Dow v. Rheem Manufacturing Company et al

Filing 227

ORDER denying 220 Motion for Reconsideration ; denying 221 Motion for Reconsideration. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LOWREN DOW,
Plaintiff,
Case Number 09-13697-BC
v.
RHEEM MANUFACTURING COMPANY,
ROBERTSHAW CONTROLS COMPANY,
INVENSYS CONTROL SYSTEMS,
Defendants,
_______________________________________/
MICHIGAN FARM BUREAU GENERAL
INSURANCE,
Plaintiff,
v.

Case Number 10-10753-BC
Honorable Thomas L. Ludington

RHEEM MANUFACTURING COMPANY,
ROBERTSHAW CONTROLS COMPANY,
INVENSYS CONTROL SYSTEMS,
Defendants.
______________________________________ /
OPINION AND ORDER DENYING
PLAINTIFFS’ MOTIONS FOR RECONSIDERATION
In this products liability suit, the Court excluded the testimony of the plaintiffs’ expert
witness addressing causation. Because the plaintiffs have no evidence of causation, the Court
further concluded, the defendants are entitled to judgment.

The plaintiffs now move for

reconsideration of those two decisions. The expert acknowledges that any testing of his theory
of causation “would be meaningless” because of the presence of too many uncontrolled
variables. He also acknowledges that he found no physical evidence supporting his theory of

causation. Consequently, the Court again concludes that the testimony should be excluded and
the defendants are entitled to judgment.
Plaintiff Lowren Dow was seriously injured when a water heater exploded. He alleges
that the water heater’s pilot safety control valve, designed to cut off the flow of propane gas
when the pilot goes out, was defectively designed or manufactured. The control valve contains a
spring-loaded magnet. If the control valve operates properly, when the pilot is extinguished, the
magnet presses a rubber seal, or gasket, against a metal seat that surrounds a gas inlet. When the
gasket presses against the seat, the inlet is sealed and the flow of gas is cut off.
The parties agree that something caused the gasket to dislodge — they disagree about
what that cause was. The plaintiffs allege that a design or manufacturing defect caused the
gasket to stick to the metal seat, causing it to dislodge from the safety magnet. The defendants
contend that the misuse of the gas regulator led to over-pressurization, which caused the gasket
to dislodge.
Whatever the cause, the parties agree that when Dow attempted to light the pilot, an
explosion left him with burns over 98 percent of his body. The house sustained more than one
hundred thousand dollars in damages as well.

Dow filed suit against the water heater

manufacturer, Defendant Rheem Manufacturing Company, and the control valve manufacturers,
Defendants Robertshaw Controls Company and Invensys Control Systems (in case number 0913697).

Five months later, Plaintiff Michigan Farm Bureau General Insurance filed a

subrogation action alleging similar claims against the same Defendants (in case number 1010753). The cases were consolidated in July 2010.

-2-

The parties then engaged in a vigorous motions practice. In less than three months,
twenty-eight motions were filed in case number 09–13697 and thirteen motions were filed in
case number 10–10753. Among these motions, Defendants moved to exclude the testimony of
Plaintiffs’ experts, Alan Kasner, William Woehrle, and Timothy Dunn, and to strike their expert
reports. Defendants also moved for summary judgment. On September 26, 2011, the Court
granted Defendants’ motions to exclude the experts’ testimony and granted Defendants’ motions
for summary judgment.

