Defendants caused the harm.

Instead, Plaintiffs point the

finger at several Defendants in hopes that discovery will unveil
the culpable party.

The question for this Court is whether, when

only one Defendant could have caused the injury complained of,
Plaintiffs may pass the pleading stage and access discovery without
identifying which Defendant is responsible and without specifying
how the defendant’s products harmed Plaintiffs.
that Plaintiffs may not do so.

The Court holds

Thus, for the reasons stated

herein, the defendants’ Motion to Dismiss [DE 12] is GRANTED.
II.

FACTUAL AND PROCEDURAL HISTORY

Like many consumer products, electronic cigarettes have a
shelf life.

After a certain amount of time, they go bad.

when they go bad, e-cigarettes can no longer be used.

And

So when Red

Hed Oil, Inc. (“Red Hed”) failed to sell the stash of e-cigarettes
in its convenience store before they expired, the company placed
the out-of-date products in a storage room.
21].

[DE 1-1 at p. 9, ¶¶19-

Defendant The H.T. Hackney Co. (“Hackney”) – the company

that sold the e-cigarettes to Red Hed – picked up expired ecigarettes on a bi-weekly basis. [Id., ¶20].
But this time, before Hackney arrived for the pick-up, the
out-of-date e-cigarettes went up in smoke.

[Id., ¶21].

A fire

tore through Red Hed’s convenience store and caused more than a
2 

quarter-million dollars in damage.

[DE 1-1 at p. 10, ¶30].

Red

Hed seeks recovery from the e-cigarette manufacturers in this
products liability action.
Red Hed owns and operates the convenience store and gas
station in Berea, Kentucky.
Federated

Mutual

Insurance

commercial policy on the store.

[Id. at p. 5, ¶2].
Company

Plaintiff

(“Federated”)

[Id. at p. 9, ¶¶27-28].

holds

a

Known as

“Redi-Mart,” the store sold, among other products, e-cigarettes.
[Id. at pp. 6-9]. Red Hed purchased the e-cigarettes from Hackney,
a distributor and supplier of grocery products.
p. 8, ¶17].

[Id. at p. 5, ¶4;

The manufacturing defendants – Swisher International,

Inc. (“Swisher”), Logic Technology Development LLC (“Logic”),
Spark Industries LLC (“Spark”), R.J. Reynolds Vapor Company (“R.J.
Reynolds”),

NJoy

Inc.

(“NJoy”),

and

Fontem

Ventures

B.V.

(“Fontem”) – produced e-cigarettes and supplied them to Hackney.
[Id. at p. 8, ¶14].
Hed.

Hackney then sold the e-cigarettes to Red

[Id., ¶17].
As part of its sale to Red Hed, Hackney agreed to pick up

expired e-cigarettes on a bi-weekly basis.

[Id. at p. 9, ¶20].

Red Hed placed the e-cigarettes in a box that Hackney collected;
Hackney did not provide any additional instructions.

[Id., ¶19].

Red Hed claims it was never involved in delivery of the ecigarettes to the Redi-Mart and did not tamper with or alter the

3 

products.

[Id. at p. 9, ¶¶22-23].

The manufacturing defendants

sold their products to Hackney, and Hackney sent the e-cigarettes
to the Redi-Mart.

The manufacturing defendants did not directly

sell e-cigarettes to Red Hed.
The fire at issue in this case occurred in late April 2016 at
the Berea Redi-Mart.

[Id. at p. 9, ¶21].

The blaze damaged Red

Hed’s building, equipment, and land, resulting in $258,353.42 in
insurance payments by Federated to Red Hed.

[Id. at p. 10, ¶30].

Red Hed argues that expired e-cigarettes, sitting in the storage
room awaiting pickup from Hackney, were defective and sparked the
fire.

[Id. at p. 9, ¶21].

The claimed defect in the e-cigarettes

existed at the time of manufacture and was undiscoverable by Red
Hed, according to Plaintiffs’ Complaint.

[Id. at p. 9, ¶25].

Red Hed and Federated filed this products liability lawsuit
in March 2017 in Madison County Circuit Court against Hackney and
the manufacturing defendants.
from

the

manufacturing

[DE 1-1].

defendants

on

Red Hed seeks recovery
state-law

claims

of

negligence, defective manufacture and design, inadequate warning,
breach of express warranty, and breach of implied warranties. [Id.
at pp. 16-22].

Red Hed asserted similar claims against Hackney.

[Id. at pp. 10-14].
Defendants Hackney and Spark filed answers in state court.
[DE 1-1 at pp. 25, 39].

Defendant Logic removed the case to
4 

federal court in April 2017 on the basis of diversity jurisdiction
pursuant to 28 U.S.C. §§ 1441 and 1332.

[DE 1-1].

and Logic filed answers shortly after removal.

R.J. Reynolds

[DE 8; 9].

