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Howard v. Bosch Thermotechnology Corp.

United States District Court, E.D. Missouri, Eastern Division

May 4, 2018

THOMAS E. HOWARD, JR., et al., Plaintiffs,



         Plaintiffs Thomas E. Howard, Jr. and Janice K. Howard claim that the defective design of a water heater manufactured, designed, and sold by defendant Bosch Thermotechnology Corp. caused a fire that destroyed their home in November 2013. They bring this products liability action in diversity against Bosch, asserting claims of strict liability for defective design, strict liability for failure to warn, and negligent design and failure to warn. Bosch seeks to exclude the opinion evidence of the Howards' two expert witnesses and also moves for summary judgment. I will grant Bosch's motions to exclude. Because without this opinion evidence the Howards have no evidence from which a reasonable jury could find that a defect in the water heater proximately caused the fire, I will grant summary judgment to Bosch.


         On November 14, 2013, a fire destroyed a lake house owned by plaintiffs Thomas and Janice Howard. Plaintiffs were not at the house at the time of the fire, having left the property three days earlier on November 11. Shortly before they left the house, Janice washed a few dishes in the kitchen sink using hot water. Thomas had already turned off the water intake to the house.[1]

         The fire was reported in the early morning hours of November 14. James Doyle, the fire marshal of the Lake Ozark Fire Protection District, was the incident commander on the fire. The fire was brought under control in about seventy-five minutes, and the last fire unit left the scene about two hours later. Heavy equipment moved debris later that day so that remaining hidden fires could be extinguished.

         During the course of his investigation, Doyle determined that the fire started in the utility room on the lower level of the house. Based on his observations of that area, Doyle suspected that the water heater caused the fire. After Doyle interviewed the Howards regarding their conduct before leaving the house, he concluded that the water heater indeed caused the fire and reported this conclusion in his fire inspection report. Specifically, Doyle reported that the circumstance of Thomas turning off the water intake and Janice continuing to use hot water

caused the hot water heater to be in the on position with no water to heat or keep the pipe cool (creating [an] air pocket) that I believe heated the pipe to failure and being against combust able [sic] walls and material over time cause the fire with no one home or close to see and given the time of day the fire [was] able to advance without notice. [G]iven this theory and the closeness to the area of origin I can not disprove it as a possible cause and find the incident to be ruled accidental and close the file.

(ECF #28-8, Doyle Report at p. 13.)

         Plaintiffs secured Dr. Kelly Homan, an associate professor of mechanical engineering, to analyze the Bosch water heater and assess its potential as a fire hazard. Homan reviewed Doyle's report, examined the remains of the original water heater, examined a new water heater unit, and searched the internet for similar incidents of fire. Applying engineering analyses with respect to heat flux, surface temperatures, and heat transfer in relation to radiant woodstoves and flue vents, as well as analyses regarding combustion temperatures of various surfaces including gypsum wallboard, cellulosic wood material, maple, redwood, wallpaper, and carpet, Homan concluded that if the Bosch water heater were to go into an overheat event, it could produce heat flux on a mounting surface at levels sufficient to cause a fire. Homan then concluded that it was more likely than not that the Bosch water heater caused the Howard fire. (ECF #48-1, Homan Report.)

         Homan did not claim that any system or component within the water heater unit failed, and he could not conclude that the water heater went into an overheat event. Homan based his conclusion that the fire originated at the location of the water heater on Doyle's conclusion made in the fire investigation report.

         Bosch moves to exclude the expert opinions of both Doyle and Homan. Bosch also moves for summary judgment, arguing, inter alia, that without expert opinion evidence, the Howards cannot prove that the water heater caused the fire.


         In Missouri, to prevail on a strict liability products defect claim, a plaintiff “‘must prove that the product was defective and dangerous when put to a reasonable use anticipated by the manufacturer and that the plaintiff sustained damage as a direct result of the defect.'” Sappington v. Skyjack, Inc., 512 F.3d 440, 446 (8th Cir. 2008) (quoting Peters v. Gen. Motors Corp., 200 S.W.3d 1, 17 (Mo.Ct.App. 2006)). A claim alleging design defect involves a product that, by nature of its design, is unreasonably dangerous, regardless of whether or not a warning is given. Moore v. Ford Motor Co., 332 S.W.3d 749, 757 (Mo. banc 2011); Smith v. Brown & Williamson Tobacco Corp., 275 S.W.3d 749, 791-92 (Mo.Ct.App. 2008).