Dow v. Rheem Mfg., 86 Fed. R. Evid. Serv. 881, 2011 WL

4484001(E.D. Mich. Sept. 26, 2011).
Plaintiffs now move for reconsideration of the decision to grant the motion to exclude
Kasner’s testimony and grant Defendants’ motions for summary judgment. ECF Nos. 220, 221.
Plaintiffs first assert that the Court erred in excluding Kasner’s testimony. The Court
incorrectly focused on Kasner’s conclusion, Plaintiffs argue, rather than Kasner’s methodology.
Plaintiffs’ argument is unpersuasive. As the Court explained in its previous opinion and order,
Kasner’s testimony was excluded not because of the conclusion, but because the testimony was
not the product of reliable principles and methods. Kasner hypothesized that the gasket was
dislodged because it stuck to the metal seat. He found no physical evidence supporting his
hypothesis. He did not test his hypothesis either, explaining that because of unknown variables
any testing of his theory “would be meaningless.” Kasner Dep. 40:15, Oct. 8, 2010, attached as
Defs.’ Mot. Summ. J. Ex. 4; see also Pls.’ First Mot. for Reconsideration 15, ECF No. 220
(acknowledging that “any such tests would be essentially meaningless — there are too many
uncontrolled variables”).

Kasner thus offered an untested hypothesis (indeed, by his own

account, an untestable hypothesis) with no physical evidence to support it. Kasner did not offer

-3-

an opinion based on the scientific method, but speculation. See Daubert v. Merrell Dow Pharm.,
Inc., 509 U.S. 579, 592–93 (1993).

His testimony is inadmissible under Federal Rule of

Evidence 702, and Plaintiffs’ motion for reconsideration on this issue will be denied.
Plaintiffs next assert that the Court erred in granting Defendants summary judgment
because “there is direct evidence that this safety valve was defective — the gasket undisputedly
had come off. There was circumstantial evidence of a defect simply from the fact that this safety
device failed to operate in the manner intended — the gas leaked.” Pls.’ Second Mot. for
Reconsideration 11, ECF No. 221. This argument is likewise unpersuasive. As the Court
explained in its previous opinion and order, “the Supreme Court of Michigan has repeatedly
noted that manufacturers and sellers are not insurers, and they are not absolutely liable for any
and all injuries sustained from the use of their products.” Dow v. Rheem Mfg., 86 Fed. R. Evid.
Serv. 881, 2011 WL 4484001, at *16 (E.D. Mich. Sept. 26, 2011) (internal alterations omitted)
(quoting TIG Ins. Co. v. Carrier Corp., No. 216793, 2000 Mich. App. LEXIS 2179, at *6 (Mich.
Ct. App. 2000)). Rather, “Plaintiffs must prove ‘a causal connection’ between their alleged
defect theory and the resultant explosion.” Dow, 2011 WL 4484001, at *15 (quoting Wendorf v.
JLG Indus., 683 F. Supp. 2d 537, 548 (E.D. Mich. 2010)). Here, Plaintiffs offered no evidence
establishing a causal connection. Plaintiffs have not identified any physical evidence, testing, or
expert literature that demonstrates that the Robertshaw gas control valve malfunctioned in the
manner Kasner suggests. Rather, they rely solely on Kasner’s hypothesis that the gasket could
adhere to the seat under unspecified conditions.

Kasner’s testimony, however, has been

excluded for the reasons discussed above. Defendants are entitled to judgment. Plaintiffs’
motion for reconsideration of the grant of summary judgment will be denied.

-4-

I
Dow rented the single-family residence at 2020 Cat Lake Road in Mayville, Michigan,
from his grandfather, William Harmon.

Dow’s girlfriend, Stephanie Brooks, lived at the

residence as well. The homeowner’s insurance policy, issued by Michigan Farm Bureau General
Insurance, identified Harmon as the insured.
A
The water heater was located in the basement of the residence. Harmon purchased the
water heater on April 7, 2006, at Self Serve Lumber in Caro, Michigan. The water heater was a
40 gallon 34,000 BTU Richmond Integra propane fired water heater bearing Model No: 6G4034PF and Serial No: RMLP10055-11946. Its date code specified that it was manufactured in
Mexico sometime in October 2005. The water heater was designed, manufactured, sold, and
supplied by Rheem and was originally equipped with a Robertshaw control valve Model No:
220RLPTSPC, bearing a manufacturing date code of 05-40 made sometime between October 9
and October 14, 2005, in Mexico.
On August 7, 2006, Rheem supplied Harmon with a replacement water heater control
valve to replace the original control valve which was allegedly not working. The replacement
control valve was a Robertshaw Model No: 220RLPTSP-C, made in Mexico, and bearing a
manufacturing date code specifying that it was manufactured sometime between July 9th and
July 15, 2006.
Dow arrived home after work on July 16, 2007, and noticed that the hot water in the
shower was not working. He went to the basement to light the water heater’s pilot. On