Before

it answered, Swisher filed a Motion to Dismiss pursuant to Fed. R.
Civ. P. 12(b)(6) on May 1, 2017.

[DE 12].

After Swisher’s motion,

NJoy notified the Court that it filed for Chapter 11 bankruptcy,
and the Court stayed this mater as to NJoy only.

[DE 16].

Defendants R.J. Reynolds, Logic, and Spark then filed motions
pursuant to Fed. R. Civ. P. 10(c) to incorporate Swisher’s Motion
to Dismiss.

[DE 18; 19; 20].

Because R.J. Reynolds, Logic, and

Spark had already filed answers, however, they could not move under
Rule 12(b)(6) and instead sought judgment on the pleadings pursuant
to Fed. R. Civ. P. 12(c), which applies the same standard of review
as Rule 12(b)(6).

Plaintiffs did not oppose any of the joinder

motions.
Defendants

argue

that

Plaintiffs’

Complaint

does

not

adequately plead that any Defendant’s product caused the fire or
that any product had a defect.

[DE 12 at p. 4-8].

Indeed,

according to Defendants, Plaintiffs can only speculate about the
cause of the fire, and they can only speculate that some ecigarette was defective.
Plaintiffs responded to Defendants’ Motion to Dismiss [DE
25], and Swisher replied [DE 26].

5 

Spark, R.J. Reynolds, and Logic

all moved pursuant to Fed. R. Civ. P. 10(c) to incorporate, join
in, and adopt Swisher’s reply to Plaintiffs’ response.
28; 29].

[DE 27;

Defendant Fontem then moved under Rule 10(c) to join

Swisher’s Motion to Dismiss.

[DE 34].

oppose Defendants’ joinder motions.

Again, Plaintiffs did not
Defendant Hackney has not

joined any motion before the Court and is thus not affected by
this Memorandum Opinion and Order.
Thus, the present motion before the Court asks for dismissal
for failure to state a claim as to Defendants Swisher and Fontem
and judgment on the pleadings as to Defendants R.J. Reynolds,
Spark, and Logic. Plaintiffs have asked for oral argument pursuant
to Local Rule 7.1(f).

These matters are fully briefed and ripe

for the Court’s review.
III. STANDARD OF REVIEW
As an initial matter, the parties dispute what standard
applies to Defendants’ motion.

Plaintiffs urge the Court to apply

the

standard

state

“notice

pleading”

Complaint in state court.

[DE 25].

because

they

filed

the

According to Plaintiffs, this

Court “does not apply the federal pleading standard” when sitting
in diversity jurisdiction.
“Kentucky
‘central

is

purpose

a
of

[DE 25 at p. 2].

notice

pleading

pleadings

jurisdiction,

remains

notice

of

where

the

claims

and

defenses.’” Pete v. Anderson, 413 S.W.3d 291, 301 (Ky. 2013)
6 

(quoting Hoke v. Cullinan, 914 S.W.2d 335, 339 (Ky. 1995)). “Notice
pleading” imposes a less-demanding review of a complaint than the
“plausibility” standard under the federal rules.

See Williams v.

Altman McGuire, McClelland & Crum, P.S.C., No. Civ. 12-131-ART,
2013 WL 28378, at *3 (E.D. Ky. Jan. 2, 2013).

Thus, if Kentucky

law applies, Plaintiffs must meet only the “notice pleading”
requirements.

But if federal law applies, Plaintiffs must satisfy

the higher “plausibility” standard.
In support of their argument that this Court must apply state
pleading standards, Plaintiffs cite two cases in this district.
See Combs v. ICG Hazard, LLC, 934 F. Supp. 2d 915 (E.D. Ky. 2013);
In re Darvocet, Darvon and Propoxyphene Prods. Liab. Litig., 889
F. Supp. 2d 931 (E.D. Ky. 2012).
fraudulent

joinder

analysis,

Plaintiffs’ argument.

These cases, however, involve a
and

provide

no

support

for

There, the courts used state pleading

standards to determine whether the plaintiffs joined a non-diverse
defendant simply to keep the case out of federal court.

Under a

fraudulent joinder analysis, the test is “whether a reasonable
basis exists for predicting that the plaintiff’s claims against
the non-diverse defendant could succeed under state law.”
934 F. Supp. 2d at 923.

Combs,

Where a claim survives state pleading

standards, it necessarily means the plaintiff did not join the
defendant only to defeat diversity; indeed, the plaintiff has a
viable claim under state pleading rules.
7 

Thus, “[i]t makes little

sense to measure the state-law viability of such claims . . . by
federal pleading standards.”

Id.

And although state pleading

standards govern a fraudulent joinder analysis, they do not apply
generally to diversity actions.
Federal courts sitting in diversity apply federal procedural
law.

Hanna v. Plumer, 380 U.S. 460, 465 (1965). State substantive

law governs the claims asserted.

