Opinion
CIVIL ACTION No. 02-2064-KHV, Consolidated with: Nos. 02-2229-KHV, 02-2230-KHV, 02-2231-KHV.
July 8, 2003
MEMORANDUM AND ORDER
This matter comes before the Court on Defendants' Motion For Summary Judgment On Plaintiffs' Product Liability Claim And On Plaintiffs' Punitive Damages Claim (Doc. #147) filed May 5, 2003. For reasons stated below, defendants' motion is sustained in part and overruled in part.
Procedural History
In various capacities, James B. and Lorray McCoy and American National Property and Casualty Company, their insurer, bring suit against Whirlpool Corporation ("Whirlpool") and Sears, Roebuck and Company ("Sears"), alleging that Whirlpool and Sears are strictly liable for damages which the McCoys sustained when a fire destroyed their home and killed their daughter on February 16, 2000. Plaintiffs allege that the fire originated in a Kenmore New Generation dishwasher which they purchased from Sears on August 26, 1996. Defendants deny that the fire originated in the dishwasher and argue that it was not defective or unreasonably dangerous.
In addition to strict liability, plaintiffs originally proceeded under theories of negligence, and gross, wanton and reckless conduct. On May 15, 2003, plaintiffs filed a motion to amend the pretrial order to withdraw their negligence claim and request for punitive damages. Motion To Amend Pretrial Order (Doc. #149). On June 6, 2003, the Court sustained plaintiffs' motion. Order (Doc. #155). Therefore, plaintiffs' sole remaining theory is strict liability. As to plaintiffs' negligence and punitive damages claims, defendants' motion for summary judgment is moot.
On March 10, 2003, defendants filed motions to exclude certain expert opinion testimony of plaintiffs' experts, James L. Kuticka and James L. Martin. See Defendants' Motion To Exclude Testimony Of Plaintiffs' Expert, James L. Kuticka (Doc. #113) and Defendants' Motion To Exclude Testimony Of Plaintiffs' Expert, James L. Martin (Doc. #111). On April 21, 2003, the Court overruled defendants' motion as to Kuticka and overruled in part defendants' motion as to Martin. See Memorandum And Order (Doc. #141).
On May 5, 2003, defendants filed their motion for summary judgment, arguing that they are entitled to summary judgment on plaintiffs' strict liability claim because plaintiffs cannot present a prima facie case of design or manufacturing defect.
Summary Judgment Standards
Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Vitkus v. Beatrice Co., 11 F.3d 1535, 1538-39 (10th Cir. 1993). A factual dispute is "material" only if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248. A "genuine" factual dispute requires more than a mere scintilla of evidence. Id. at 252.
The moving party bears the initial burden of showing the absence of any genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Hicks v. City of Watonga, Okla., 942 F.2d 737, 743 (10th Cir. 1991). Once the moving party meets its burden, the burden shifts to the nonmoving party to demonstrate that genuine issues remain for trial "as to those dispositive matters for which it carries the burden of proof." Applied Genetics Int'l, Inc. v. First Affiliated Secs., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990); see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986); Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991). The nonmoving party may not rest on pleadings but must set forth specific facts. Applied Genetics, 912 F.2d at 1241.
The Court must view the record in a light most favorable to the party opposing summary judgment. See Deepwater Invs., Ltd. v. Jackson Hole Ski Corp., 938 F.2d 1105, 1110 (10th Cir. 1991). Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative. See Anderson, 477 U.S. at 250-51. "In a response to a motion for summary judgment, a party cannot rely on ignorance of facts, on speculation, or on suspicion, and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). Essentially, the inquiry is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.
Factual Background
The following facts are either undisputed or, where disputed, construed in the light most favorable to plaintiffs.
Whirlpool is engaged in the business of designing, testing, manufacturing and marketing dishwashers, including Kenmore and Whirlpool "New Generation" dishwashers. Sears is engaged in the business of marketing, advertising and selling dishwashers, including the New Generation models. On August 26, 1996, James B. and Lorray McCoy purchased from Sears a premium model Kenmore New Generation dishwasher which Whirlpool had manufactured the week of June 16, 1996.
