Citizens Insurance Company of America v. FXI, Inc.

Filing 45

ORDER (1) Granting in Part and Denying in Part Defendant's 36 Motion for Summary Judgment and (2) Granting in Part and Denying in Part Defendant's 35 Motion to Exclude Expert Testimony. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CITIZENS INSURANCE COMPANY
OF AMERICA,
Plaintiff,
Case No. 18-cv-12076
Hon. Matthew F. Leitman

v.
FXI, INC.,

Defendant
__________________________________________________________________/
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF No. 36)
AND (2) GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO EXCLUDE EXPERT TESTIMONY (ECF No. 35)
This action arises out of a fire that burned down the home of Kevin
Kwiatkowski. Kwiatkowski insured his home with Plaintiff Citizens Insurance
Company of America, and Citizens paid over $1.2 million to repair and rebuild the
home. Citizens brings this action against Defendant FXI, Inc., as the subrogee of
Kwiatkowski. Citizens contends that FXI is liable for the fire-related damages
because a foam gutter guard manufactured by FXI ignited and caused the fire. (See
First Am. Compl., ECF No. 13.) Citizens alleges that FXI was negligent and that
FXI breached certain express and implied warranties. (See id.)
FXI now seeks summary judgment on Citizens’ claims. (See Mot. for Summ.
J., ECF No. 36.) It has also moved to exclude certain opinion testimony by Citizens’
1

expert witnesses. (See Mot. to Exclude, ECF No. 35.) For the reasons that follow,
both of FXI’s motions are GRANTED IN PART AND DENIED IN PART.
I
A
FXI is a manufacturer of polyurethane foam products. (See Dep. of Marc
Albero, FXI Senior Director, ECF No. 36-2, PageID. 542-543.) In 2012, FXI
manufactured and sold at retail stores a product called the “Rain Filter.” (See id.,
PageID.545; see also Rain Filter Marketing Materials, ECF No. 38-3.) The Rain
Filter is a gutter guard that is designed to keep leaves, insects, and debris from
accumulating in gutters. (See id.)
FXI included a one-page written warranty with every Rain Filter that it sold.
In that warranty, FXI promised that it would repair, replace, or refund the purchase
price of the Rain Filter if it had any “defects in material and workmanship in the
course of manufacture.” (Warranty, ECF No. 36-6.) The warranty also included a
section under the heading “What Doesn’t This Warranty Cover?” (Id.) In that
section of the warranty, FXI said that the warranty did not cover, among other things,
“damage of any kind resulting from … fire, … warming[,] or distortion due to
exposure to excessive heat sources.” (Id.) Finally, the warranty stated, in all capital
letters, that “OTHER THAN THE WARRANTIES EXPRESSLY PROVIDED
HEREIN, [FXI] MAKE[S] NO WARRANTIES, EXPRESS OR IMPLIED,
2

REGARDING THE QUALITY OR PERFORMANCE OF THE [RAIN FILTER],
INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.” (Id.)
B
Kevin Kwiatkowski owns a home in Oakland Township, Michigan. (K.
Kwiatkowski Dep., ECF No. 38-10, PageID.1217.) In 2016, he insured his home
with Citizens.
On May 24, 2012, Kwiatkowski purchased a Rain Filter gutter guard for his
home from a local Costco. (See Receipt, ECF No. 36-18.) He then installed the Rain
Filter on his roof. (See K. Kwiatkowski Dep., ECF No. 38-10, PageID.1221.) From
2012 until 2016, the Rain Filter kept Kwiatkowski’s gutters clear from debris. (See
id., PageID.1221-1222.)
On July 11, 2016, Kwiatkowski’s then fourteen-year-old son Pierson was
playing with sparklers in Kwiatkowski’s driveway. (See Pierson Kwiatkowski Dep.,
ECF No. 38-1, PageID.1093.) Pierson then “threw [a lit] sparkler up in the air and
it landed on the roof” of Kwiatkowski’s home. (Id.) The sparkler landed on the
shingles, “3 or 4 inches above the [gutter],” and it then “rolled into [the gutter].” (Id.,
PageID.1095.) Fifteen seconds later, Pierson saw that the roof of the home had
caught fire. (See id.)