Erie R. Co. v. Tompkins, 304

U.S. 64 (1938); Moore, Owen, Thomas & Co. v. Coffey, 992 F.2d 1439
(6th Cir. 1993).

Accordingly, federal procedural law and Kentucky

substantive products liability law applies to this action.
The Federal Rules of Civil Procedure “apply to a civil action
after it is removed from a state court.”

Fed. R. Civ. P. 81(c)(1);

see also Granny Goose Foods, Inc. v. Brotherhood of Teamsters and
Auto Truck Drivers Local No. 70 of Alameda Cnty., 415 U.S. 423,
438 (1974) (“The Federal Rules of Civil Procedure, like other
provisions of federal law, govern the mode of proceedings in
federal

court

specifically

after

rejected

removal.”).
Red

Hed’s

standards apply in removed cases.

Indeed,
argument

this

that

Circuit

state

has

pleading

Armstrong v. Shirvell, 596 F.

App’x 433, 444 (6th Cir. 2015) (“In diversity cases, including
those removed from state court, the federal pleading standards
apply.”); Wilkey v. Hull, 366 F. App’x 634, 637 (6th Cir. 2010)
(applying federal pleading standard in diversity case).

8 

Thus,

this Court rejects Plaintiffs’ argument and will apply the federal
pleading standards.
A complaint in federal court must contain “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”

Fed. R. Civ. P. 8(a)(2).

A motion to dismiss under Fed.

R. Civ. P. 12(b)(6) tests the sufficiency of the plaintiff’s
complaint.

The Court views the complaint in the light most

favorable to the plaintiff and must accept as true all well-pleaded
factual allegations contained within it.

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)).

All reasonable inferences are drawn in

favor of the plaintiffs.
537 (6th Cir. 2015).
well-pleaded

factual

conclusions as true.

See Coley v. Lucas Cnty., 799 F.3d 530,

Although a court must accept as true all
allegations,

they

need

not

accept

legal

Twombly, 550 U.S. at 555.

“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to
relief that is plausible on its face.’”

Iqbal, 556 U.S. at 678

(citing Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that a defendant is liable for the
misconduct alleged.” Id.

The “factual allegations must be enough

to raise a right to relief above the speculative level.” Twombly,
550 U.S. at 555.

Rule 8 “does not require ‘detailed factual
9 

allegations,’ but it demands more than an unadorned, the defendantunlawfully-harmed-me accusation.”
Twombly, 550 U.S. at 555)).

Iqbal, 556 U.S. at 678 (quoting

A “formulaic recitation of the

elements of a cause of action will not do.” Twombly, 550 U.S. at
555.

The complaint must contain either “’direct or inferential

allegations

respecting

all

material

recovery under a viable legal theory.’”

elements

necessary

for

D’Ambrosio v. Marino, 747

F.3d 378, 383 (6th Cir. 2014) (quoting Philadelphia Indem. Ins.
Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013)).
Where a complaint does not state facts sufficient to state a claim,
the claims must be dismissed.

Twombly, 555 U.S. at 570.

A motion for judgment on the pleadings pursuant to Fed. R.
Civ. P. 12(c) is reviewed under the same standard as a motion to
dismiss under 12(b)(6).

Coley, 799 F.3d at 536-37; see also

Florida Power Corp. v. FirstEnergy Corp., 810 F.3d 996, 999 (6th
Cir. 2015).
IV.
The

manufacturing

ANALYSIS

defendants

seek

dismissal

of

all

of

Plaintiffs’ claims: (1) negligence; (2) defective manufacture and
design; (3) inadequate warning; (4) breach of express warranty;
and (5) breach of implied warranties.

[DE 1-1 at pp. 16-22].

Although Plaintiffs combine manufacturing defect and design defect
into one category, the Court notes these are separate causes of

10 

action in Kentucky.

See, e.g., CertainTeed Corp. v. Dexter, 330

S.W.3d 64, 79 (Ky. 2010).

Defendants argue that each claim fails

for the same reason: Plaintiffs fail to plead facts making it
plausible that any Defendant caused injury to Plaintiffs.
at p. 4].

[DE 12

In addition, Defendants argue the Court should dismiss

(1) Plaintiffs’ defect claims because Plaintiffs never allege any
particular defect and (2) Plaintiffs’ breach of warranty claims
because Plaintiffs have not alleged they were in privity with
Defendants.

[DE 12].

A. Products Liability Overview
Under Kentucky law, “product liability actions are governed
by the Kentucky Product Liability Act (“KPLA”).” Prather v. Abbot
Labs., 960 F. Supp. 2d 700, 705 (W.D. Ky. 2013).