I. The Fire
Lorray McCoy and daughter Emily spent the evening of February 16, 2000 at home. Some time between 5:00 and 7:00 p.m., Lorray set the delay timer function of the dishwasher. At the end of the delay the dishwasher would automatically start its cycle, which lasts about 90 minutes and concludes with a 30-minute dry cycle, then automatically turn off. Lorray set the timer for the maximum delay of five hours. At about 11:10 p.m. Emily went to bed in her second floor bedroom. About 20 minutes later, Lorray went to bed in her first floor bedroom and watched television. As Lorray fell asleep, she smelled smoke. Initially, she thought the smell was from a neighbor's fireplace, but four or five minutes later she got out of bed and walked to the kitchen to investigate.
Lorray looked into the kitchen and saw flames coming out the front of the dishwasher. The flames had caught the curtains on fire and were spreading up the north wall. Lorray called to Emily, who was asleep in her bedroom, then called 911. The Louisburg Fire Department was dispatched to the McCoy home at 11:42 p.m. The fire totally destroyed the home and Emily died in the fire.
II. New Generation Dishwasher
In November of 1990, Whirlpool first produced and marketed the premium and base models of the New Generation dishwasher. The door latch switch assembly, which is located at the top center of the dishwasher door, consists of the latch bolt, lever latch, two microswitches, four AMP flag terminals attached to the two microswitches, and the crimp attachment of the four AMP flag terminals to the four wire conductors from the wiring harness of the dishwasher.
The record does not more specifically describe these parts.
In 1992, Whirlpool implemented certain design changes in the premium New Generation dishwashers. For example, in all premium models manufactured after April of 1992, Whirlpool replaced the white door interlock microswitch with a black one. The plunger in the black microswitch was made of a material that melted at a lower temperature than the plunger in the white microswitch. The black microswitch, sometimes referred to as a "fail safe," opens the circuit when the plunger melts and causes the dishwasher to stop running. For some premium models manufactured from April of 1992 through May of 1993, this design change caused overheating at the AMP flag terminals; the black microswitch limited the progression of the overheating, however, by opening the circuit and shutting off the machine before overheating could ignite a fire.
Whirlpool performs "Life Testing" of dishwashers, which involves hooking up a dishwasher in the way it would be hooked up in a consumer's home and running it for 24 hours a day for at least 4,000 cycles. During such testing, Whirlpool runs the dishwasher through a variety of cycles and inspects it on a regular basis. The dishwasher is later dismantled and inspected. The New Generation dishwasher life tests, summarized in a Life Test Incident Summary dated February 10, 1994, indicated that the black microswitch failed in the "closed position" on four occasions. In three of the four incidents, the microswitches were electrically open, so they could not conduct electricity. Grunewald Affidavit ¶¶ 5-6, Exhibit K to Defendants' Reply (Doc. #157). The terminals on the fourth switch were slightly discolored and the plunger melted to some extent, but the plunger did not melt sufficiently to open the switch. The plunger failed in the "closed position" and the dishwasher continued to operate, but the switch was not hot enough to melt the plunger or cause a fire. Id. ¶¶ 7-8.
The life test report specifically refers to the plungers being in the "closed position," which does not necessarily indicate whether the switch is electrically open or closed. Grunewald Affidavit ¶ 6, Exhibit K to Defendants' Reply (Doc. #157).
The plungers in the three switches melted enough to open the electrical connection, but the tops of the plungers were flush with the switch housing, as if the switches were intact and in the closed position.
In May of 1993, Whirlpool changed from an AMP flag terminal to an ETCO flag terminal at the door interlock microswitch/door latchswitchassembly. The two terminals had different crimp attachments at the flag terminals to the conductor wire. Although defendants claim the change was a quality issue and was not motivated by safety concerns, Whirlpool had to replace defective terminals on service calls after the change.
