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From Products Liability Law Daily, October 23, 2013

Insurer established bathroom fan as cause of house fire by ruling out other potential causes

By John W. Scanlan, J.D.

An insurer’s experts were able to establish legal causation in claims of defective design and manufacture of a bathroom exhaust fan by ruling out other potential causes of a house fire, a U.S. District Court for the Western District of Kentucky held in denying two manufacturers’ motion for summary judgment (Kentucky Farm Bureau Mutual Insurance Co. v. Broan-Nutone, LLC, October 21, 2013, McKinley, J.). The testimony of two of the insurer’s expert witnesses was also found to be admissible.

Background. A house owned by Patrick and Natalie Moorcroft and insured by Kentucky Farm Bureau Insurance Company caught fire, apparently beginning in the master bathroom and spreading to the roof. After investigating the accident, the insurer brought manufacturing and design defect claims against Broan-Nutone, the manufacturer of the bathroom’s exhaust fan, and Jakel Motors, the manufacturer of the fan’s motor. The two manufacturers moved to exclude the testimony of Kevin Lewis and William Mers Kelly, two of the insurer’s experts, and also moved for summary judgment, asserting that the insurer had not established legal causation.

Expert testimony. The testimony of the insurer’s two experts was admissible because it was reliable and relevant. The manufacturers asserted that neither expert should be allowed to testify regarding a crimp studied by the experts because they did not provide a proper chain of custody, but both experts and the manufacturers’ expert were present when the evidence was collected.

The manufacturers argued that neither of the insurer’s experts identified the crimp as either an 11-strand neutral crimp, which was not subject to resistance heating, or a 16-strand ground crimp, which was subject to heat resistance and electric current, and that the experts should have performed a cross-sectioning test to determine the number of strands. Further, the manufacturers asserted that a visual inspection of the crimp was not sufficient to determine whether it was the cause of the fire. However, one of the insurer’s experts testified that cross-sectioning would not reveal sufficient information because of the amount of damage, and the court determined that the type of testing required was a question of the weight given to the testimony, not its admissibility. The court noted that an expert used not only visual inspection but also the statements by the homeowners to determine the cause of the fire.

Although the manufacturers argued that one of the insurer’s experts did not explain how the manufacturing process would have created a problem with quality control, they had no arguments or factual basis for this theory.

The manufacturers asserted that one of the experts failed to eliminate a corner light in the attic as a potential cause for the fire, based on the testimony of one of their experts who stated that he probably would have investigated it as a possible cause and probably would have taken the light as evidence. However, experts from both sides were present during the collection of evidence, and neither took the light at that time; furthermore, one of the homeowners testified that the light was off at the time of the fire, and a manufacturer’s expert testified that it could be ruled out as a potential source for the fire if the switch were in the off position. The question of the corner light as a potential alternative cause of the fire was an issue of the weight of the evidence, not admissibility.

Causation. The insurer was able to establish legal causation for the fire because it created a reasonable inference that the fire was caused by a defect in the fan. Because the fan had been in use for over five years, it was presumed not defective, but the insurer provided sufficient evidence to rebut this presumption. Although neither of the insurer’s experts identified a specific mechanism in the fan that caused the fire, in that each offered a different theory, the court found that they had successfully ruled out other potential causes. An expert for the manufacturers identified three potential alternative causes of the fire, including the branch wiring in the attic, the eve light near the fan, and multiple melted conductors from the attic; however, the court agreed with the insurer that each of these causes was excluded by the testimony of the insurer’s experts or one of the homeowners.

The case number is 1:11CV-66-JHM.

Attorneys: John C. Miller (Bertram, Cox & Miller LLP) for Kentucky Farm Bureau Mutual Insurance Company. James J. Englert (Rendigs, Fry, Kiely & Dennis LLP) for Broan-Nutone, LLC and Jakel Motors Incorporated.

Companies: Kentucky Farm Bureau Mutual Insurance Company; Broan-Nutone, LLC, and Jakel Motors Incorporated.

MainStory: TopStory DesignManufacturingNews ExpertEvidenceNews HouseholdProductsNews KentuckyNews

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