The KPLA governs

“all damage claims arising from the use of products, regardless of
the legal theory advanced.” Mitchell v. Actavis Pharms., 185 F.
Supp. 3d 971, 974 (W.D. Ky. 2016) (quoting Monsanto Co. v. Reed,
950 S.W.2d 811, 814 (Ky. 1997)); Vaughn v. Konecranes, Inc., No.
5:14-136-DCR, 2015 WL 1719672, at *2 (E.D. Ky. Apr. 15, 2015) (“In
Kentucky, product liability actions are governed by the Kentucky
Product Liability Act”).

The Act applies “regardless of whether

the action is founded on strict liability in tort, negligence or
breach of warranty.”

Monsanto, 950 S.W.2d at 814.

11 

In a products liability case, “[a] plaintiff may advance three
different causes of action against a manufacturer: (1) strict
liability, (2) negligence, and (3) breach of warranty.” Prather,
960 F. Supp. 2d at 705 (citing Williams v. Fulmer, 695 S.W.2d 411,
413 (Ky. 1985)). In addition, “Kentucky law recognizes three
theories

of

products

liability:

(i)

defective

defective manufacture, and (iii) failure to warn.”

design,

(ii)

Vaughn, 2015

WL 1719672, at *2 (citing Clark v. Hauck Mfg. Co., 910 S.W.2d 247,
251 (Ky. 1995) overruled on other grounds by Martin v. Ohio Cnty.
Hosp. Corp., 295 S.W.3d 104 (Ky. 2009)).

Plaintiffs may allege

multiple theories of products liability.

Clark, 910 S.W.2d at

250.
B. Causation
Regardless of the theory a plaintiff pursues, he must show
causation in a products liability case.

Morris v. Wyeth Inc., No.

1:07-CV-176-R, 2008 WL 2677046, at *2 (W.D. Ky. June 30, 2008)
(“defendant’s product must have caused Plaintiff’s injury to be
liable under Kentucky . . . law.”); see also Vaughn, 2015 WL
1719672, at *2 (“a plaintiff must prove the existence of a defect,
and legal causation.”) (internal citations omitted); C & S Fuel,
Inc. v. Clark Equip. Co., 524 F. Supp. 949, 954 (E.D. Ky. 1981)
(“products liability claims . . . have one common denominator: the
plaintiff must establish that the product was the factual and legal

12 

cause of the harm.”); Holbrook v. Rose, 458 S.W.2d 155, 157 (Ky.
1970)

(“the

product

must

be

the

legal

cause

of

the

harm”).

Causation exists as a “threshold requirement of any productsliability claim,” and it requires plaintiffs to “assert that the
defendant’s product” is responsible for the injury.

Smith v.

Wyeth, Inc., 657 F.3d 420, 423 (6th Cir. 2011). To prove causation
in Kentucky the “plaintiff has the burden . . . to establish
causation under the substantial factor test — that is, plaintiff
must prove that defendant’s conduct was a substantial factor in
bringing about a plaintiff’s harm.”

King v. Ford Motor Co., 209

F.3d 886, 893 (6th Cir. 2000); Burgett v. Troy-Bilt LLC, 970 F.
Supp. 2d 676, 681 (E.D. Ky. 2013) (“the defect must have been a
substantial factor in bringing about the plaintiff’s harm — in
other words, a legal cause of his injury.”).

The causation

analysis is “the same under a negligence theory in a products
liability case as . . . under a strict liability theory.”

Halsey

v. Agco Corp., No. 16-cv-461-JMH, 2017 WL 4767679, at *1 (E.D. Ky.
Oct. 20, 2017) (citing Jones v. Hutchinson Mfg., Inc., 502 S.W.2d
66, 69-70 (Ky. 1973)).
Where, as here, the case sits at the pleading stage, the
plaintiff need not prove his claims, but must make specific factual
allegations that, if true, state a plausible claim for relief.
Twombly, 550 U.S. at 570.

Pleading requirements apply to products

13 

liability cases in federal court.

See Hetteburg v. Standard

Homeopathic Co., No. 2:11-158-DCR, 2012 WL 2683125, at *3 (E.D.
Ky. July 6, 2012) (ruling that in products liability case the
plaintiff must “plead factual allegations from which the Court can
reasonably infer the defendants’ liability).

In addition, the

complaint must contain facts for “all material elements necessary
for recovery.”

D’Ambrosio, 747 F.3d at 383.

Because causation is

a threshold requirement for products liability cases in Kentucky,
the plaintiffs bear the burden of pleading facts that make it
plausible that the manufacturing defendants caused the harm.

“The

mere fact that someone believes something to be true” in a products
case “does not create a plausible inference that it is true.”

In

re Darvocet, Darvon & Propoxyphene Prods. Liab. Litig., 756 F.3d
917, 931 (6th Cir. 2014).
Although Plaintiffs’ argument focuses on meeting the Kentucky
“notice-pleading” standard (which, as noted above, does not apply
here),

they

alternatively

state

that

the

Complaint

contains

sufficient factual allegations to plead causation plausibly.
25 at p. 5].
Defendant

was

[DE

First, Plaintiffs explain that each manufacturing
in

the

e-cigarette

business

and

had

products

distributed by Hackney for sale in Red Hed’s convenience store.
[DE 1-1 at p. 8, ¶14].