-5-

attempting to light it, there was an explosion causing significant personal injury to Dow and
damage to the residence.
When the explosion occurred on July 16, 2007, the sight glass covering the pilot light had
been broken out. Defendants contend that the sight glass was broken in order for someone to use
a butane lighter rather than the piezoelectric igniter attached to the gas control valve. The water
heater had previously been connected to a large propane tank, but had been connected to a
smaller tank in the yard as of the day of the explosion. The electric igniter provided for igniting
the pilot light was also not attached, but there was no physical evidence demonstrating that it
became detached as a result of the explosion. Plaintiffs have not clarified certain facts of the
case, which include who installed the water heater, who resided at the house, who called
Rheem’s customer service to inquire as to a replacement valve, how the water heater pilot light
was re-lit, or which propane tank the water heater was connected to prior to the explosion.
B
The Robertshaw control valve at issue incorporates a spring-loaded “safety magnet”
located in the inlet chamber that is designed to stop the flow of gas in the event of a pilot outage.
When the pilot is extinguished, the charge to an electromagnet is interrupted and the safety
magnet closes. In the closed position, a nitrile rubber seal, or gasket, on the end of the safety
magnet presses against an inlet opening, stopping the flow of gas through the opening.
The gasket is attached to the safety magnet with a metal retainer button. Both sides of the
gasket are coated with a powdered lubricant, molybdenum disulfide. The rubber gasket stretches
over the retainer button and fits into a groove beneath it. In order for the gasket to dislodge

-6-

during use, it would be necessary to apply a force to it that is greater than the retaining force
created by the button.
The parties agree that the gasket in this case dislodged from the safety magnet,
preventing the magnet from properly closing when the pilot went out. The contested issue is
what caused the gasket to dislodge from the safety magnet. Plaintiffs contend that a design or
manufacturing defect caused the gasket to dislodge, causing it to stick to the metal seat.
Defendants contend that the misuse of the gas regulator resulted in over-pressurization, causing
the gasket to dislodge.
II
Eastern District of Michigan Local Rule 7.1(h) permits any party to move for
reconsideration of the Court’s conclusions within fourteen days of the entry of the order. E.D.
Mich. L.R. 7.1(h)(1). A motion for reconsideration must identify a palpable defect in the
decision, not simply reiterate an argument that the Court has previously rejected:
Generally, and without restricting the court’s discretion, the court will not grant
motions for rehearing or reconsideration that merely present the same issues ruled
upon by the court, either expressly or by reasonable implication. The movant
must not only demonstrate a palpable defect by which the court and the parties
and other persons entitled to be heard on the motion have been misled but also
show that correcting the defect will result in a different disposition of the case.
Id. “A palpable defect is a defect that is obvious, clear, unmistakable, manifest or plain.”
Scozzari v. City of Clare, 723 F. Supp. 2d 974, 981–82 (E.D. Mich. 2010) (citation and quotation
marks omitted). Not addressing an issue constitutes a waiver or abandonment of the argument.
Sault St. Marie Tribe of Chippewa Indians v. Engler, 146 F.3d 367, 374 (6th Cir. 1998).
Federal Rule of Civil Procedure 59(e) confers discretion on the court to alter or amend a
judgment under limited circumstances, including because of an intervening change in the
-7-

controlling law, not previously available evidence, or the necessity to correct a clear error of law
or prevent manifest injustice. Nagle Indus., Inc. v. Ford Motor Co., 175 F.R.D. 251, 254 (E.D.
Mich.1997) (citation omitted). Like motions brought pursuant to Local Rule 7.1(h), motions
brought pursuant to Rule 59(e) “are not intended as a vehicle to relitigate previously considered
issues . . . and are not the proper vehicle to attempt to obtain a reversal of a judgment by offering
the same arguments previously presented.” Id. (citation and internal quotations omitted).
Under Federal Rule of Civil Procedure 60(b), a motion for relief from judgment can be
granted for several reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable diligence, could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic), misrepresentation, or
misconduct by an opposing party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged; it is based on an earlier
judgment that has been reversed or vacated; or applying it prospectively is no longer
equitable; or
(6) any other reason that justifies relief.
Id.

