Erie Insurance Company v. Sunbeam Products, Inc.

Filing 46

ORDER denying 40 Motion to Exclude; 42 Motion for summary judgment granting in part and denying in part. Plaintiff has presented evidence from which reasonable jurors could conclude by the greater weight of the evidence that the heater was, under the standard set out in 22 R.C. § 2307.74, defective in manufacture or construction and whether the defect was the cause of the fire. Consequently, the motion for summary judgment is DENIED as to that claim. Signed by Magistrate Judge Mark R. Abel on 01/08/2015. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Erie Insurance Company,
Plaintiff,
v.

:
:

Civil Action 2:12-cv-00703

:

Sunbeam Products, Inc.,
Defendant.

:

Magistrate Judge Abel

:

OPINION AND ORDER
This is an action for products liability brought by plaintiff Erie Insurance Company
(“Erie”) against defendant Sunbeam Products, Inc., for damages allegedly resulting from a fire
caused by a Holmes model HCH 6150 space heater manufactured by defendant. The action was
filed in the Court of Common Pleas for Fairfield County, Ohio, on July 3, 2012, and was
removed to this Court on August 3, 2012, as one arising under the Court’s diversity jurisdiction.
Notice of Removal, ECF 2. This matter is now before the Court, with the consent of the parties
pursuant to 28 U.S.C. § 636(c), for consideration of defendant’s motion in limine, ECF 40, and
defendant’s motion for summary judgment, ECF 42. Plaintiff has filed a joint response to both
motions, Plaintiff’s Response, ECF 44, and defendant has filed a joint reply, Defendant’s Reply,
ECF 45. This matter is now ripe for decision.
I.

Background
Michael and Alisha Baer purchased the house at 335 Lake Road, Lancaster, Ohio (the

“premises”), new from the home builder and moved into the house in May or June 2005.

Michael Baer Deposition, attached to Plaintiff’s Response as Exhibit A, at PAGEID 744, 749-51.
The Baers had the basement finished in early 2006. Id. at PAGEID 754-55. The basement had a
home office, living room, utility room, cedar closet, bathroom, and bedroom. Id. at PAGEID
757-59, 805; Plaintiff’s Response, Exhibit 2.
Mr. Baer had his secretary purchase a heater in December 2006 from Target to use at the
premises. Michael Baer Deposition, PAGIED 779-81, 785, 789. The heater was used from midSeptember through April for approximately two to four hours a day. Id. at PAGEID 783-84. Mr.
Baer’s sister occupied the basement bedroom for the six month period ending in May 2010, and
she used the heater during the winter months. Id. at PAGEID 791-92. In addition to the heater,
there was a refrigerator, desk, bed, stereo, lamp, and files for Mr. Baer’s business in the
bedroom. Id. at PAGEID 792-93, 807. Mr. Baer believes that he was the last person to use the
heater in the bedroom. He used it while filing papers. Id. at PAGEID 807.
Aside from having the basement finished, the Bears never had any other repairs or
improvements done on the premises prior to October 2010, and there were no issues with circuit
breakers tripping. Id. at PAGEID 755-56. On October 20, 2010, Mr. Baer worked in the
basement office from 9:00 a.m. until 11:00 a.m., when he went out to lunch with his wife and
children. Id. at PAGEID 803. The Bears returned around 1:00 p.m., and were greeted by thick
smoke when they opened the garage door; Mr. Baer closed the door and called 911. Id. at
PAGEID 800, 812-13.
The Richland Township Fire Department responded to the fire and was assisted by the
Pleasant Township Fire Department. Assistant Chief Ryan Wyse Deposition (“Wyse
Deposition”), attached to Plaintiff’s Response as Exhibit 4, at PAGEID 870-72. The fire was
2

contained in the basement and had self-extinguished by the time the fire departments arrived. Id.
at PAGEID 883-86, 888. The fire department overhauled and ventilated the house to make sure
the fire had not spread. Id. at PAGEID 887, 894. Assistant Chief Wyse testified that he (and
others) thought the fire started in the basement bedroom at or about where the space heater was
located. Id. at PAGEID 897-912. He also testified that the homeowner said the heater “was off,”
but that he understood the heater was still plugged in at the time of the fire. Id. at PAGEID 904.
The Pleasant Township Fire Department report identifies a space heater in the basement
bedroom as the cause of the fire. Plaintiff’s Response, Exhibit 3. Captain Andrew Slivka of the
Richland Township Fire Department testified that the origin of the fire was in the basement
bedroom and that he saw a V-pattern on the same wall that the space heater was on, but that he
did not remember where the space heater was positioned on that back wall. Moreover, he was not
qualified to determine the cause of the fire. Captain Andrew Slivka Deposition, ECF 44-5,
PAGEID 984-85, 989-92, 1007-08.
Mr. Baer reported the fire to Erie, his insurance company on the date of the fire. Michael
Baer Deposition, PAGIED 761-62, 764-65. Erie retained Casalinove Investigations, Inc., to
determine the origin and cause of the fire. Casalinova Report, attached to Plaintiff’s Response as
Exhibit 6, Doc. 44-6, PAGEID 1028. Rick Pletcher of Casalinova Investigations, Inc. performed
an initial investigation at the premises on October 21, 2010. Id. at p. 4, PAGEID 1031. Mr.
Pletcher returned to the premises with Matthew Gardner on October 22, 2010, to reconstruct the
scene, document the electric, and secure evidence. Id. Mr. Pletcher and Mr. Gardner eliminated
“[n]atural type fire causes,” and noted that there “was no evidence of an intentionally set fire.”
Id. at pp. 5, PAGEID 1032. The house electrical wiring and the refrigerator and desk lamp in the
3