Second, Plaintiffs’ Complaint states Red

Hed placed expired e-cigarettes in a box for pickup by Hackney.

14 

[Id.

at

p.

9,

¶19].

Next,

Plaintiffs

state

that

the

fire

originated in the storage room “due to a defect in the electronic
cigarettes and/or because of improper design of the electronic
cigarettes.”
direct

and

[Id., ¶21].
proximate

The Complaint further alleges: “As a

result

of

the

electronic

cigarettes

as

manufactured, designed, sold, supplied and introduced into the
stream of commerce by Defendants, Plaintiffs suffered damages as
described herein.”

[DE 1-1 at p. 19, ¶77].

This, Plaintiffs

argue, satisfies the pleading standard for causation. Plaintiffs
also

argue

that

the

“elements

of

the

causes

of

action

and

consequent injury to Plaintiffs are pled expressly against each
manufacturer.”

[DE 25 at p. 5].

Taken together, these allegations do not give rise to a
reasonable inference that the manufacturing defendants caused
Plaintiffs’ harm.

See Iqbal, 556 U.S. at 678.

The plaintiffs do

not tell us which manufacturer produced the defective e-cigarettes
that caused the inferno.

They do not tell us how the fire started,

other than to generally state that e-cigarettes cause fires.
Plaintiffs

simply

recite

“caused” the fire.
cause

of

action

legal

that

the

products

Inserting Defendants’ names into formulaic

language

does

standards.

15 

conclusions

not

satisfy

federal

pleading

Even

assuming

the

plaintiffs

adequately

pled

that

every

manufacturing Defendant had defective e-cigarettes in the storage
room at the time of the fire, the plaintiffs have not met the
causation requirement.

Unless every Defendant manufacturer sold

defective e-cigarettes that combusted at precisely the same time
– an allegation Plaintiffs never make – they cannot all be liable.
Only one e-cigarette could have caused the fire.

Plaintiffs do

not tell us who; they simply sue a range of Defendants they suspect
could be responsible.

Indeed, nothing in the Complaint states

that any particular defendant had defective products that caused
the fire.

Given that only one defective e-cigarette (and thus

only one manufacturer) could be responsible for igniting the fire,
every manufacturing Defendant cannot be liable.

Is a defective

Swisher e-cigarette is the cause? What about one from NJoy?
Fontem?
tell us.

Logic?

Spark?

We do not know because Plaintiffs never

Instead, Plaintiffs just sue them all.

It is, of course, possible that a defective e-cigarette from
any of the manufacturing defendants caused the Redi-Mart fire.
But a “complaint that allows the court to infer only a ‘mere
possibility of misconduct,’ is insufficient to ‘show’ that the
complainant is entitled to relief and fails to meet the pleading
requirements of Rule 8.”

Patterson v. Novartis Pharms. Corp., 451

F. Appx 495, 497 (6th Cir. 2011) (quoting Iqbal, 556 U.S. at 679).

16 

In Patterson, the Sixth Circuit affirmed the District Court’s
dismissal of the plaintiff’s complaint because she could not trace
her injury to a specific manufacturer as required by Massachusetts
law.

Id. Instead, the plaintiff alleged that one of two different

types of drugs could have caused the harm.

Id.

The Court held

that this did not meet the plausibility standard in federal court.
Similarly, here, causation is a threshold requirement under
Kentucky law and plaintiffs must assert that “defendant’s product
. . . injured the plaintiff.”
original).

Smith, 657 F.3d at 423 (emphasis in

Where a complaint names multiple defendants when only

one could be responsible it “allows the court to infer only a mere
possibility”

that

a

particular

defendant

caused

the

harm.

Patterson, 451 F. App’x at 497. And where a plaintiff cannot plead
factual allegations as to which manufacturer caused the harm, the
Court may dismiss the complaint for failure to state a claim.

See

In re Darvocet, Darvon and Propoxypphene Prods. Liab. Litig., 856
F. Supp. 2d 904, 909 (E.D. Ky. 2012) (granting a motion to dismiss
where plaintiffs did not know which company produced the drug they
ingested that caused the harm).

Here, Plaintiffs cannot – and do

not – plead that any defendant’s product caused the harm.

They do

not link any manufacturer to the allegedly defective e-cigarette
that

caused

the

fire.

Instead,

17 

they

group

together

every

conceivable possibility.

This does not make Plaintiffs’ claims

plausible.
The Complaint also fails to adequately plead how the fire
started.

Other than vaguely asserting that e-cigarettes spark

fires, Plaintiffs fail to provide factual allegations that these
e-cigarettes did, in fact, cause this fire. Plaintiffs blame it on
a defect, but they do not specify what defect, which product was
defective,

or

how

the

defect

sparked

the

fire.