The record does specifically describe the flag terminal or disclose the technical differences between an AMP flag terminal and an ETCO flag terminal.
Plaintiffs claim that the dishwasher had a problem with excessive heating which the change to ETCO terminals did not correct.
III. Fire Origin And Cause
David L. Yates, a fire investigator for the Kansas State Fire Marshall's office, arrived at the fire scene at 5:19 a.m. on February 17, 2000. According to his report of February 23, 2000, Yates determined that the fire was accidental and suspected that the fire started in the kitchen, at or near the dishwasher. At his deposition January 4, 2001, he testified to his suspicion that the dishwasher caused the fire and that the fire originated along the north wall of the kitchen.
On behalf of the Kansas State Fire Marshall's office, Yates arranged for James L. Kuticka of Kuticka Fire Investigations, L.L.C. to investigate the origin and cause of the fire. Goben Company, which had installed the dishwasher, also hired Daniel E. Anderson of Anderson Investigations to investigate the fire. Kuticka and Anderson separately concluded that the fire was accidental and that it originated in the dishwasher.
American National Property and Casualty Company actually retained Kuticka.
Kuticka found that the dishwasher frame had been heavily burned at the door latch and timer and concluded that the fire originated at that area in the upper part of the door. Kuticka also examined two dishwashers (the Williams and Prentice dishwashers), which were similar to the McCoy dishwasher and had been involved in other fires. Kuticka opined that those dishwashers had fire patterns at the top of the doors which were similar to those on the McCoy dishwasher and that the fires in all three dishwashers had started at the location of the door switches and timer assembly. Kuticka considered the possibility that an external fire had caused the bum patterns on the McCoy dishwasher but concluded that the heat source "had to be internal to the dishwasher and originated in the area of the control panel at or near the location of the door switches and timer assembly."
Plaintiffs retained Michael J. Schulz as a fire expert. Schulz believes that the fire originated in the upper part of the dishwasher and that combustible components of the dishwasher probably ignited because of abnormal and undesired electrical heat energy. Plaintiffs also retained Byron W. Sherman, Ph.D. who believes that the fire occurred at or near the dishwasher because of a defect in the dishwasher. Plaintiffs also hired James L. Martin as an electrical engineering expert to determine, based on the opinions of other experts, the most probable electric cause of the fire. Specifically, plaintiffs hired Martin to investigate, based on Schulz and Kuticka's opinions that the fire originated in the dishwasher door latch assembly and resulted from excessive electrical heat, the most probable cause of the fire. Martin concluded that a defect in the electrical circuitry leading to the dishwasher door assembly and control panel most probably caused the abnormal and undesired electrical heat energy which — according to Schulz — had caused the fire. Martin opined that the dishwasher contained a design or manufacturing defect: excessive resistance in the flow of current through the door latch switch assembly because of (1) inadequate attachment and crimping of terminals to conductors or (2) inadequate attachment of terminals to microswitches. Martin also opined that the microswitches in the door latch assembly were inappropriate to function as thermal fuses.
Plaintiffs claim that defendants are strictly liable because the dishwasher was in a defective condition and had design and manufacturing defects which were unreasonably dangerous to users and consumers. Specifically, plaintiffs contend that the dishwasher contained a design defect in the form of (1) excessive resistance heating at the door latch switch assembly through (a) the terminals to the conductors, (b) the connection of the terminals to the microswitches, (c) the microswitches, or (d) the conductors, terminals and microswitches; (2) excessive current flow through the conductors, terminals and microswitches of the door latch switch assembly; or (3) use of two microswitches which functioned as thermal fuses in the door latch switch assembly. Pretrial Order (Doc. #120) filed March 21, 2003 at ¶¶ 6.a.(1)(a)-(f). Plaintiffs alternatively contend that the dishwasher contained a manufacturing defect in the form of inadequate attachment and crimping of terminals to microswitches in the door latch switch assembly. Id. ¶ 6.a(1)(h)(a).