basement bedroom were eliminated as potential causes of the fire. Id. There was no sign of
carelessly discarded smoking material, no evidence of candles in the basement bedroom, and the
stereo in the basement bedroom showed no sign of a failure or malfunction. Id. “The space
heater was inspected and could not be eliminated as to the cause” of the fire. Id. Mr. Pletcher
and Mr. Gardner concluded that the fire originated in the basement bedroom “in the area of the
space heater located centrally near the north wall.” Id. They further concluded that, “based on
the elimination and absence of all other heat sources in the area of origin, characteristics of this
fire loss, and statements made by the insured, . . . the most likely cause of this fire was a failure
or malfunction of the space heater.” Id. (emphasis in original). It was noted that “further
destructive analysis of the space heater [would be] required to determine the specific cause of
this fire.” Id., p. 5, PAGEID 1033.
Erie retained Mid-West Forensic Services “to perform a non-destructive, Computed
Tomography (CT) scan of debris” recovered from the fire. Mid-West Forensic Services Report,
attached to Memorandum in Support of Defendant’s Motion in Limine, ECF 41, as Exhibit K,
ECF 41-11, PAGEID 662. Fred Hackett, CT Analysis and Senior Fire Investigator, and Michael
Parker (“Parker”), Forensic Engineer, of Mid-West Forensic Services analyzed some of the
debris from the fire, performed a CT scan of the space heater, and prepared a report identifying
“an electrical event within the electric heater” as the cause of the fire. See id.
II.

Defendant’s Motion in Limine
Defendant has filed a motion in limine, asking that the Court exclude the report and

testimony of plaintiff’s expert, Michael Parker.
A.

Standard
4

The purpose of a motion in limine is to ensure the evenhanded and expeditious
management of trials by eliminating evidence that is clearly inadmissible. See Jonasson v.
Lutheran Child & Family Servs., 115 F.3d 436, 440 (7th Cir. 1997); Ohio Willow Wood Co. v.
Alps S., LLC, No. 2:04-cv-1223, 2014 WL 3734342, at *1 (S.D. Ohio July 29, 2014). A court
should exclude evidence on a motion in limine only when that evidence is determined to be
clearly inadmissible on all potential grounds. Ohio Willow Wood Co., 2014 WL 3734342 at *1
(quoting Weimer v. Honda of Am. Mfg., Inc., No. 2:06-cv-844, 2008 WL 4332525, at *1 (S.D.
Ohio Sept. 17, 2008) aff'd, 356 F. App'x 812 (6th Cir. 2009)). When a court is unable to
determine whether or not certain evidence is clearly inadmissible, evidentiary rulings should be
deferred until trial so that questions of foundation, relevancy and potential prejudice can be
resolved in the proper context. Id. (quoting Weimer, 2008 WL 4332525 at *1). Whether or not
to grant a motion in limine falls within the sound discretion of the trial court. Branham v.
Thomas M. Cooley Law Sch., 689 F.3d 558, 562 (6th Cir. 2012) (citing United States. v. Talley,
194 F.3d 758, 765 (6th Cir. 1999)).
B.

Discussion

Defendant’s motion in limine request that the Court exclude the testimony and report of
plaintiff’s expert, Michael Parker. Rule 702 of the Federal Rules of Evidence governs the use of
expert testimony:
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;
5