         For a strict liability failure-to-warn claim, a plaintiff must prove, inter alia, that the defendant's product was unreasonably dangerous at the time of sale when put to its reasonably anticipated use without knowledge of its characteristics, that the defendant failed to include an adequate warning, and that the plaintiff was damaged as a result of the lack of adequate warning. Pitman v. Ameristep Corp., 208 F.Supp.3d 1053, 1061-62 (E.D. Mo. 2016). “The last element requires both the product without the warning caused the plaintiff's injuries and the warning would have altered the behavior of those involved in the accident.” Id. at 1062 (citing Arnold v. Ingersoll-Rand Co., 834 S.W.2d 192, 194 (Mo. banc 1992)).

         “To prove a negligent design claim under Missouri law, a plaintiff must show that the defendant breached its duty of care in the design of a product and that this breach caused the injury.” Stanley v. Cottrell, Inc., 784 F.3d 454, 463 (8th Cir. 2015). A claim alleging negligent failure to warn focuses on what the manufacturer knew. For such a claim, a plaintiff must show that the defendant failed to use ordinary care to “adequately warn of the risk of harm” from the alleged defect and that, “as a direct result of such failure, . . . plaintiff sustained damage.” Johnson v. Auto Handling Corp., 523 S.W.3d 452, 465, 466 (Mo. banc 2017).

         Whether proceeding on a theory of negligence or strict liability, a plaintiff must prove that the defect in the product or the negligence of the defendant in the design proximately caused the plaintiff's injuries. Strong v. Am. Cyanamid Co., 261 S.W.3d 493, 506 (Mo.Ct.App. 2007), overruled on other grounds, Badahman v. Catering St. Louis, 395 S.W.3d 29 (Mo. banc 2013); Willard v. Bic Corp., 788 F.Supp. 1059, 1063 (W.D. Mo. 1991). Without evidence of defect, a plaintiff cannot establish that a defect proximately caused his injuries. In such circumstances, summary judgment for the defendant manufacturer is appropriate. Pro Serv. Auto., L.L.C. v. Lenan Corp., 469 F.3d 1210, 1216 (8th Cir. 2006); Fireman's Fund Ins. Co. v. Canon U.S.A., Inc., 394 F.3d 1054, 1060-61 (8th Cir. 2005).

         Although expert testimony is not necessarily required in a products liability case, it is necessary if determining a relevant factual issue involves information that is so complex or technical that no fact finder could resolve the issue without help. Pro Serv. Auto., 469 F.3d at 1214; Stone v. Mo. Dep't of Health & Senior Servs., 350 S.W.3d 14, 21 (Mo. banc 2011). The Howards in this case allege that the defective design of the Bosch water heater caused it to overheat and release heat at such levels to combust the wall on which it was mounted. Because of the complexities involved in linking a component failure of the water heater to the release of combustible heat levels to the surrounding environment, a lay jury would not possess the experience or knowledge necessary to determine causation. Therefore, expert opinion as to causation is required in order for the Howards' claims to survive summary judgment. Pro Serv. Auto., 469 F.3d at 1214.

         The Howards proffer the expert opinions of Fire Marshal Doyle and Dr. Homan to support their allegation that the defective design of the Bosch water heater caused the fire. For the following reasons, I will exclude these opinions. Because the Howards have no other evidence of causation, I will grant Bosch summary judgment on the Howards' claims.

         A. James Doyle

         1. Disclosure

         Bosch argues first that I should exclude Doyle's expert opinion and evidence because the Howards did not disclose him as an expert witness. I agree.

         I may exclude from evidence at trial any matter that was not properly disclosed in compliance with my pretrial orders. Brooks v. Union Pac. R. Co.,620 F.3d 896, 899 (8th Cir. 2010). This applies to a party's failure to disclose an expert witness as required by a pretrial scheduling order, including non-retained fact ...

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