Defendants argue that they are entitled to summary judgment on plaintiffs' strict liability claim because plaintiffs have not alleged and cannot prove that the dishwasher was defective and unreasonably dangerous. Memorandum In Support Of Defendants' Motion For Summary Judgment On Plaintiffs' Product Liability Claim And On Plaintiffs' Punitive Damages Claim ("Defendants' Memorandum") (Doc. #148) filed May 5, 2003. More specifically, defendants argue that
(1) the Court's order of April 21, 2003, which excluded part of Martin's testimony, effectively eliminated plaintiffs' theories that the dishwasher contained a design defect in the form of excessive resistance heating in the door latch assembly through either (a) the connection of the terminals to the microswitches, (b) the microswitches, or (c) the conductors, terminals and microswitches, and plaintiffs have no other evidence of these alleged defects;
(2) while plaintiffs have identified three categories of potential design defects and one potential manufacturing defect, they have not identified a specific defect and they therefore do not establish a prima facie case of liability under the Kansas Product Liability Act ("KPLA"), K.S.A. §§ 60-3301 et seq.;
(3) plaintiffs' experts have not proposed a safer alternative design; and
(4) the design of the current flow path through the latch switch assembly meets Underwriter's Laboratory safety standards. Id.
Analysis
I. Issues Foreclosed By The Court's Order Of April 21, 2003By order dated April 21, 2003, the Court excluded Martin's opinions, contained in his expert report of August 19, 2002, that an inappropriate switch or an inappropriate connection between a switch and a conductor terminal possibly caused excessive resistance heating in the McCoy dishwasher. Defendants argue that in so excluding Martin's opinions, the Court eliminated plaintiffs' theories that the dishwasher had a design defect which caused excessive resistance heating on account of (a) the connection of the terminals to the microswitches, (b) the microswitches, or (c) the conductors, terminals and microswitches in the door latch assembly. Defendants claim that they are entitled to summary judgment on these theories because plaintiffs have no other evidence of these alleged defects. Plaintiffs disagree with defendants' interpretation of the Court's order and argue that although the Court excluded testimony regarding parts of Martin's report of August 19, 2002, it found sufficient basis for essentially the same opinions in his report of July 3, 2001, and his deposition on October 1, 2002.
Defendants are correct in noting that the Court has excluded Martin's testimony — based on his report of August 19, 2002 — that an inappropriate switch or an inappropriate connection between a switch and a conductor terminal possibly caused the McCoy dishwasher to overheat and start a fire. Furthermore, neither opinion is contained in Martin's report of July 3, 2002. See Report Of James L. Martin (July 3, 2002) Exhibit 2 in Defendants' Memorandum In Support Of Motion to Exclude Testimony Of Plaintiffs' Expert, James L. Martin (Doc. #112) filed March 10, 2003. Plaintiffs cite no record evidence which otherwise supports these theories of liability, and defendants are therefore entitled to summary judgment on these aspects of plaintiffs' claim.
In his report of July 3, 2002, Martin states that "the thermal energy which provides the ignition for the dishwasher fire . . . originates at one . . . or more terminals of the two . . . door switches mechanically linked and interlocked with the dishwasher door latching mechanism" and that according to certain information which Whirlpool provided, the door switches were being used as a thermal fuse, which was "by no means an acceptable thermal safety device." Report Of James L. Martin (July 3, 2002).
Plaintiffs also claim that a design defect caused excessive resistance heating in the current flow path through the conductors, terminals and microswitches. Defendants' motion to exclude did not address this alleged defect and the Court did not eliminate this theory in its order of April 21, 2003. Defendants' summary judgment motion on this point is without merit.