(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702. Rule 702 confers upon trial judges the role of “gatekeeper” when considering
the use of expert testimony. Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993).
This Court has previously explained its gatekeeping role:
The trial court's gate-keeping role is two-fold. First, a court must determine
whether the proffered testimony is reliable. See Daubert, 509 U.S. at 590. The
reliability assessment focuses on whether the reasoning or methodology
underlying the testimony is scientifically valid. Id. The expert's testimony must
be grounded in the methods and procedures of science and must be more than
unsupported speculation or subjective belief. Id. Thus, the proponent of the
testimony does not have the burden of proving that it is scientifically correct, but
that by a preponderance of the evidence, it is reliable. In re Paoli R.R. Yard PCB
Litig., 35 F.3d 717, 744 (3rd Cir. 1994).
The Supreme Court in Daubert set out four non-exclusive factors to aid in the
determination of whether an expert's methodology is reliable: (1) whether the
theory or technique has been tested; (2) whether the theory or technique has been
subjected to peer review and publication; (3) the known or potential rate of error
of the method used and the existence and maintenance of standards controlling the
technique's operation; and (4) whether the theory or method has been generally
accepted by the scientific community. Daubert, 509 U.S. at 593–94. See also
Deal v. Hamilton County Bd. of Ed., 392 F.3d 840, 851 (6th Cir. 2004). The
Court in Kumho Tire stressed that, in assessing the reliability of expert testimony,
whether scientific or otherwise, the trial judge may consider one or more of the
Daubert factors when doing so will help determine that expert's reliability.
Kumho Tire, 526 U.S. at 150. The test of reliability is a “flexible” one, however,
and the four Daubert factors do not constitute a “definitive checklist or test” but
must be tailored to the facts of the particular case. Id. (quoting Daubert, 509 U.S.
at 593); see also Ellis v. Gallatin Steel Co., 390 F.3d 461, 470 (6th Cir. 2004).
The particular factors will depend upon the unique circumstances of the expert
testimony involved. See Kumho Tire Co., 526 U.S. at 151–52.
The second prong of the gate-keeping role requires an analysis of whether the
expert's reasoning or methodology can be properly applied to the facts at issue;
that is, whether the opinion is relevant to the facts at issue. See Daubert, 509 U.S.
at 591–93. This relevance requirement ensures that there is a “fit” between the
testimony and the issue to be resolved by the trial. See United States v. Bonds, 12
6

F.3d 540, 555 (6th Cir. 1993). Thus, an expert's testimony is admissible under
Rule 702 if it is predicated upon a reliable foundation and is relevant.
The gatekeeper role, however, is not intended to supplant the adversary system or
the role of the jury; rather, “[v]igorous cross-examination, presentation of
contrary evidence, and careful instruction on the burden of proof are the
traditional and appropriate means of attacking shaky but admissible evidence.”
Daubert, 509 U.S. at 596. The judge's role is simply to keep unreliable and
irrelevant information from the jury because of its inability to assist in factual
determinations, its potential to create confusion, and its lack of probative value.
Wellman v. Norfolk and W. Ry. Co., 98 F.Supp.2d 919, 923–24 (S.D. Ohio 2000).
L.S. v. Scarano, No. 2:10-cv-51, 2011 WL 4948099, at *2-3 (S.D. Ohio Oct. 18, 2011). Guided
by the foregoing, the Court will consider defendant’s motion in limine.
Defendant does not challenge Parker’s qualifications as an expert. Defendant’s Reply, p.
7. Instead, defendant argues that Parker’s testimony is unreliable, and should be excluded under
Fed. R. Evid. 702 and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), because he
failed to follow the standards in National Fire Protection Association 921: Guide for Fire and
Explosion Investigations (“NFPA 921”).
“NFPA 921 ‘is designed to assist individuals who are charged with the responsibility of
investigating and analyzing fire and explosion incidents and rendering opinions as to the origin,
cause, responsibility, or prevention of such incidents.’” Travelers Cas. Ins. Co. of Am. ex rel.
Palumbo v. Volunteers of Am. Ky., Inc., No. 5:10-cv-301, 2012 WL 3610250, at *2 (E.D. Ky.
Aug. 21, 2012) (quoting NFPA 921, ch. 1.1 (2008 ed.)). “The purpose of NFPA 921 ‘is to
establish guidelines and recommendations for the safe and systematic investigation or analysis of
fire and explosion incidents.’” Id. (quoting NFPA 921, ch. 1.2.1). “NFPA-921 is a recognized
guide for assessing the reliability of expert testimony in fire investigations.” Ind. Ins. Co. v. Gen.
Elec. Co., 326 F. Supp. 2d 844, 849 (N.D. Ohio 2004) (citing Royal Ins. Co. of Am. v. Joseph
7