To be corrected under Rule 60(b)(1), a mistake of law by the court must involve a

fundamental misconception of law or a conflict with a clear statutory mandate. See Cacevic v.
City of Hazel Park, 226 F.3d 483, 490 (6th Cir. 2000). Although courts have some discretion in
granting relief from judgment pursuant to Rule 60(b), that power is limited by the public policy
favoring finality of judgments. See Blue Diamond Coal Co. v. Trs. of the UMWA Combined
Benefit Fund, 249 F.3d 519, 524 (6th Cir. 2001). This is “especially true in an application of
subsection (6) of Rule 60(b), which applies only in exceptional or extraordinary circumstances
which are not addressed by the first five numbered clauses of the Rule.” Id.

-8-

In this case, Plaintiffs’ motions cite Local Rule 7.1(h) and Federal Rules of Civil
Procedure 59(e) and 60. Consistent with their vigorous motions practice, Plaintiffs move for
reconsideration in two separate motions. The first requests reconsideration of the decision to
exclude Kasner’s testimony.

The second requests reconsideration of the decision granting

Defendants summary judgment.
III
A
Plaintiffs first move for reconsideration of the decision to exclude Kasner’s testimony.
The Court erred, Plaintiffs assert, in focusing on his conclusions rather than his methodology.
Plaintiffs explain that Kasner’s methodology involved two discrete observations.

First, he

“performed a test on an exemplar safety valve” and “was able to detach the gasket from the valve
with as little force as 1.8 ounces.” Pls.’ First Mot. for Reconsideration 9 (“Pls.’ First Mot.”).
Second, he looked at the gasket at issue and noted that the lubricant was worn away on one side.
Specifically, Kasner “could visually observe” that “on the front side there were distinct areas
where the lubricant was worn away . . . . Those markings did not appear on the back side of the
gasket, which sat inside the flange, where the gray coating appeared more uniform.” Id. at 10–
11.
Based on his observations, and his knowledge that that rubber can stick to metal surfaces,
“Kasner offered his conclusion that the most plausible explanation for how this gasket came to
be dislodge[d] is that the last time the safety valve was in a closed position, and was then pressed
to open, the uncoated parts of the nitrile gasket stuck to the metal seat so that as the valve
descended the adhesion force exceeded 1.8 ounces and peeled the gasket off.” Id. at 13.

-9-

Plaintiffs acknowledge, however, that Kasner “has not shown by any testing of these
valves that this adhesion of the gasket to the seat can exceed the slight force required to dislodge
the gasket.” Id. at 14. Plaintiffs write: “Dr. Kasner explained why any such tests would be
essentially meaningless — there are too many uncontrolled variables to try to duplicate precisely
the conditions that existed inside this particular unit at this particular moment in time when
something caused the gasket to come off.” Id. at 15.
Plaintiffs also acknowledge that Kasner found no physical evidence supporting his
hypothesis. In his deposition, for example, Kasner was asked:
Q: Is there any physical evidence present on the seat or on the rubber seal that
shows that adhesion did occur in this case, and pulled the rubber seal off?
Any physical evidence that shows that —
A: I don’t think you can see any physical evidence of that —
Q: Okay.
A: — short of doing, you know, the actual testing.
Q: All right. And, again, you have not done the first test that shows this rubber
seal adhering [to] the seat in the valve and [being] pulled off. You have not
done one test that shows that. Is that correct sir?
A: Because I don’t know the exact conditions. The leveling of contamination,
the contact force, et cetera, et cetera.
Q: I understand there are things you don’t know, and because of that you have
not tested your hypothesis with a test of a Robertshaw valve and a Robershaw
seal to demonstrate adhesion; correct?
A: The test would be meaningless, again, because you cannot duplicate the exact
conditions.
Kasner Dep. 39:18–40:16, Oct. 8, 2010, attached as Defs.’ Mot. Summ. J. Ex. 4.
The admissibility of expert testimony is governed by the Federal Rules of Evidence.
Rule 702 provides:
A witness who is qualified as an expert by knowledge, skill, experience, training,
or education may testify in the form of an opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
-10-