II. Kansas Product Liability Act
As noted, plaintiffs claim three categories of potential design defects (excessive resistance heating or excessive current flow in the door latch switch assembly, and use of two microswitches in the door latch switch assembly functioning as thermal fuses) and one potential manufacturing defect (inadequate attachment and crimping of terminals to conductors in the door latch switch assembly). Defendants argue that they are entitled to summary judgment because plaintiffs have not identified a specific defect which is necessary to establish a prima facie case of liability under the Kansas Product Liability Act ("KPLA"), K.S.A. §§ 60-3301 et seq. Defendants also seek summary judgment because (1) plaintiffs' experts have not proposed a safer alternative design; and (2) the design of the current flowpath through the latch switch assembly meets Underwriter's Laboratory safety standards. Memorandum In Support Of Defendants' Motion For Summary Judgment On Plaintiffs' Product Liability Claim And On Plaintiffs' Punitive Damages Claim ("Defendants Memorandum") (Doc. #148) filed May 5, 2003. Plaintiffs respond that they have sufficiently identified the specific aspect of the dishwasher design that is defective, that they are not required to identify a safer alternative design and that the record reveals a genuine issue of material fact whether the design of the current flowpath meets the Underwriter's Laboratory safety standards. Plaintiffs' Opposition (Doc. #151) at 20, 23, 24.
Regarding plaintiffs' theory that the dishwasher was defective because the two microswitches in the door latch assembly functioned as thermal fuses, defendants argue that the dishwasher was not defective because the microswitches were not intended or designed to be thermal fuses, and neither Underwriter's Laboratories or any other industry standard requires that thermal fuses be put in a dishwasher microswitch or current flow path.
Under Kansas law, the KPLA governs all product liability claims. The underlying purpose of the KPLA is "to consolidate all product liability actions, regardless of theory, into one theory of legal liability."Patton v. Hutchinson Wil-Rich Mfg. Co., 253 Kan. 741, 756, 861 P.2d 1299, 1311 (1993). To present a prima facie strict liability case, plaintiffs must produce evidence to establish three elements: (1) the injury resulted from a condition of the product; (2) the condition was an unreasonably dangerous one; and (3) the condition existed at the time it left defendants' control. Jenkins v. Amchem Prods., Inc., 256 Kan. 602, 630, 886 P.2d 869, 886 (1994) (quoting Mays v. CIBA-Geigy Corp., 233 Kan. 38, 54, 661 P.2d 348, 360 (1983)).
Under Kansas law, a manufacturer has a duty to use reasonable care in designing its products so that they will be reasonably safe for their intended use. Deines v. Vermeer Mfg. Co. 752 F. Supp. 989, 995 (Kan. 1990) (citing Garst v. Gen. Motors Corp., 207 Kan. 2, 19, 484 P.2d 47, 60 (1971)). Kansas has adopted the consumer expectations test as the standard for design defects. See Delaney v. Deere Co., 268 Kan. 769, 772-73, 999 P.2d 930, 934-35 (2000). Kansas courts require "that the product be both defective and unreasonably dangerous." Jenkins, 256 Kan. at 630, 886 P.2d at 886. Under Kansas law, a "defective condition" is defined as "a condition which is unreasonably dangerous to the ordinary user" and "unreasonably dangerous" is defined as
dangerous when used in the way it is ordinarily used considering the product's characteristics and common usage, and is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchased it, with the ordinary knowledge common to the community as to its characteristics.Id. at 635, 886 P.2d at 889.
A. Specific Defect
The elements of a product liability claim "may be proven inferentially, by either direct or circumstantial evidence." Mays, 233 Kan. at 54, 661 P.2d at 360. Nevertheless, generalized assertions that a product is defective are insufficient; plaintiffs must establish the existence of a specific defect to prevail on a defective product claim.Jenkins, 256 Kan. at 635, 886 P.2d at 889. If plaintiffs seek to prove their claim with circumstantial evidence, that evidence "must tend to negate other reasonable causes, or there must be an expert opinion that the product was defective." Id. Indeed, "[b]ecause liability in a products liability action cannot be based on mere speculation, guess or conjecture, the circumstances shown must justify an inference of probability as distinguished from mere possibility." Mays, 233 Kan. at 52, 661 P.2d at 359; Jenkins, 256 Kan. at 634-35, 886 P.2d at 889 ("either a design defect or a manufacturing defect can be proven by circumstantial evidence").