3

The fire caused substantial damage to Kwiatkowski’s home. After the fire,
Kwiatkowski filed an insurance claim with Citizens. Citizens then paid over $1.2
million to repair the home and approximately $350,000 in personal property losses.
(See K. Kwiatkowski Dep., ECF No. 38-10, PageID.1230.)
C
Citizens, as the subrogree of Kwiatkowski, filed this action against FXI on
June 5, 2018 in the Oakland County Circuit Court. (See Compl., ECF No. 1-2.) FXI
then removed the action to this Court. (See Notice of Removal, ECF No. 1.)
Citizens filed a First Amended Complaint on November 19, 2018. (See First
Am. Compl., ECF No. 13.) In the First Amended Complaint, Citizens brings two
claims against FXI under Michigan law. In Count I, Citizens alleges that FXI was
negligent. (See id., PageID.120-121.) In Count II, Citizens claims that FXI breached
its express and implied warranties. (See id., PageID.121.)
FXI filed a motion for summary judgment on all of Citizens’ claims on
December 30, 2019. (See Mot. for Summ. J., ECF No. 36.) On that same day, FXI
also filed a motion to exclude certain opinions offered by Citizens’ expert witnesses.
(See Mot. to Exclude, ECF No. 35.) The Court held a hearing on the motions on
June 11, 2020. (See Notice of Hearing, ECF No. 41.)

4

II
A
The Court first turns to FXI’s motion for summary judgment. A movant is
entitled to summary judgment when it “shows that there is no genuine dispute as to
any material fact.” SEC v. Sierra Brokerage Servs., Inc., 712 F.3d 321, 326–27 (6th
Cir. 2013) (citing Fed. R. Civ. P. 56(a)). When reviewing the record, “the court must
view the evidence in the light most favorable to the non-moving party and draw all
reasonable inferences in its favor.” Id. (quoting Tysinger v. Police Dep’t of City of
Zanesville, 463 F.3d 569, 572 (6th Cir. 2006)). “The mere existence of a scintilla of
evidence in support of the [non-moving party’s] position will be insufficient; there
must be evidence on which the jury could reasonably find for [that party].” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Summary judgment is not
appropriate when “the evidence presents a sufficient disagreement to require
submission to a jury.” Id. at 251–52.
B
In Count I of the First Amended Complaint, Citizens alleges that FXI was
negligent in two respects1: by failing to warn of the fire danger associated with the
Rain Filter and by defectively designing the Rain Filter. FXI has moved for

1

Michigan substantive law governs in this diversity action. See Erie R.R. v.
Tompkins, 304 U.S. 64, 78 (1938).
5

summary judgment on both theories of negligence. The Court will examine each
separately.
1
The Court begins with Citizens’ failure-to-warn claim. “To establish a prima
facie case of failure to warn” under Michigan law, “a plaintiff must prove that: (1)
the defendant owed a duty to the plaintiff; (2) the defendant breached that duty; (3)
the defendant’s breach was a proximate cause of the plaintiff’s injuries; and (4) the
plaintiff suffered damages.” Eiben v. Gorilla Ladder Co., 2013 WL 1721677, at *9
(E.D. Mich. Apr. 22, 2013) (citing Warner v. General Motors, Corp., 357 N.W.2d
689, 694 (Mich. App. 1984)). FXI argues that Citizens’ failure-to-warn claim fails
for three primary reasons: (1) FXI did not have a duty to warn because the risk here
was unforeseeable, (2) the gutter guard was not the proximate cause of the fire, and
(3) any additional warnings would not have prevented the fire because Kwiatkowski
would not have read them. None of these theories entitle FXI to summary judgment
on Citizens’ failure-to-warn claim.
a
FXI first argues that it did not have a duty warn Kwiatkowski that the Rain
Filter could ignite because “the manner in which the fire occurred was completely
unforeseeable.” (Mot. for Summ. J., ECF No. 36, PageID521.) More specifically,
FXI contends that nobody reasonably could have foreseen that the Rain Filter would
6

come into contact with a lit sparkler thrown onto a roof. (See id. at PageId.521.) The
Court declines to grant summary judgment on this basis.
FXI’s foreseeability analysis defines the risk too narrowly. “[F]oreseeability
is not a term of precision.” Tropea v. Shell Oil Co., 307 F.2d 757, 766 (1962). On
the contrary, “[a]ll authorities agree that the specific risk or consequence which
occurred need not have been foreseen for the court to impose liability. Instead all
that is required for liability is that the risk of injury to the plaintiff be foreseeable in
a general way.” Id. (holding that “plaintiff and his injury were within the scope of
[defendant’s] duty not to create a foreseeable risk of danger” even where defendant
did “not foresee the exact manner in which the dumping of the waste liquid would
cause a fire”).2 Michigan appears to follow this general rule. Indeed, the Michigan
Supreme Court has explained that “[a] plaintiff need not establish that the
mechanism of injury was foreseeable or anticipated in specific detail. It is only
necessary that the evidence establishes that some injury to the defendant was
foreseeable or to be anticipated.” Shultz v. Consumers Power Co., 506 N.W.2d 175,
179 n.7 (Mich. 1993) (emphasis added). See also Hiner v. Mojica, 722 N.W.2d 914,
921 n.3 (Mich. App. 2006) (reversing trial court’s grant of summary disposition on

2

“On the other hand, of course, the definition of the relevant risk must not be drawn
too broadly, otherwise there would be virtually no limitation on the scope of the
defendant’s duty.” Tropea, 307 F.2d at 766.