(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702.

“The adjective ‘scientific,’ ” the Supreme Court explains, “implies a

grounding in the methods and procedures of science. Similarly, the word ‘knowledge’ connotes
more than subjective belief or unsupported speculation.” Daubert v. Merrell Dow Pharm., Inc.,
509 U.S. 579, 590 (1993).
Consequently, the trial court must make a “preliminary assessment of whether the
reasoning or methodology underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue.” Id. at 592–93. In
Daubert, the Court provided several factors for trial judges to consider in making this
assessment:
These include whether the theory or technique in question “can be (and has been)
tested,” whether it “has been subjected to peer review and publication,” whether it
has a “known or potential rate of error,” and whether the theory or technique
enjoys “general acceptance” in the “relevant scientific community.”
Newell Rubbermaid, Inc. v. Raymond Corp., --- F.3d ----, 2012 WL 1080745, at *4 (6th Cir.
2012) (internal citation omitted) (quoting Daubert, 509 U.S. at 593–94). The Sixth Circuit notes:
Red flags that caution against certifying an expert include reliance on anecdotal
evidence, improper extrapolation, failure to consider other possible causes, lack of
testing, and subjectivity. In addition, if a purported expert’s opinion was prepared
solely for litigation, that may also be considered as a basis for exclusion.
Newell Rubbermaid, 2012 WL 1080745, at *4 (internal citation omitted) (citing Best v. Lowe’s
Home Ctrs., Inc., 563 F.3d 171, 177 (6th Cir. 2009); Johnson v. Manitowoc Boom Trucks, Inc.,
484 F.3d 426, 434 (6th Cir. 2007)).

-11-

The key inquiry is whether the reasoning is the product of the scientific method — if the
opinion does not reliably apply the principles and methods of scientific explanation to the facts
of the case, it will not typically be helpful to the jury:
Ordinarily, a key question to be answered in determining whether a theory or
technique is scientific knowledge that will assist the trier of fact will be whether it
can be (and has been) tested. Scientific methodology today is based on generating
hypotheses and testing them to see if they can be falsified; indeed, this
methodology is what distinguishes science from other fields of human inquiry.
Daubert, 509 U.S. at 593 (internal quotation marks omitted) (quoting Michael Green, Expert
Witnesses and Sufficiency of Evidence in Toxic Substances Litigation: The Legacy of Agent
Orange and Bendectin Litigation, 86 Nw. U. L. Rev. 643, 645 (1992)).
Here, as noted, Plaintiffs expressly acknowledge that Kasner has no physical evidence
supporting his theory and, moreover, that any testing of Kasner’s theory “would be essentially
meaningless.” Pls.’ First Mot. 15. Thus, Plaintiffs implicitly acknowledge Kasner did not offer
an opinion based on the scientific method, but speculation.
To elaborate, Kasner offered his opinion based on two observations. First, he observed
that a gasket could be dislodged with 1.8 ounces of force. Second, he observed that the lubricant
on the gasket at issue in this case was worn away on one side. Noting that this would make the
gasket more likely to stick, Kasner speculated that it was possible that sufficient adhesion forces
acted on the gasket to dislodge it from the safety magnet. He did not attempt to test this
hypothesis on a model. He did not attempt to determine if there were any set of conditions in an
exemplar that could generate sufficient adhesion force to cause a gasket to stick. He did not find
any physical evidence showing that the gasket had actually stuck. And he concedes any testing