Daniel Constr., Inc., 208 F. Supp. 2d 423, 426–27 (S.D.N.Y. 2002); Travelers Prop. & Cas.
Corp. v. Gen. Elec. Co., 150 F. Supp. 2d 360, 366 (D. Conn. 2001)). See also Volunteers of Am.
Ky., Inc., 2012 WL 3610250 at *2 (quoting Thompson v. State Farm Fire and Cas. Co., 548 F.
Supp. 2d 588, 592 (W.D. Tenn. 2008)).
NFPA 921 provides a six step scientific method for determining the cause of a fire, which
“includes recognizing and defining the problem to be solved, collecting data, analyzing the data,
developing a hypothesis or hypotheses, and, most importantly, testing the hypothesis or
hypotheses.” NFPA 921, ch. 18.2 (2011 ed.). To use the scientific method, “the investigator
must develop at least one hypothesis based on the data available at the time. These initial
hypotheses should be considered ‘working hypotheses,’ which upon testing may be discarded,
revised, or expanded in detail as new data is collected during the investigation and new analyses
are applied.” Id. “Testing of the hypothesis is done by the principle of deductive reasoning, in
which the investigator compares the hypothesis to all the known facts as well as the body of
scientific knowledge associated with the phenomena relevant to the specific incident.” Id. at ch.
18.6.2. “Hypothesis testing may include: any application of fundamental principles of science,
physical experiments or testing, cognitive experiments, analytical techniques and tools, and
systems analysis.” Id. at ch. 18.6.4. Each hypothesis must be tested “using the Scientific
Method. If one remaining hypothesis is tested using the ‘scientific method’ and is determined to
be probable, then the cause of the fire is identified.” Id. at ch. 18.6.
Parker and Hackett performed a CT scan of the electric heater in 2011, which revealed
electrical arcing and an anomaly characteristic of arcing. Mid-West Forensic Services Report,
PAGEID 664. On January 27, 2012, Parker took part in an examination of the space heater, a
8

stereo, and a remote control to the space heater. Id. at PAGEID 664-65. The examination of the
stereo system was found to be largely unremarkable, and “[n]o indications were found to indicate
the stereo system was causal to this fire.” Id. at PAGEID 665. The remote control was presented
“in an undamaged state.” Id. at PAGEID 666.
A destructive examination of the heater remains revealed several electrical arcs. “The
two-conductor electrical cord for the heater was straightened out and measured approximately 87
inches from where it [was] embedded in the debris to where a termination due to an electrical arc
event is present.” Id. at PAGEID 668. “During the examination of the mechanical crimp
connections and the remaining conductors fastened in them, it was noted that several of the
stranded copper conductors ha[ve] individual strands melted together.” Id. at PAGEID 669.
“Examination of various portions of the wiring in the debris found evidence of electrical arcing
in portions of the wiring that were from inside the heater.” Id. Parker also re-examined the CT
dataset using updated software and found “three points of electrical arcing from wiring within
the heater.” Id. Parker analyzed the wiring using “the Sum Along Ray filtering within the CT
imaging viewer” and found “areas where the material composition of the copper conductors has
been altered by internal heating.” Id. at PAGEID 670. In total, Parker identified seven
“electrical events” inside the heater. Parker Deposition, PAGEID 595. Parker provided
photographic documentation of the examinations for each item and of the deconstruction of the
space heater remains.
In addition to the physical examinations, Parker reviewed the Casalinova Report, a
portion of defendant’s document production, and the depositions of Michael Baer, Pleasant
Township Fire Department Captain Michael Hutton, Pleasant Township Fire Department
9

Captain Andrew Slivka, and Hebron Fire Department Assistant Chief Ryan Wyse. Mid-West
Forensic Services Report, PAGEID 672. Parker also reviewed photographs of the fire scene.
Parker Deposition, PAGEID 597. Parker concluded that, based on a review of the evidence
and in accordance with the current direction of NFPA 921 Guide for Fire and
Explosion Investigations that with a High degree of engineering certainty, the
cause of this fire is from an electrical event within the electric heater. This event
was located within the electric heater in spaces not accessible to a consumer
eliminating consumer abuse or misuse. Using engineering principals associated
with the analysis of arc mapping, the evidence of arcing found within the heater
had to have occurred prior to the arcing event found exterior to the heater on the
electrical power cord for the heater.
Mid-West Forensic Services Report, PAGEID 672.
Defendant argues that Parker’s opinion is unreliable because he failed to comply with
NFPA 921. Defendant specifically challenges Parker’s application of the scientific method
described in NFPA 921, ch. 18.2. According to defendant, Parker failed to collect and analyze
all the data available to him because he failed to speak to Mr. Baer, the firefighters who
responded to the fire, or anyone at Casalinove Investigations, Inc. Defendant’s Reply, pp. 8-9.
Defendant also argues that Parker failed to review defendant’s entire document production,
including a document about the flammability characteristics of the plastics used in the heater. Id.
According to defendant, Parker failed to formulate alternative hypotheses, failed to perform any
tests, and failed to subject his theory to peer review. Id.; Memorandum in Support of
Defendant’s Motion in Limine, pp. 10-15.
Parker admitted during his deposition that he did not speak to Mr. Baer, the firefighters at
the scene, or anyone at Casalinove Investigations, Inc. He also failed to review defendant’s
entire document production, including a document about the flammability characteristics of the
plastics used in the heater. Nevertheless, Parker did review Mr. Baer and the firefighters’
10