7

negligence claim, disagreeing with trial court’s conclusion that plaintiff’s injury was
not foreseeable, and noting that “the inability to foresee the precise manner in which
the injury occurred is not fatal to plaintiff’s negligence claim”) (emphasis in
original); Lockridge v. Oakwood, Hosp., 777 N.W.2d 511, 515 (Mich. App. 2009)
(reaffirming that “in a typical negligence case, a plaintiff need not establish that the
mechanism of injury was foreseeable or anticipated in specific detail. It is only
necessary that the evidence establishes that some injury to the plaintiff was
foreseeable or to be anticipated.”) (internal quotation marks omitted; emphasis in
original).
Thus, the question here is not whether the precise risk of a teenager throwing
a lit sparkler onto the roof was foreseeable. Instead, the question is whether FXI
reasonably could have foreseen that some airborne heat source – such as a firework,
an ember from a fire pit or chimney, or ash from a burning pile of leaves in the fall
– would come into contact with the foam inside the Rain Filter. And that risk was
reasonably foreseeable. It is common knowledge that Americans light off a variety
of fireworks to celebrate the Fourth of July and other special occasions, and it is
foreseeable that a flaming ember or other component of an errant firework may end
up on a homeowner’s roof and roll into a gutter. Indeed, FXI itself promotes that
another of its gutter guard products will not “burn if exposed to heat or fire” that is

8

“equivalent to sustained exposure … to fireworks.”3 (“Frequently Asked Questions
(FAQs) GutterClear 365,” ECF No. 44, PageID.1494.) That FXI has affirmatively
introduced the idea that one of its gutter guard products could withstand heat and
fire like that from a firework underscores that the risk of embers from fireworks
ending upon on a roof and gutter is foreseeable.4
For these reasons, the Court concludes that FXI is not entitled to summary
judgment on the ground that the risk here was not foreseeable as a matter of law.
b
FXI next argues the gutter foam in the Rain Filter was the not the proximate
cause of the fire for two reasons. FXI is not entitled to summary judgment on either
ground.
First, FXI asserts that Pierson’s act of throwing a sparkler onto the roof of
Kwiatkowski’s home was a “superseding cause” of the fire. Under Michigan law:

3

The quote above comes from a promotional “Frequently Asked Questions”
document for FXI’s “GutterClear 365” gutter guard product. The GutterClear 365
is the successor to the Rain Filter. (See Mot. for Summ. J., ECF No. 36, PageID.515:
“FXI replaced Rain Filter in 2013 with Gutter Clear 365.”)
4

In its supporting brief, FXI implies that sparklers are a more intense heat source
from other, airborne fireworks. But while FXI has directed the Court to evidence
concerning the temperature ranges at which fireworks burn (see Mot. for Summ. J.,
ECF No. 36, PageID.518, citing expert report of Dr. Donald Hoffman, ECF No. 3612, PageID.644), it has not directed the Court to evidence that the embers of other
fireworks burn at a materially lower temperature.
9

[The] chain of causation between the defendant’s conduct
and the plaintiff’s injuries may be broken by an
intervening or a superseding cause. An intervening cause
is one which actively operates in producing harm to
another after the actor’s negligent act or omission has been
committed. An intervening cause breaks the chain of
causation and constitutes a superseding cause which
relieves the original actor of liability, unless it is found that
the intervening act was reasonably foreseeable. Thus, the
issue of proximate causation requires focusing on whether
the result of conduct that created a risk of harm and any
intervening causes were foreseeable.
Auto Owners Ins. Co. v. Seils, 871 N.W.2d 530, 545 (Mich. App. 2015) (internal
quotation marks and citations omitted). FXI asserts that Pierson was a “superseding
cause” of the fire because, “disregarding all warnings on the sparkler package, [he]
intentionally threw a lit sparkler, a product not intended to fly, high onto a roof which
rolled into a roof gutter, exposing any material it touched to temperatures of up to
2,000 degrees.” (Mot. for Summ. J., ECF No. 36, PageID.522.) And FXI insists that
it “could not have foreseen that such an intense heat source would be deliberately
thrown high into the air and into the rooftop gutter. Pierson’s acts were an
unforeseeable, superseding cause which relieves FXI of any liability.” (Id.) But for
all of the reasons stated above, the risk here was reasonably foreseeable. Thus,
Pierson’s conduct was not a superseding cause of the harm.
Second, FXI contends that it is pure speculation to conclude that the foam
inside the Rain Filter was the proximate cause of the fire. But Citizens has offered
more than speculation to support its theory that the fire was caused by the ignition
10

of the foam in the Rain Filter. Indeed, it has presented both eyewitness and expert
testimony that the fire was caused by the sparkler igniting the foam inside the gutter
guard, not any other cause.