-12-

of his theory “would be essentially meaningless” because of too many uncontrolled variables.
Id. Thus, the Court concludes that his testimony must be excluded.
First, Kasner’s theory is not based on sufficient facts or data: he cannot intelligently
opine on whether even the stickiest of conditions inside the valve would create sufficient
adhesion force to validate his theory. And he has no physical evidence suggesting that his
hypothesis is correct. Thus, as a matter of both theory and fact, his testimony is “essentially
meaningless.”
Second, Kasner’s theory is not the product of the scientific method. As the Supreme
Court observes, “Scientific methodology today is based on generating hypotheses and testing
them to see if they can be falsified.” Daubert, 509 U.S. at 593; see id. (“[T]he criterion of the
scientific status of a theory is its falsifiability, or refutability, or testability.” (quoting Karl
Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 (5th ed. 1989)).
Kasner develops a hypothesis, but does not attempt to test its validity. Rather, he concedes that
any testing of his theory would be essentially meaningless.
Third, Kasner’s theory relies on improper extrapolation.
observations.

From these, he extrapolates to a conclusion.

He begins with two

Specifically, because of his

observation that he was “able to detach the gasket from the valve with as little force as 1.8
ounces,” which isn’t very much, Kasner concludes “the most plausible explanation for how this
gasket came to be dislodge[d] is that . . . the uncoated parts of the nitrile gasket stuck to the metal
seat so that as the valve descended the adhesion force exceeded 1.8 ounces and peeled the gasket
off.” Pls.’ First Mot. 9, 13. Kasner employs no scientific methodology to go from observation to
conclusion. In fact, he concedes that he is unable to — because of too many uncontrolled

-13-

variables, he did not even attempt to test his theory. See id. at 15 (conceding that “any such tests
would be essentially meaningless — there are too many uncontrolled variables”).
Finally, Kasner’s opinion was prepared solely for litigation, another red flag recently
identified by the Sixth Circuit. Newell Rubbermaid, 2012 WL 1080745, at *4.
In sum, Kasner’s testimony does not reliably apply the principles and methods of
scientific explanation to the facts of the case, it would not be helpful to the jury. Plaintiffs’
motion for reconsideration of the order excluding Kasner’s testimony will be denied.
B
Next, Plaintiffs move for reconsideration of the Court’s grant of summary judgment to
Defendants. Plaintiffs write: “The Court incorrectly believed that the claimed defect pled by
Plaintiff was adhesion which allowed a rubber gasket to stick, thereby, causing a leak to occur
resulting in the explosion when it was not. A review of the pleadings reveals that Plaintiff’s
claim of defect was the inability to seal.” Pls.’ Second Mot. for Reconsideration 1, ECF No.
221.

Making a strict liability argument, Plaintiffs write that the product defect that they

identified is that the gasket could become dislodged under any set of circumstances:
Defendants are liable for injuries caused by this defect even if this gasket to come
off the valve [sic] for Plaintiff is unable to precisely discover what was the
underlying condition which manifested the defect. . . .
[T]here is direct evidence that this safety valve was defective — the gasket
undisputedly had come off. There was circumstantial evidence of a defect simply
from the fact that this safety device failed to operate in the manner intended —
the gas leaked. . . .
The testimony of Plaintiff’s polymer expert, Dr. Alan Kasner, stricken by this
Honorable Court, would have provided additional evidence that this product was
unsafe by demonstrating how little force was required to detach this gasket from
the safety valve and by Defendants’ failure to take sufficient precautions against
the gasket sticking to the metal seat and being stripped off when the valve was
-14-