In this case, as noted above, the pretrial order alleges that the McCoy dishwasher had three design defects: (1) excessive resistance heating at the door latch switch assembly through (a) the terminals to the conductors, (b) the connection of the terminals to the microswitches, (c) the microswitches, or (d) the conductors, terminals and microswitches; (2) excessive current flow through the conductors, terminals and microswitches of the door latch switch assembly; or (3) use of two microswitches which functioned as thermal fuses in the door latch switch assembly. Plaintiffs' experts have basically identified the defect as the electrical circuit and the current flow through the door latch switch assembly. Although the pretrial order and expert reports identify several constituent parts of the door latch switch assembly as possible culprits, they clearly identify the door latch switch assembly as the defective component. Plaintiffs have direct evidence of this defect, and circumstantial evidence which tends to negate other reasonable causes of the fire. See, e.g., Rone v. Sharp Elecs. Corp., Inc., 2000 WL 133822, at *2 (Kan. Jan. 14,2000). Their identification of a product defect is sufficient to defeat defendants' summary judgment motion. See Messer v. Amway Corp., 210 F. Supp.2d 1217, 1233 (Kan. 2002).
B. Alternative Design
Defendants seek summary judgment on the theory that plaintiffs do not identify a safer alternative design. Kansas law does not require plaintiffs to propose a feasible alternative design, however, unless defendants claim that the product is unavoidably unsafe. Jenkins, 256 Kan. at 636-37, 886 P.2d at 890; see also Burton v. R.J. Reynolds Tobacco Co., 181 F. Supp.2d 1256, 1261 n. 3 (Kan. 2002) (evidence of safer alternative design not necessary to survive summary judgment on design defect claim). Defendants do not argue that the dishwasher is unavoidably unsafe, and their argument is without merit.
C. Underwriter's Laboratory
Defendants argue that plaintiffs cannot establish a design defect because the design of the electrical circuitry and current flow path through the door latch switch assembly is in accordance with Underwriter's Laboratory Safety and Performance Standards. Plaintiffs respond that a genuine issue of material fact exists whether the design meets the standards because Martin and defendants' expert Ernst Grunewald, have opined that the design does not meet the referenced standard. Plaintiffs provide no record citation which supports this assertion and the Court does not consider it. See D. Kan. Rule 56.1. A manufacturer's compliance with industry standards is irrelevant, however, in a strict products liability case where the determinative question is whether a product is unreasonably dangerous; such standards are germane only in determining a manufacturer's duty of care under a negligence theory. Wheeler v. John Deere Co. 935 F.2d 1090, 1099 (10th Cir. 1991) (applying Kansas law); Rexrode v. Am. Laundry Press Co., 674 F.2d 826, 831-32 (10th Cir. 1982) (same); Raney v. Honeywell Inc., 540 F.2d 932, 938 (8th Cir. 1976); see also McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394, 395 n. 3 (10th Cir. 1990). The Court therefore overrules defendants' motion for summary judgment.
The KPLA does not address industry standards; it addresses legislative regulatory standards, administrative regulatory safety standards and mandatory government contract specifications, and it provides certain defenses when the injury-causing aspect of the product was, at the time of manufacture, in compliance with such standards. If the product does not comply with these standards, it is deemed defective unless the product seller proves by a preponderance of the evidence that its failure to comply was a reasonably prudent course of conduct under the circumstances. K.S.A. § 60-3304.
IT IS THEREFORE ORDERED that Defendants' Motion For Summary Judgment On Plaintiffs' Product Liability Claim And On Plaintiffs' Punitive Damages Claim (Doc. #147) filed May 5, 2003, be and hereby is SUSTAINED in part as to plaintiffs' claim that an inappropriate switch or an inappropriate connection between a switch and a conductor terminal caused the fire. Defendants' motion is otherwise OVERRULED.
As to plaintiffs' negligence and punitive damages claims, defendants' motion for summary judgment is moot.