depositions, as well as the Casalinove Report. See Parker Deposition, PAGEID 672. As to only
reviewing a portion of defendant’s document production, Parker explained that he was unable to
read many of the documents produced by defendant because they were written in Chinese. Id. at
PAGEID 603-04. It is also evident that Parker developed and ruled out several hypotheses.
Parker considered all the objects he examined as possible causes of the fire, as well as
combustibles being too close to the heater, and he was able to rule out other potential causes
based on the Casalinova Report. Id. at PAGEID 610, 647. Moreover, defendant’s arguments to
the contrary notwithstanding, see Memorandum in Support of Defendant’s Motion in Limine, pp.
10-14, Parker tested his theory that an electrical event inside the heater caused the fire. Parker
performed a CT scan of the heater and participated in a deconstructive examination. As a result,
Parker identified electrical arcing and seven total “electrical events” inside the heater. Mid-West
Forensic Services Report, PAGEID 668-70; Parker Deposition, PAGEID 595. Parker explained
that the heater, which he described as a “mass” or “melted blob,” was damaged such that it could
not be determined which arc occurred first. Parker Deposition, PAGEID 604. Parker was,
however, able to eliminate the anomaly in the motor armature as the origin of the fire, and he
performed arc mapping to the extent that he was able to determine that the internal arcing in the
heater occurred before arcing on the power cord. Id. at PAGEID 591, 603, 606, 648. Parker
relied on this evidence and his experience, which includes investigating approximately 50 fires
where plastic appliances have been ignited or have ignited, to determine that electrical activity
within the heater caused the fire. Id. at PAGEID 649.
Although Parker did not perform physical experiments to test his hypothesis, NFPA 921
specifically provides that testing is done by the principle of deductive reasoning. NFPA 921, ch.
11

18.6.2. NFPA 921 also provides that, in addition to physical testing, testing may be done by
analytical techniques and tools and systems analysis. NFPA 921, ch. 18.6.4. See also Travelers
Indem. Co. v. Indus. Paper & Packaging Corp., No. 3:02-cv-491, 2006 WL 1788967, at *4 (E.D.
Tenn. June 27, 2006) (“Section 2–3.6 of the NFPA 921 recognizes the process of deductive
reasoning as an appropriate methodology for determining the cause and origin of a fire. The
courts have also found deductive reasoning to be credible, scientific reasoning.”) (citing Royal
Ins. Co., 208 F. Supp. 2d at 427; Travelers Property & Cas. Corp., 150 F. Supp. 2d at 366;
Abon, Ltd. v. Transcon. Ins. Co., No. 2004-ca-0029, 2005 WL 1414486, at *10–11 (Ohio Ct.
App. June 16, 2005)).
Defendant next argues that Parker’s testimony is unreliable because he failed to rule out
all potential causes of the fire. Defendant’s Reply, p. 4. Defendant specifically argues that
Parker failed to rule out the stereo power cord and items examined during a second evidence
exam as possible causes of the fire. Id.; Memorandum in Support of Defendant’s Motion in
Limine, pp. 5, 7, 14. The stereo power cord was never recovered after the fire, and Parker
testified that he was unaware of when the second evidence exam was held, where it was held, or
what was evaluated at the exam. Parker Deposition, PAGEID 598. Parker’s inability to account
for unrecovered or unknown items goes to the weight of his testimony, not its admissibility. See
Volunteers of Am. Ky., Inc., 2012 WL 3610250 at *3; Ky. Farm Bureau Mut. Ins. Co. v. Hitachi
Home Elecs. (Am.), Inc., No. 3:08-cv-30, 2009 WL 2589854, at *3 (E.D. Ky. Aug. 20, 2009).
Similarly, “[w]hether additional or alternative testing would undercut or support [Parker’s]
testimony is a question of the weight to be given his conclusions, which can be addressed at
summary judgment or at trial.” State Farm Fire & Cas. v. Jarden Corp., No. 1:08-cv-1506,
12

2010 WL 2541249, at *5 (S.D. Ind. June 16, 2010) (citing U.S. Automatic Sprinkler, Co. v.
Reliable Automatic Sprinkler Co., No. 1:07-cv-00944, 2010 WL 1266659, at *3 (S.D. Ind. Mar.
25, 2010)). See also Indus. Paper & Packaging Corp., 2006 WL 1788967 at *4 (permitting an
expert fire investigator to testify without performing physical testing).
Defendant also argues that Parker’s testimony should be excluded because Parker did not
subject his theories to peer review. Memorandum in Support of Defendant’s Motion in Limine,
pp. 14-15. This argument is misplaced. It is not Parker’s causation theory that has to be peer
reviewed, but rather the theories underlying the forensic fire investigation standards in NFPA
921, which Parker used to form his causation conclusion. See Daubert, 509 U.S. at 593. As
discussed supra, NFPA 921 “is a peer reviewed and generally accepted standard in the fire
investigation community.” Indus. Paper & Packaging Corp., 2006 WL 1788967 at *4 (E.D.
Tenn. June 27, 2006). See also Hitachi Home Elecs., 2009 WL 2589854 at *4 (“Thus, these
scientific theories underlying the forensic fire investigative techniques [in NFPA 921] have
already been tested and deemed reliable.”).
“[T]he Daubert Court instructed district courts that their primary function as
‘gatekeepers' is to determine whether the principles and methodology underlying the testimony
itself are valid—not to second guess the validity of conclusions generated by otherwise valid
methods, principles, and reasoning.” Pride v. BIC Corp., 218 F.3d 566, 577 (6th Cir. 2000)
(internal quotations omitted) (upholding the exclusion of expert witnesses who failed to “test
their hypotheses in a timely and reliable manner or to validate their hypotheses by reference to
generally accepted scientific principles”). Considering the foregoing, the Court is satisfied that
Parker’s testimony is grounded in the generally accepted methodology outlined in NFPA 921
13