Most importantly, Citizens produced the expert

testimony of materials scientist Dr. Elizabeth Buc. Dr. Buc opined that the other
materials on Kwiatkowski’s roof in the vicinity of the sparkler – such as the asphalt
shingles and wood – have too much thermal inertia to readily ignite when exposed
to a sparkler for a limited period of time. (See Dr. Buc Dep., ECF No. 38-17,
PageID.1354, 1359.). By process of elimination, Dr. Buc’s expert testimony points
the finger directly at the foam in the Rain Filter as the cause of the fire. Her
testimony takes Citizen’s causation theory outside of the realm of speculation and
creates a genuine issue of a material fact for trial on the proximate cause of the fire.
Moreover, Pierson Kwiatkowski testified that the lit sparkler landed on the roof and
rolled directly into the gutter before the fire began (see P. Kwiatkowski Dep., ECF
No. 38-1, PageID.1095), and that testimony further suggests that the foam in the
gutter was the initial source of ignition.
c
Finally, FXI argues that even if it had provided additional warnings to
Kwiatkowski, the fire would still have occurred because Kwiatkowski would not
have read those warnings. (See Mot. for Summ. J., ECF No. 36, PageID.532.) But
Kwiatkowski testified that had FXI included a warning that the Rain Filter was not
11

fire retardant, then he would have read the warning and “would definitely not have
bought” the Rain Filter. (Kwiatkowski Dep., ECF No. 38-10, PageID.1232.) That
testimony is enough to defeat FXI’s theory that, as a matter of law, the missing
warnings would not have made a difference.
For all of these reasons, FXI is not entitled to summary judgment on Citizens’
failure-to-warn claim.
2
The Court next addresses Citizens’ design defect claim. FXI is entitled to
summary judgment on that claim.
“Michigan has adopted what its courts have come to call the ‘risk-utility’ test
for determining whether a plaintiff has made out a case for a product liability claim
based upon a claimed design defect.” Peck v. Bridgeport Machines, Inc., 237 F.3d
614, 617 (6th Cir. 2001). In order to prevail on a design defect claim under Michigan
law, a plaintiff must establish that:
(1) the severity of the injury was foreseeable by the
manufacturer;
(2) the likelihood of occurrence of [the plaintiff’s] injury
was foreseeable by the manufacturer at the time of
distribution of the product;
(3) there was a reasonable alternative design available;
(4) the available alternative design was practicable;

12

(5) the available and practicable reasonable alternative
design would have reduced the foreseeable risk of harm
posed by defendant’s product; and
(6) the omission of the available and practicable
reasonable alternative design rendered defendant’s
product not reasonably safe.
Id. at 617-18. This test places a “heavy burden” on plaintiffs. Dow v. Rheem Mfg.
Co., 2011 WL 4484001, at *17 (E.D. Mich. Sept. 26, 2011).
Citizens’ design-defect claim fails as a matter of law at element five of the
risk-utility test. Simply put, Citizens has not carried its “heavy burden” to show that
there was an “available and practicable reasonable alternative design that would
have reduced the foreseeable risk” of the Rain Filter catching fire. That failure is
fatal to Citizens’ design-defect claim.
Citizens counters that it has identified such an available and reasonable
alternative design. Citizens highlights that for a period of time, FXI did manufacture
the Rain Filter with a fire-retardant coating. (See Resp. Br., ECF No. 38,
PageID.1082.) Citizens says that this history conclusively demonstrates that there
was an available and practicable design of the Rain Filter that would have reduced
the risk of fire. (See id.) But the testimony of Citizens’ own expert, Dr. Buc, belies
this argument. Dr. Buc testified that the fire-retardant coating FXI once applied to
the Rain Filter would only have prevented a fire from a “small sparkler” in a single

13

specific and “perfect scenario.”5 (Dr. Buc. Dep., ECF No. 38-17, PageID.1361.)
Otherwise, the coating would not necessarily prevent a fire. (See id.) Thus, Citizens
has not presented sufficient evidence that the alternative design at issue – a gutter
guard with the identified fire-retardant coating – would have meaningfully reduced
the foreseeable risk of harm. Accordingly, FXI is entitled to summary judgment on
Citizens’ design-defect claim.
C
In Count II of the First Amended Complaint, Citizens seeks damages for
FXI’s alleged breach of implied warranties.6 FXI is entitled to summary judgment
that claim.
Under Michigan law, “[w]here the seller at the time of contracting has reason
to know any particular purpose for which the goods are required and that the buyer

5

Dr. Buc explained that this “perfect scenario” involved a gutter guard where the
foam was “coated, flat, [had] no gaps, [was] no[t] pulling away from the gutter, and
[had] not deteriorated to the point [where] the coating [was] no longer effective.”
Dr. Buc. Dep., ECF No. 38-17, PageID.1361.) And she confirmed that this “perfect
scenario” did not exist here because, among other things, the gutter foam had
deteriorated and formed gaps. (See id., PageID.1363.)
6