In

short,

Plaintiffs present an “unadorned, the defendant-unlawfully-harmed
me accusation” that does not give rise to a plausible claim for
relief. Iqbal, 556 U.S. at 678. Plaintiffs’ claim that Defendants
generally caused the fire amounts to a “formulaic recitation of
the cause of action” that does not suffice.

Twombly, 550 U.S. at

555.
Red Hed and Federated argue that Plaintiffs “are not required
at this stage to prove the facts regarding the particular defect
of the Swisher cigarettes, or how the fire started.”
6].

[DE 25 at p.

The Court agrees and does not ask Plaintiffs for proof.

Court

merely

asks

Plaintiffs

for

facts

that

would

The

create

a

reasonable basis for the inference that Defendants are liable.
Iqbal,

556

U.S.

at

678.

Plaintiffs

speculate

that

some

e-

cigarettes were in the store at the time (though they do not
specify

which

manufacturer’s

brand),

18 

that

some

defective

e-

cigarettes were in the storage room (though they do not say how
many or which ones were defective), that some defect caused the
fire (though they do not say what type of defect), and that some
manufacturer is responsible (though they do not say which one).
In other words, Plaintiffs suspect that one of the manufacturing
defendants must have caused the fire.
speculate,

but

speculation

requirements in federal court.

does

Maybe so.

not

satisfy

Plaintiffs can
the

Twombly, 550 U.S. at 555.

pleading
Indeed,

the factual allegations must “raise a right to relief above the
speculative level.´ Id. (emphasis added).
(i)

Concert of

Action

Red Hed attempts to remedy the pleading defect by invoking a
doctrine that allows plaintiffs to sue multiple defendants even if
only one defendant caused the harm.
act in concert with one another.

This occurs where defendants

See Farmer v. City of Newport,

748 S.W.2d 162 (Ky. Ct. App. 1988). In Farmer, the Court quoted
the Restatement in adopting “concert of action” as a viable method
of imposing liability:
For harm resulting to a third person from the tortious
conduct of another, one is subject to liability if he
(a) does a tortious act in concert with the other or
pursuant to a common design with him, or (b) knows that
the other's conduct constitutes a breach of duty and
19 

gives substantial assistance or encouragement to the
other so to conduct himself, or (c) gives substantial
assistance to the other in accomplishing a tortious
result

and

his

own

conduct

separately

considered,

constitutes a breach of duty to the third person.
Id. at 164 (quoting Restatement (Second) of Torts, § 876).
Thus, in Kentucky, a “plaintiff in a product liability action
could maintain a claim based on concert of action if they proved
the manufacturers acted tortuously, pursuant to a

common design,

or rendered substantial assistance to others to accomplish a
tortious act.”

Peoples Bank of N. Ky., Inc. v. Crowe Chizek and

Co. LLC, 277 S.W.3d 255, 261 (Ky. Ct. App. 2008).

When a plaintiff

makes this showing, “the burden shifts to Defendants to prove they
are not responsible” for the injury.

Brown v. Arch Wood Prot.,

Inc., No. 13-61-HRW, 2017 WL 4274160, at *8 (E.D. Ky. Sept. 26,
2017).

This

allows

a

plaintiff

to

“bypass

the

causation

requirement if he can prove that the defendants acted tortuously
pursuant to an agreement or common design or that they rendered
substantial assistance to others to accomplish a tortious act.”
Id.
To maintain a concert of action claim in a products liability
case,

the

plaintiff

must

defendants acted in tandem.

allege

facts

showing

how

See Smith v. Univar USA, Inc., NO 1220 

specific

134-ART, 2013 WL 1136624, at *5 (E.D. Ky. Mar. 18, 2013).

This

requires three steps: (1) the plaintiff identify the product
causing the harm; (2) the plaintiff must establish that the
defendants cooperated or acted with concerted effort; and (3) the
plaintiff must prove defendants contravened a particular standard
of care.

Eastridge v. Goodrich Corp., No. 3:12CV862-S, 2014 WL

4916236, at *3 (W.D. Ky. Sept. 30, 2014). “Allegations of mere
parallel activity of two or more defendants, without more, are
insufficient to prove defendants acted by cooperative or concerted
activities under the concert of action theory.” Brown, 2017 WL
4274160, at *8.
facts

A plaintiff must point to specific evidence or

“suggesting

an

agreement

or

common

design

between

the

defendants.” Id.
Red Hed argues that the manufacturing defendants acted “in
concert with the other or pursuant to a common design.”
p. 8].

[DE 25 at

Plaintiffs argue this is adequately pled in paragraph

sixty-nine of the Complaint, but that section does not allege that
the

defendants

“cooperated

or

acted

Eastridge, 2014 WL 4916236, at *3.

with

concerted

effort.”