and is more than mere unsupported speculation or subjective belief. Defendant’s arguments go
to the weight of Parker’s opinions and are proper material for vigorous cross-examination.
Accordingly, defendant’s motion to exclude Parker’s testimony and expert report is denied.
III.

Defendant’s Motion for Summary Judgment
A.

Standard

The standard for summary judgment is well established. This standard is found in Rule
56 of the Federal Rules of Civil Procedure, which provides in pertinent part: “The court shall
grant summary judgment if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Pursuant
to Rule 56(a), summary judgment is appropriate if “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Id. In making this
determination, the evidence “must be viewed in the light most favorable” to the non-moving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Summary judgment will not lie if
the dispute about a material fact is genuine, “that is, if the evidence is such that a reasonable jury
could return a verdict for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). However, summary judgment is appropriate if the opposing party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). The “mere existence of a scintilla of evidence in support of the [opposing party’s]
position will be insufficient; there must be evidence on which the jury could reasonably find for
the [opposing party].” Anderson, 477 U.S. at 252.

14

The “party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions” of the
record which demonstrate “the absence of a genuine issue of material fact.” Celotex Corp., 477
U.S. at 323. The burden then shifts to the nonmoving party who “must set forth specific facts
showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 250 (quoting Fed. R. Civ.
P. 56(e)). “Once the moving party has proved that no material facts exist, the non-moving party
must do more than raise a metaphysical or conjectural doubt about issues requiring resolution at
trial.” Agristor Fin. Corp. v. Van Sickle, 967 F.2d 233, 236 (6th Cir. 1992) (citing Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
B.

Discussion

This is an action for products liability under the Ohio Products Liability Act, R.C.
2307.71 et seq. Defendant argues that plaintiff has failed to put forth evidence of a specific
defect in the space heater that caused the fire, and that there is no evidence that a defect existed
at the time the heater left the manufacturer. Memorandum in Support of Defendant’s Motion for
Summary Judgment, ECF 43, pp. 4-5. “Without testimony from Michael Parker that a defect
existed within the product when it left the manufacturer, Plaintiff will not be able to present to
the jury any evidence of a defect and summary judgment must be granted as a matter of law.”
Id.
Plaintiff argues that it need not identify the specific defect within the space heater that
caused the fire and that it has provided sufficient circumstantial evidence that the fire originated
within the space heater. Plaintiff cites to State Farm Fire & Cas. Co. v. Chrysler Corp., 523
N.E.2d 489 (Ohio 1988), and argues that manufacturing and design defects may be proven by
15