Citizens also brought a claim against FXI for breaching FXI’s express warranty.
Citizens withdrew that claim at the hearing on FXI’s summary judgment motion.
Even if Citizens had not withdrawn the claim, the Court would have granted
summary judgment in favor of FXI on the express warranty claim because FXI did
not expressly warrant that the Rain Filter would not catch fire. The Court therefore
GRANTS FXI summary judgment with respect to Citizens’ breach of express
warranty claim.
14

is relying on the seller’s skill or judgment to select or furnish suitable goods, there
is[,] unless excluded or modified under the next section[,] an implied warranty that
the goods shall be fit for such purpose.” Mich. Comp. Laws § 440.2315. “However,
Michigan law allows this warranty to be disclaimed ‘by general language ... if it is
in writing and conspicuous.’” Michigan Dessert Corp. v. A.E. Staley Mfg. Co., 23 F.
App’x 330, 335 (6th Cir. 2001) quoting Mich. Comp. Laws § 440.2316, Cmt. 4. See
also Zanger v. Gulf Streams Coach, Inc., 2005 WL 3416466, at *4 (E.D. Mich. Dec.
13, 2005) (“There is no dispute that a seller may disclaim implied warranties under
Michigan law as long as the disclaimer is conspicuous”).
Here, the disclaimer of the implied warranties was both in writing and
conspicuous. As described above, that disclaimer was included in a section of the
one-page warranty titled “What Doesn’t This Warranty Cover.” (See Warranty, ECF
No. 36-6.) In addition, the specific disclaimer of the implied warranty was in all
capital letters in the only paragraph of the warranty that included writing in “ALL
CAPS.” Under these circumstances, FXI sufficiently disclaimed the existence of
any implied warranties.
Citizens counters that the disclaimer here was unconscionable. (See Resp. Br.,
ECF No. 38, PageID.1084-1085.) In support of that argument, it relies almost
entirely on the Michigan Court of Appeals’ decision in Latimer v. William Mueller
& Son, Inc., 386 N.W.2d 620 (Mich. App. 1986). In Latimer, the Michigan Court
15

of Appeals held that an attempted disclaimer of an implied warranty was
unconscionable. See id. But Latimer is materially distinguishable. In Latimer, the
Michigan Court of Appeals held that the disclaimer in that case was unconscionable
where it was “insufficiently conspicuous,” was not in all capital letters, and was
included under the confusing heading “warranty.” Id. at 625. Here, in sharp contrast,
the disclaimer is conspicuous, was in all capital letters, and was included in a section
of the warranty titled “What Doesn’t This Warranty Cover.” The Court is therefore
not persuaded that the disclaimer of warranties here is unconscionable under
Latimer.
In the alternative, even if FXI had not properly disclaimed any implied
warranties, FXI would still be entitled to summary judgment on Citizens’ breach of
implied warranty claim.

Under Michigan law, “[a]lthough breach of implied

warranty and design defect are distinct theories of recovery, ‘in an action against the
manufacturer of a product based upon an alleged defect in its design, breach of
implied warranty and negligence involve identical evidence and require proof of
exactly the same elements.’” Peak v. Kubota Tractor Co., 559 F. App’x 517, 524
(6th Cir. 2014) (quoting Prentis v. Yale Mfg. Co., 365 N.W.2d 176, 186 (Mich.
1984)).

“Thus, ‘the only time the distinction between implied warranty and

negligence may have any significance in design defect cases, is in determining the
liability of a seller who is not also the manufacturer.’” Id. (quoting Prentis, 365
16

N.W.2d at 186 n.30). Here, for all of the reasons stated above, Citizens has failed to
establish a viable design defect claim because it has not identified an alternative
design that would have meaningfully reduced the foreseeable risk of harm.
Therefore, FXI is entitled to summary judgment on Citizens’ breach of implied
warranty claim.
III
The Court now turns to FXI’s motion to exclude certain opinions and
testimony offered by Citizens’ expert witnesses. (See Mot. to Exclude, ECF No. 35.)
The Court will analyze separately each opinion that FXI seeks to exclude.
A
The admissibility of expert testimony is governed by Federal Rule of
Evidence 702. That rule 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

17

(d) the expert has reliably applied the principles and
methods to the facts of the case.
FRE 702.
Under this rule, district courts have “broad discretion as [] ‘gatekeeper[s]’ to
determine the admissibility” of expert testimony. Pride v. BIC Corp., 218 F.3d 566,
578 (6th Cir. 2000). In assessing proposed expert testimony, a district court must
“determine whether [the] evidence ‘both rests on a reliable foundation and is relevant
to the task at hand.’” Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 527
(6th. Cir. 2012) (quoting Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597
(1993)).
In Daubert, the Supreme Court stressed that there is no “definitive checklist
or test” that a district court must apply when considering the reliability of expert
testimony. Daubert, 509 U.S. at 590. Yet, at the same time, the Supreme Court
identified “several factors that a district court should consider when evaluating the
scientific validity [and reliability] of expert testimony, notably: the testability of the
expert’s hypotheses (whether they can be or have been tested), whether the expert’s
methodology has been subjected to peer review, the rate of error associated with the
methodology, and whether the methodology is generally accepted within the
scientific community.” Pride, 218 F.3d at 577 (citing Daubert, 509 U.S. at 593-94).