The plaintiffs do not allege

that the defendants collaborated or gave substantial assistance to
one another to achieve a tortious result.
at 164.

See Farmer, 748 S.W.2d

Plaintiffs do allege that each manufacturing Defendant

acted tortuously in similar ways, but “mere parallel activity” is

21 

“insufficient to prove defendants acted . . . under the concert of
action theory.”

Brown, 2017 WL 4274160, at *8.

The plaintiffs

must allege more facts to suggest an agreement or common design
among

the

defendants;

Red

Hed

has

suggesting such an agreement here.

failed

to

plead

anything

See id.

Put simply, this case does not fall under Farmer.

There, the

plaintiffs made claims against nearly 100 mattress manufacturers
when plaintiffs did not know which manufacturer had produced the
defective mattress that caused a fire.

Farmer, S.W.2d at 163.

But in that case, the plaintiffs “alleged in their complaint that
the manufacturers . . . acted in concert with each other through
the

National

Association

of

Bedding

Manufacturers

.

.

.

to

purposely withhold form public consumers information regarding the
dangerous nature of mattresses.”

Id. at 164. In short, in Farmer,

plaintiffs

defendants

alleged

facts

that

acted

cooperatively

through an organization to commit a tortious act.

See id.

No

such allegations are made here, and nothing in the Complaint
suggests as much.
tortuously
concert,

does

and

no

Assertions that one of several defendants acted
not

mean

specific

suggestion plausible.

the

defendants

factual

allegations

tortuously
make

any

in

such

Accordingly, Plaintiffs have not adequately

pled concert of action.

22 

acted

Finally, Plaintiffs cannot rely on “alternative liability” to
bypass adequately pleading causation.

This theory, which shifts

the burden to defendants when plaintiffs name multiple defendants
and only one could be responsible for the harm, is not accepted in
Kentucky. See Dawson v. Bristol Labs., 1988 WL 123929 (W.D. Ky.
Nov. 3, 1988); In re Beverly Hills Fire Litig., 639 F. Supp. 915,
921

(E.D.

Ky.

1986)(describing

alternative

liability

as

when

“defendants whose particular products cannot be directly linked to
the injury” are held responsible and ruling “[t]his notion was
expressly rejected in Kentucky”); Cox v. Cooper, 510 S.W.2d 530,
534 (Ky. 1974) (“the practical result of” allowing plaintiffs to
point to several defendants knowing one is guilty and leaving it
to them to sort out “is to shift the burden to defendants, and
that is wrong”). Thus, a plaintiff cannot circumvent the causation
requirement

by

suing

multiple

defendants

since

liability claims require a showing of causation.

all

product

And because

Plaintiffs have failed to adequately plead causation, they have
failed to state a claim entitling them to relief.
C. Defective Design and Defective Manufacture
Even if Plaintiffs satisfactorily pled the causation element,
they have failed to point to any defect in the products that would
entitle them to relief.

In Kentucky, “to impose liability upon a

manufacturer for an allegedly defective product, it must be shown

23 

that

the

product
to

dangerous

is

user

the

‘in
or

a

defective

condition

consumer.’”

Estate

unreasonably

of

Bingham

v.

DaimlerChrysler Corp., 462 F. Supp. 2d 766, 771 (E.D. Ky. 2006)
(quoting Morales v. Am. Honda Motor Co., 151 F.3d 500,506 (6th
Cir. 1998)).

“In a design defect case, Kentucky courts employ a

risk-utility test to ‘assess decisions made by manufacturers with
respect to the design of their products.’”
2d at 712.

Prather, 960 F. Supp.

The plaintiff must also show that the product was

designed as the defendant intended, but that there is a feasible
alternative design.

See Burke v. U-Haul In’l, Inc., 501 F. Supp.

2d 930, 933 (W.D. Ky. 2007) (citing Toyota Motor Corp. v. Gregory,
136 S.W.3d 35, 42 (Ky. 2004)).
A manufacturing defect involves a product “in a defective
condition

because

it

was

not

manufactured

accordance with its specifications.”

or

assembled

in

Greene v. B.F. Goodrich

Avionics Sys., 409 F.3d 784, 788 (6th Cir. 2005).

This occurs

where there is a “deviation from the product’s design that creates
an unreasonable risk of harm.”
S.W.3d 674, 682 (Ky. Ct.

Wright v. Gen. Elec. Co., 242

App. 2007).

Where “plaintiffs do not assert any facts to support [their]
allegations” in a defect case, they cannot survive a motion to
dismiss.

See Bosch v. Bayer Healthcare Pharms. Inc., 13 F. Supp.

3d 730 (W.D. Ky. 2014).

In Bosch, the Court dismissed a products

24 

liability claim where plaintiffs failed to allege how defendant’s
products were defective.
enough

for

Plaintiffs

to

Id.

The Court held that it “is not

simply

rely

on

their

basic

injury

allegations and argue that the product was somehow defective
because it was ‘dangerous.’”