applying the “consumer-expectation standard:” “a product may be proven to be in a defective
condition if it is more dangerous than an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner.” Plaintiff’s Response, p. 9. According to plaintiff, it
“need only prove that the space heater did not perform in the way that an ordinary consumer
would expect it to perform when used as intended.” Id.
The consumer expectation standard is derived from Former R.C. § 2307.75(A), which
provides as follows:
(A) . . . [A] product is defective in design or formulation if either of the following
applies:
(1) When it left the control of its manufacturer, the foreseeable risks associated
with its design or formulation as determined pursuant to division (B) of this
section exceeded the benefits associated with that design or formulation as
determined pursuant to division (C) of this section;
(2) It is more dangerous than an ordinary consumer would expect when used in an
intended or reasonably foreseeable manner.
Newell Rubbermaid, Inc. v. Raymond Corp., 676 F.3d 521, 529 (6th Cir. 2012) (quoting R.C. §
2307.75(A) (2001) (amended 2004)). However, a subsequent statutory amendment that became
effective in April 2005 deleted this test from the definition of a defectively designed product.
See Bouher v. Aramark Servs., Inc., 910 N.E.2d 40, 43 (Ohio Ct. App. 2009); Former R.C.
2307.75(A) (2004); R.C. § 2307.75; 2004 Ohio Laws File 144 (2003 Ohio SB 80). Courts still
apply the consumer expectation standard when the plaintiff’s cause of action arose before the
statutory amendment became effective. See Ruff v. Wal-Mart Stores E., LP, No. 2:07-cv-292,
2009 WL 3150319, at *4 (S.D. Ohio Sept. 30, 2009) (citing Doty v. Fellhauer Elec., Inc., 888
N.E.2d 1138 (Ohio Ct. App. 2008)); Newell Rubbermaid, Inc., 676 F.3d at 529; Carroll v. Alliant
Techsystems, Inc., No. 06AP-519, 2006 WL 3008472, at *2 n.2 (Ohio Ct. App. Oct. 24, 2009);
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Bouher, 910 N.E.2d at 43; Gumnitsky v. Delta Int'l Mach. Corp., 411 F. Supp. 2d 756, 762 (N.D.
Ohio 2005) (“A 1996 amendment to the Ohio product liability code eliminated the consumer
expectation test for product defect. However, the 1996 amendments were subsequently held
unconstitutional. The Ohio product liability code has again been recently amended but these
changes do not apply herein since the accident occurred in April 2003.”). See also Hertzfeld v.
Hayward Pool Prods, Inc., No. L-07-1168, 2007 WL 4563446, at *9 n.1 (Ohio Ct. App. Dec. 31,
2007) (“Since the common-law ʽconsumer expectation test’ codified in R.C. 2307.75(A)(2) was
stricken from the Ohio Products Liability Act by S.B. 80, the inclusion of R.C. 2307.71(B)
abrogates the use of that common-law test for claims arising after April 7, 2005.”).
Defendant has not challenged plaintiff’s reliance on the consumer expectation standard.
However, the Court notes that Michael and Alisha Baer moved into the premises in May or June
2005, Bear Deposition, PAGEID 744, 749-51, Mr. Baer’s secretary purchased the heater in
December 2006, id. at PAGEID 779-81, 785, 789, and the heater remote bears a date code of
May 4, 2005. Mid-West Forensic Services Report, PAGEID 666. All three events occurred after
the consumer expectations standard was deleted from R.C. 2307.75.
Under the post-April 2005 version of R.C. 2307.75, a product may be defective in
manufacture or construction, R.C. § 2307.74, in design or formulation, R.C. § 2307.75, due to
inadequate warning or instruction, R.C. § 2307.76, or because it did not conform to a
representation made by its manufacturer. R.C. § 2307.77. The Complaint asserts claims based
on all four theories. See Complaint, ¶¶ 12-15. Nevertheless, Plaintiff’s Response refers to
defects generally and mentions only design and manufacturing defects in passing. Plaintiff’s
Response, p. 9. Accordingly, plaintiff has not raised a genuine issue of material fact and
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defendant is entitled to judgment as a matter of law on plaintiff’s claims under R.C. §§ 2307.76,
2307.77.
Under R.C. § 2307.75, a product is defective in design “if, at the time it left the control of
its manufacturer, the foreseeable risks associated with its design . . . exceeded the benefits
associated with that design.” R.C. § 2307.75(A). In determining the foreseeable risks associated
with a product’s design, a court should consider the following list of non-exhaustive factors:
(1) The nature and magnitude of the risks of harm associated with that design or
formulation in light of the intended and reasonably foreseeable uses,
modifications, or alterations of the product;
(2) The likely awareness of product users, whether based on warnings, general
knowledge, or otherwise, of those risks of harm;
(3) The likelihood that that design or formulation would cause harm in light of the
intended and reasonably foreseeable uses, modifications, or alterations of the
product;
(4) The extent to which that design or formulation conformed to any applicable
public or private product standard that was in effect when the product left the
control of its manufacturer;
(5) The extent to which that design or formulation is more dangerous than a
reasonably [sic] prudent consumer would expect when used in an intended or
reasonably foreseeable manner.
R.C. § 2307.75(B) (footnote omitted). The benefits associated with a product’s design are
determined by considering the following non-exhaustive factors:
(1) The intended or actual utility of the product, including any performance or
safety advantages associated with that design or formulation;
(2) The technical and economic feasibility, when the product left the control of its
manufacturer, of using an alternative design or formulation;
(3) The nature and magnitude of any foreseeable risks associated with an
alternative design or formulation.
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R.C. § 2307.75(C). The statute also provides that a product is not defective in design if there
was no “practical and technically feasible alternative design . . . that would have prevented the
harm for which the claimant seeks to recover.” R.C. § 2307.75(F). “Although this subsection
does not state that it is a plaintiff's burden to prove an alternative design, the Sixth Circuit has so
held.” Monroe v. Novartis Pharm. Corp., No. 1:12-cv-00746 WOB, 2014 WL 3378345, at *7
(S.D. Ohio July 10, 2014) (citing McGrath v. Gen. Motors Corp., 26 F. App’x 506, 510 (6th Cir.
2002); Jacobs v. E.I. du Pont de Nemours & Co., 67 F.3d 1219, 1242 (6th Cir. 1995)). In the
case presently before the Court, plaintiff has failed to address the benefits and risks of the space
heater’s design, and it has failed to present any evidence of an alternative design for the space
heater. Accordingly, defendant is entitled to summary judgment on plaintiff’s claim under R.C.
§ 2307.75.
Under R.C. § 2307.74, a product is defective in manufacture or construction “if, when it
left the control of its manufacturer, it deviated in a material way from the design specifications . .
. or performance standards of the manufacturer, or from otherwise identical units manufactured
to the same design specifications . . . or performance standards.” R.C. § 2307.74. A party may
establish that a product was defective through circumstantial evidence:
If a claimant is unable because the manufacturer's product in question was
destroyed to establish by direct evidence that the manufacturer's product in
question was defective or if a claimant otherwise is unable to establish by direct
evidence that the manufacturer's product in question was defective, then,
consistent with the Rules of Evidence, it shall be sufficient for the claimant to
present circumstantial or other competent evidence that establishes, by a
preponderance of the evidence, that the manufacturer's product in question was
defective in any one of the four respects specified [in the statute].
R.C. § 2307.73(B).