18

The Daubert “factors, while perhaps most apt in evaluating a purely scientific
discipline, can also apply in evaluating non-scientific fields that are ‘technical’ or
‘specialized’ in nature.” United States v. Mallory, 902 F.3d 584, 593 (6th Cir. 2018)
(quoting Kuhmo Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 149-53 (1999)).
However, these factors may not be useful in evaluating the reliability of some types
of expert testimony, and thus applying the “factors [is] not mandatory in every case.”
Id.
Finally, “nothing in either Daubert or the Federal Rules of Evidence requires
a district court to admit evidence that is connected to existing data by the ipse dixit
of the expert.” Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997). In the end, “[t]he
questions of what factors to apply and what conclusions to draw about an expert’s
reliability are entrusted to the district court’s discretion.” Mallory, 902 F.2d at 593;
see also Kuhmo Tire, 526 U.S. at 141 (“[W]hether Daubert’s specific factors are, or
are not, reasonable measures of reliability in a particular case is a matter that the law
grants the trial judge broad latitude to determine.”).
B
FXI first argues that the Court should exclude the causation opinion testimony
of Citizens’ experts Dr. Buc and fire investigator James Maxwell. FXI insists that
this testimony is “purely speculative and should be excluded.” (Mot. to Exclude,
ECF No. 35, PageID.248.) The Court agrees in large part with respect to Maxwell
19

and excludes most of his causation opinions. But it disagrees with respect to Dr.
Buc and will admit her causation testimony.
The Court begins with Maxwell’s opinions. Maxwell is a fire investigator
whom Citizens retained to investigate the cause of the fire. (See Resp. to Mot. to
Exclude, ECF No. 37, PageID.901.) As part of his work, Maxwell conducted a
number of tests in which he attempted to ignite various materials with a sparkler.
(See id; see also Maxwell Rpt., ECF No. 35-11, PageID.350) Among other things,
Maxwell used a sparkler in an attempt to ignite (1) “foam from the actual gutter”
that was on Kwiatkowski’s roof, (2) plywood, (3) oriented strand board, and (4)
corrugated board. (Id.) In Maxwell’s tests, foam from the actual gutter “readily
ignited and sustained combustion.” (Id., citing Maxwell Dep., ECF No. 37-10,
PageID.1003-1004; see also Maxwell Rpt., ECF No. 35-11, PageID.350.) None of
the other “materials sustained flaming combustion during the testing.” (Maxwell
Rpt., ECF No. 35-11, PageID.350.)
To the extent that Maxwell’s causation opinions rely upon his testing of
plywood, oriented strand board, and corrugated board, the Court will exclude that
testimony and any reference to that testing because those opinions are not based on
a reliable foundation. The plywood, oriented strand board, and corrugated board
that Maxwell tested did not come from Kwiatkowski’s roof. Nor is there sufficient
evidence in the record that the materials on the roof were of the same kind or quality
20

that Maxwell tested. Testing materials not found on Kwiatkowski’s roof and not
sufficiently linked to the materials that were actually on the roof does not provide a
reliable foundation for an opinion concerning the cause of the fire. Simply put,
Citizens has not sufficiently and reliably connected Maxwell’s testing of these other
materials that were not found on the roof to what actually caused the fire here. Thus,
the Court will exclude Maxwell’s causation opinions to the extent they are based on
the testing of plywood, oriented strand board, and corrugated board.7
In contrast, the Court concludes that Dr. Buc’s causation opinions rest upon a
sufficiently reliable foundation. As described above, Dr. Buc concluded that the
Rain Filter gutter guard caused the fire here based on the principles of “thermal
inertia.” (See Buc Dep., ECF No. 38-17, PageID.1354, 1359.) As Dr. Buc explained,
based on thermal inertia, a sparkler could not ignite the type of plywood and
asphaltic shingles on the roof of Kwiatkowski’s home because “[y]ou have to have
a sufficient energy source to ignite a solid fuel which does not exist for a sparkler on
a solid fuel like asphaltic shingle[s]” or plywood. (Id., PageID.1359.) And she
testified that that would be true no matter the thickness or orientation or
manufacturer of the plywood and shingles on the roof. (See id.) Dr. Buc further