Id. at 742.

Plaintiffs could not

meet the federal pleading standard, the Court ruled, where they
merely claimed a defect, without providing specifics on how the
product was defective.

Id.

Similarly, the Court in Burkeen v. A.R.E. Accessories, LLC,
No. 5:16-CV-00017, 2017 WL 3176285 (W.D. Ky. July 26, 2017)
dismissed a products liability claim where the plaintiff failed to
state how the defendant’s product was designed or manufactured
improperly.

There, the Court held that the plaintiff could not

gain access to discovery where she “by rote lists the elements of
each cause of action in the Amended Complaint.”
3176285, at *5.

Burkeen, 2017 WL

These “legal conclusions and bare recitation of

the elements of the claims asserted” must be supported by facts to
survive a 12(b)(6) motion.

See id.

Without more, the plaintiff

has failed to plead a plausible claim or relief.
Here, the plaintiffs suffer the same problem as the plaintiffs
did in Burkeen and Bosch: they fail to explain how the e-cigarettes
were defective.

The plaintiffs argue the Complaint does state

that the products were defective.

25 

True enough, but nothing

explains how.

The plaintiffs do not allege an alternative design,

how the products deviated from the intended design, how the ecigarettes were assembled wrong, or how the e-cigarettes fail the
risk-utility test.

Plaintiffs cannot rely on general assertions

that the e-cigarettes were dangerous; they must make at least some
factual allegations as to how. Bosch, 13 F. Supp. 3d at 744.
have not done so.
of

factual

They

Like in Burkeen and Bosch, “[d]ue to the lack

allegations”

the

plaintiffs

have

adequate facts supporting the defect claim.

failed

to

plead

Bosch, 13 F. Supp. 2d

at 744.
D. Breach of Warranty
Finally, the breach of warranty claims fail for an additional
reason: the plaintiffs were admittedly not in privity with the
manufacturing defendants.

Under Kentucky law, a plaintiff must be

in privity with a defendant to state a breach of warranty claim.
See Taylor v. Southwire Tools & Equip., 130 F. Supp. 3d 1017, 1021
(E.D. Ky. 2015) (“Kentucky requires privity of contract or a direct
buyer-seller relationship for breach of warranty claims”); Real
Estate Mkt., Inc. v. Franz, 885 S.W.2d 921, 926 (Ky. 1994); Brown
Sprinkler Corp. v. Plumbers Supply Co., 265 S.W.3d 237, 240 (Ky.
Ct. App. 2007) (“privity of contract between the parties is
prerequisite to a clam for breach of warranty.”).
applies to products liability actions.

26 

This rule

Taylor, 120 F. Supp. 3d

1017 (applying privity requirement to products liability action);
Compex Int’l Co, Ltd. V. Taylor, 209 S.W.3d 462, 464 (Ky. 2006)
(“privity remains a prerequisite for products liability claims
based on warranty”).
Here, Plaintiffs agree that “privity is an element of the
cause of action.”

[DE 25 at p. 12].

And they agree that Red Hed

purchased the e-cigarettes from Hackney, not the manufacturing
defendants. [Id.]. Thus, Red Hed and the manufacturing defendants
were not in privity.

Plaintiffs do not plead that they were in

privity. And because privity is an element of a breach of warranty
claim, failing to plead privity means the plaintiffs have not
adequately stated a claim for relief.
V.

CONCLUSION

In sum, Plaintiffs hope to access discovery by reciting the
elements of a cause of action and inserting Defendants’ names.
They believe – have an inkling – that one of the defendants is
responsible, but they cannot say who, and they cannot say how.
Plaintiffs sued them all.

This they cannot do.

So

The burden of

pleading sufficient facts to state a plausible claim for relief
rests with the plaintiffs.

And entry through the courthouse doors

is not granted simply because a plaintiff is suspicious that
manufacturers’ products are responsible.

Because the plaintiffs

have failed to adequately plead sufficient facts to demonstrate
27 

causation, the existence of a defect, or privity, they have failed
to state a products liability claim under Kentucky Law.
Accordingly, IT IS ORDERED as follows:
(1)

Defendants
motions

for

Logic,

Spark,

joinder

of

R.J.

Reynolds,

Defendant

and

Swisher’s

Fontem’s
Motion

to

Dismiss [DE 18; 19; 20; 34] are GRANTED;
(2)

Defendant Swisher’s Motion to Dismiss for failure to state
a claim [DE 12] is GRANTED;

(3)

All

claims

against

Swisher

International,

Inc.,

Logic

Technology Development LLC, Spark Industries LLC, R.J.
Reynolds

Vapor

Company,

and

Fontem

Ventures

B.V.

are

DISMISSED;
(4)

Plaintiffs request for oral argument pursuant to Local Rule
7(f) is DENIED.

This the 14th day of November, 2017.

28