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Here, Assistant Chief Wyse testified that he (and others) thought the fire started in the
basement bedroom at or about where the space heater was located. Wyse Deposition, PAGEID
897-912. Mr. Pletcher and Mr. Gardner eliminated the house electrical wiring, the refrigerator
and desk lamp in the basement bedroom, and “[n]atural type fire causes” as the cause of the fire.
Casalinova Report, pp. 5-6. They also noted that there “was no evidence of an intentionally set
fire,” no sign of carelessly discarded smoking material, no evidence of candles in the basement
bedroom, and no sign of a failure or malfunction in the stereo in the basement bedroom. Id. Mr.
Pletcher and Mr. Gardner concluded that the fire originated in the basement bedroom “in the area
of the space heater located centrally near the north wall.” Id. They further concluded that,
“based on the elimination and absence of all other heat sources in the area of origin,
characteristics of this fire loss, and statements made by the insured, . . . the most likely cause of
this fire was a failure or malfunction of the space heater.” Id. (emphasis in original). As noted
supra, Michael Parker performed a CT scan and destructive examination of the space heater and
concluded that the fire was caused by an electrical event from within the space heater. Mid-West
Forensic Services Report, PAGEID 672. Parker also eliminated consumer abuse or misuse as a
cause of the fire because the electrical events occurred in spaces not accessible to a consumer.
Id. Moreover, Michael Bear testified that he never had any issues with the space heater or
experienced any strange smells or noises coming from the heater prior to the fire. Bear
Deposition, PAGEID 785.
Considering the foregoing, the Court concludes that there is a genuine issue of material
fact as to whether the space heater was defective and whether the defect was the cause of the fire.
Ohio case law suggests that “a plaintiff is entitled to an inference of a manufacturing defect if the
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defect is the type that could only have arisen during the manufacturing process or if the plaintiff
presents affirmative evidence that negates any act on his part that could have caused the defect.”
Harker v. Black & Decker (U.S.), Inc., 21 F.3d 427 (6th Cir. 1994) (citing Cincinnati Ins. Co. v.
Volkswagen of Am., Inc., 502 N.E.2d 651 (Ohio Ct. App. 1985); Nash v. Gen. Elec. Co., 410
N.E.2d 792 (Ohio Ct. App. 1979)). Moreover, absent substantial change in the condition in
which the product was sold, it may be inferred that the defect was present when it left the hands
of the manufacturer; this can be established by demonstrating that the product was not tampered
with. See Jones v. Staubli Motor Sports Div. of Staubli Am. Corp., 897 F. Supp. 2d 599, 610
(S.D. Ohio 2012); Ruff v. Wal-Mart Stores E., LP, No. 2:07-cv-292, 2009 WL 3150319, at *5
(S.D. Ohio Sept. 30, 2009). As discussed supra, plaintiff has presented evidence that the fire
was caused by electrical arcing in an area of the space heater that is not accessible to a consumer.
Plaintiff has also presented evidence suggesting that the space heater had not been tampered with
by Mr. Baer. Accordingly, the Court concludes that a reasonable jury could find in favor of
plaintiff based on the evidence presented. See Cincinnati Ins. Co., 502 N.E.2d at 655 (finding
that a reasonable jury could infer that a defect was present at the time the product left the
manufacturer, despite five years separating the date of manufacture and the fire that was
allegedly caused by the defect).
WHEREUPON, defendant’s motion in limine, ECF 40, is DENIED. Defendant’s
motion for summary judgment, ECF 44, is GRANTED in part and DENIED in part.
Defendant is entitled to summary judgment on plaintiff’s claims under R.C. §§ 2307.75,
2307.76, and 2307.77. Plaintiff has presented evidence from which reasonable jurors could
conclude by the greater weight of the evidence that the heater was, under the standard set out in
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R.C. § 2307.74, defective in manufacture or construction and whether the defect was the cause of
the fire. Consequently, the motion for summary judgment is DENIED as to that claim.

s/Mark R. Abel
United States Magistrate Judge

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