7

Prior to trial, the Court will determine which portions, if any, of Maxwell’s
causation testimony are not tainted by his testing of the materials not found on
Kwiatkowski’s roof. The Court may end up excluding his causation testimony in its
entirety.
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testified that in order to ignite the kind of asphaltic shingles on Kwiatkowski’s roof,
one would need “a substantial fire source such as a gas flame or a burning foam in
the gutter.” (Id.)
Dr. Buc’s opinion testimony regarding thermal inertia and the cause of the fire
is based on a reliable foundation. That testimony is based on Dr. Buc’s over twentythree years of experience “performing loss investigations, both in the field and in the
laboratory” and her long experience “characterizing the fire performance of solid,
liquid, and gaseous materials, including foam.” (Dr. Buc Rpt., ECF No. 35-14,
PageID.454.) It was also based her personal testing of foam found in the Rain Filter
gutter guard. (See Dr. Buc. Rpt., ECF No. 35-15, PageID.456-458.) Moreover,
FXI’s own expert Dr. Donald Hoffman agreed with Dr. Buc that under the principles
of thermal inertia, the foam inside the Rain Filter gutter guard “would be likely more
easy to ignite” than the wood on Kwiatkowski’s roof. (Dr. Hoffman Dep., ECF No.
37-13, PageID.1030.) Based on all of these facts, the Court concludes that Dr. Buc’s
testimony is sufficiently reliable. Any objections FXI has to the reliability of Dr.
Buc’s conclusions may be explored during the cross examination of Dr. Buc at trial.
C
FXI next argues that the Court should exclude the opinion of Citizens’ expert
Ruston Hunt that if FXI included warnings about the risk of fire with the Rain Filter,
then Kwiatkowski would not have bought the product or would have taken steps to
22

mitigate the fire risk. (See Mot. to Exclude, ECF No. 35, PageID.252-254.) The
Court agrees and excludes that testimony.
Hunt is a “human factors engineering expert.” (Resp. to Mot. to Exclude, ECF
No. 37, PageID.901.) Citizens retained him “to conduct an investigation relating to
human factors, warnings and instructions.” (Id.) Hunt then conducted a nine-step
process for human factors analysis. (See id., PageID.902.) He concluded, among
other things, that “FXI was aware Rain Filter exposed users to a flammability
hazard” and “the materials [included with the Rain Filter] should have clearly
warned of the flammability hazard.” (Id., citing Hunt Rpt., ECF No. 35-12.) At his
deposition, Hunt testified that it was reasonable to believe that Kwiatkowski would
“either not [have bought] the [Rain Filter] product or take[n] some steps to somehow
mitigate the hazard” had FXI included sufficient warnings about the flammability of
the Rain Filter. (Hunt Dep., ECF No. 35-13, PageID.446-447.)
The Court excludes this testimony by Hunt for two reasons. First, it is
essentially an opinion that Kwiatkowski is telling the truth when he says that he
would have read the warnings and refrained from buying the Rain Filter. The jury
is the sole judge of the credibility of Kwiatkowski’s testimony; it is not for an expert
to confirm the veracity of Kwiatkowski’s testimony that he would have acted
differently had FXI included a fire warning. Second, the testimony is unduly
speculative. Hunt admitted at his deposition that he never met or spoke with
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Kwiatkowski, that he did not research what other fire prevention activities
Kwiatkowski had engaged in related to his home, and that he did not research
Kwiatkowski’s fire safety behavior prior to the fire or Kwiatkowski’s previous use
of flammable consumer products. (Id., PageID.449-450.) Thus, Hunt lacked a
reliable basis on which to determine how Kwiatkowski would have reacted to a fire
warning on the Rain Filter. In sum, Kwiatkowski may testify about how additional
warnings would have affected his behavior; Hunt may not.
D
FXI next asserts that Citizens’ “expert reports are full of legal conclusions and
opinions on ultimate issues in the case that should be excluded.” (Mot. to Exclude,
ECF No. 35, PageID.254.) Citizens agrees that “both parties’ experts should not be
permitted to provide opinion testimony equating to legal conclusions.” (Resp. to
Mot. to Exclude, ECF No. 37, PageID.910.) The Court therefore will grant FXI’s
motion to exclude to the extent that it seeks to prevent experts from providing legal
conclusions and opinions. At the final pretrial conference, the Court will work with
the parties to identify the specific legal conclusions from all experts that should be
excluded.
E
Next, FXI argues that the Court should exclude Dr. Buc’s testimony that there
are specific standards that apply to flammability tests for the Rain Filter gutter guard.
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(See Mot. to Exclude, ECF No. 35, PageID.256.) FXI insists that there are “no
industry standards or regulations that apply to gutter foam” (id.) and that other
standards “that indisputably do not apply are simply not relevant to any issue in this
case.” (Reply Br., ECF No. 39, PageID.1435; emphasis removed.) FXI says that
Dr. Buc should not be permitted to testify about these irrelevant other standards.
In response, Citizens acknowledges that “there [are] not written standards for
such a specific product” like the Rain Filter. It counters, however, that “there are
standards/flammability testing methods applicable for foams” and other building
materials. (Resp. to Mot. to Exclude, ECF No. 37, PageID.911.) And Citizens insists
that these standards are sufficiently related to the foam in the Rain Filter that Dr.
Buc may testify about them. Citizens further highlights that FXI, itself, used one of
these flammability tests – known as the “pill test” – when it made foam for another
manufacturer and when it tested the flammability of its related gutter guard products,
the Leaf Defier and the GutterClear 365. (See id.)
To the extent that Dr. Buc seeks to testify about industry standards unrelated
to the “pill test,” the Court will exclude that testimony. Citizens has not sufficiently
shown that those tests are accepted in the industry, that they are a reliable way of
assessing the flammability of the particular foam at issue here, or that they will be
useful to the jury in determining the cause of the fire. However, the Court will allow
Dr. Buc to testify about the “pill test” and the performance of the Rain Filter foam
25

