United States District Court, E.D. Missouri, Eastern Division
THOMAS E. HOWARD, JR., et al., Plaintiffs,
BOSCH THERMOTECHNOLOGY CORP., Defendant.
MEMORANDUM AND ORDER
CATHERINE D. PERRY, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.)
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
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
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.
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).
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)).
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).
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).
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.
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.
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.
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 ...