depressed, but even absent that testimony the fact that the gasket . . . came off is
itself circumstantial evidence that it was not reasonably safe.
Defendants’ design and manufacture of the unit was unsafe, as Plaintiff’s other
experts have indicated, simply because, regardless of the precise underlying
precipitating event, the design and manufacture of this product allowed it to fail,
when it should not fail.
Id. at 7, 11, 13 (paragraph break supplied). Plaintiffs’ arguments are unpersuasive.
As the Court noted in its previous opinion and order, Michigan does not impose strict
liability on product manufacturers. The Michigan Supreme Court “has repeatedly noted that
manufacturers and sellers are not insurers, and they are not absolutely liable for any and all
injuries sustained from the use of their products.” Dow v. Rheem Mfg., 86 Fed. R. Evid. Serv.
881, 2011 WL 4484001, at *16 (E.D. Mich. Sept. 26, 2011) (quoting TIG Ins. Co. v. Carrier
Corp., No. 216793, 2000 Mich. App. LEXIS 2179, at *6 (Mich. Ct. App. 2000)).
Instead, “to prevail on their product liability negligence, express warranty, and implied
warranty claims, Plaintiffs must prove ‘a causal connection’ between their alleged defect theory
and the resultant explosion.” Dow, 2011 WL 4484001, at *15 (quoting Wendorf v. JLG Indus.,
683 F. Supp. 2d 537, 548 (E.D. Mich. 2010)). As Defendants correctly observe, “the Michigan
Supreme Court has made clear that the Michigan Product Liability Statute applies to ‘any and
every products liability action . . . regardless of whether it is labeled a possible unified action, a
possible negligence action, or a possible implied warranty action.’ ” Defs.’ Resp. to Pls.’ Second
Mot. 1 (quoting In re Certified Questions from United States Court of Appeals for the Sixth
Circuit, 331 N.W.2d 456, 462 (Mich. 1982)).”
For these types of cases, the Michigan Supreme Court instructs that “the plaintiff’s
evidence is sufficient if it establishes a logical sequence of cause and effect, notwithstanding the

-15-

existence of other plausible theories, although other plausible theories may also have evidentiary
support.” Skinner v. Square D Co., 516 N.W.2d 475, 478 (Mich. 1994) (internal quotation marks
omitted) (quoting Mulholland v. DEC Int’l, 443 N.W.2d 340, 349 (Mich. 1989)).
The court cautions, however, that if a party’s theory of causation is challenged, the party
must come forward with evidence supporting its theory to avoid the entry of summary judgment:
Once a party is challenged as to the existence of the facts upon which he purports
to build his case, the sum and substance of the summary judgment proceeding is
that general allegations and notice pleading are not enough. . . . That party must
come forward with at least some evidentiary proof, some statement of specific
fact upon which to base his case. If he fails, the motion for summary judgment is
properly granted.
Id. at 478–79 (emphasis omitted) (quoting Durant v. Stahlin, 135 N.W.2d 392 (Mich. 1965)).
In this case, as noted, Plaintiffs have not produced evidence supporting their theory of
causation. Plaintiffs have not identified, for example, any physical evidence, testing, or expert
literature that demonstrates why they think that the gasket could have adhered to the seat, much
less that it did so. Rather, to establish causation Plaintiffs rely on Dr. Kasner’s opinion. As
noted, however, Dr. Kasner’s testimony has been excluded. Even it had not been, “Dr. Kasner
has not, and cannot, identify any documented instance of a rubber gasket sticking to an inlet seat
in any gas control valve, let alone such an occurrence with a Robertshaw control valve.” Dow,
2011 WL 4484001, at *7.
Because Plaintiffs have not produce evidence supporting their theory of causation,
Plaintiffs’ motion for reconsideration of the opinion and order granting Defendants’ motions for
summary judgment will be denied.

-16-

V
Accordingly, it is ORDERED that Plaintiff’s motion for reconsideration of the Court’s
opinion and order granting Robertshaw’s motion to exclude the testimony of Alan Kasner (ECF
No. 220) is DENIED.
It is further ORDERED that Plaintiff’s motion for reconsideration of the Court’s opinion
and order granting Defendants’ motion for summary judgment (ECF No. 221) is DENIED.

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: May 9, 2012
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on May 9, 2012.
Tracy A. Jacobs
TRACY A. JACOBS

-17-