in that test. That testimony does strike the Court as relevant and reliable. It seems
fair and reasonable for Dr. Buc to testify about a standardized flammability test that
FXI itself used on its line of foam gutter guard products (even if FXI did not use it
specifically for the Rain Filter). At trial, FXI may cross examine Dr. Buc about the
efficacy of the “pill test” and how often it is used in the industry.
F
FXI next seeks to exclude Hunt’s opinion testimony arising out of a test Hunt
performed in which he attempted to light a piece of fire-resistant carpeting on fire
with a sparkler. (See Mot. to Exclude, ECF No. 35, PageID.257.) Hunt used this test
to show that a fire-resistant product will not burn when it comes into contact with a
lit sparkler. FXI argues that the fact “a fireresistant carpet did not burn when
exposed to a sparkler is not at all relevant to the question of whether a lit sparkler
could ignite foam gutter guard products.” (Id.) The Court agrees.
Put simply, whether a sparkler did or did not ignite a piece of carpet is not a
reliable basis for an opinion related to what caused the fire here. This fire had
nothing to do with carpet – it started on the uncarpeted roof of Kwiatkowski’s home,
not his carpeted living room or den. Citizens counters that Hunt’s carpet test is
“relevant to show that a product can be manufactured in a fire resistant manner that
will resist ignition from a sparkler.” (Resp. to Mot. to Exclude, ECF No. 37,
PageID.914.) But the question here is whether the foam in the Rain Filter would
26

have resisted a fire if it had been coated with a fire retardant, not whether some other
product resisted a fire when so coated. And Citizens has not sufficiently established
that the effect of fire retardant on carpeting is the same (or materially similar to) the
effect of such retardant on gutter foam. The Court will therefore exclude Hunt’s
testimony related to the carpet test.
G
Finally, FXI argues that the Court should exclude Dr. Buc’s opinion that
“FXI’s gutter foam reduced the fire resistance of otherwise approved roof covering
and building materials used in the construction of the Kwiatkowski home.” (Mot. to
Exclude, ECF No. 35, PageID.258.) It says that the Court should bar that opinion
because “Dr. Buc’s report and deposition testimony fails to provide any further
explanation, testing, or other support for this point.” (Id.)
Dr. Buc made the challenged statement in her expert report. (See Dr. Buc Rpt.,
ECF No. 35-15, PageID.454.) But at her deposition, Dr. Buc clarified this statement.
She testified that instead of reducing the fire resistance of the materials on
Kwiatkowski’s roof, the gutter foam “compromised” those materials:
Q: Did the sparkler igniting whatever it ignited at the home
reduce the fire resistance of other approved roof covering
and building materials?
[….]

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A: It compromised other materials that are required to
have some fire resistance from small ignition sources like
firebrands, etc.
Q: By compromise, is that different than reducing fire
resistance?
A: Yes.
Q: What do you mean by compromise then?
A: Because we want to have some fire resistance for
building materials from small ignition sources. This, once
ignited, was a large ignition source for the building
materials with which it was in contact.
(Dr. Buc Dep., ECF No. 38-17, PageID.1373.)
Based on this testimony, it is now clear that Dr. Buc will not testify that the
gutter foam reduced the fire resistance of the other materials on the roof. Instead,
she will testify that the gutter foam “compromised” those materials and that
“compromised” means something other than “reducing fire resistance.” FXI has not
persuaded the Court that Dr. Buc’s testimony regarding how the gutter foam
“compromised” the other materials on the roof should be excluded. The Court will
therefore allow that testimony.

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IV
For all of the reasons stated above, FXI’s motion for summary judgment (ECF
No. 36) and motion to exclude expert testimony (ECF No. 35) are GRANTED IN
PART AND DENIED IN PART as set forth in this order.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: October 1, 2020
I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on October 1, 2020, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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