                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 17a0293n.06

                                          Case No. 16-5284

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT

STEPHEN and ALEXANDRIA                               )                           FILED
SCANLAN, Individually and                            )
                                                                           May 24, 2017
as Administrators of the                             )
                                                                       DEBORAH S. HUNT, Clerk
Estate of Sawyer Scanlan,                            )
                                                     )
       Plaintiffs-Appellants                         )
                                                     )       ON APPEAL FROM THE UNITED
v.                                                   )       STATES DISTRICT COURT FOR
                                                     )       THE WESTERN DISTRICT OF
SUNBEAM PRODUCTS, INC. d/b/a                         )       KENTUCKY
Jarden Consumer Products,                            )
                                                     )       OPINION
       Defendant-Appellee.                           )


       BEFORE: SUTTON and STRANCH, Circuit Judges; STEEH, District Judge.*

       STEEH, District Judge.       This case asks the question whether a space heater was

unreasonably dangerous as designed, such that the manufacturer should be held liable for

consequences resulting from a foreseeable use. Stephen and Alexandria Scanlan, individually

and as administrators of the estate of Sawyer Scanlan, brought this product liability action

against Sunbeam Products, Inc., the manufacturer of the Model SFH111 space heater. The

Scanlans alleged that the space heater was defective and unreasonably dangerous, causing the

death of their son when it heated his room to an excessive temperature. The Scanlans also

alleged Sunbeam violated the Kentucky Consumer Protection Act, Ky. Rev. Stat. § 367.170, by

engaging in unfair, false, misleading, or deceptive acts or practices in the conduct of its trade or


       *
         The Honorable George Caram Steeh, United States District Judge for the Eastern
District of Michigan, sitting by designation.
No. 16-5284, Scanlan, et al. v. Sunbeam


commerce. The district court granted summary judgment to the defendant on both claims.

Because plaintiffs cannot show that defendant consciously disregarded a known risk of the

alleged defects, we AFFIRM the district court’s grant of summary judgment on the claimed

violations of the Kentucky Consumer Protection Act. When viewed in the light most favorable

to plaintiffs, a material issue of fact precludes summary judgment on the claim that the heater

was unreasonably dangerous because of a defective design; thus we REVERSE and REMAND

for further proceedings.

                                     I.      BACKGROUND

       In December of 2010, Stephen Scanlan purchased a Sunbeam fan-forced heater, Model

SFH111 (“SFH111”), for less than $20. Mr. Scanlan could not remember if he fully read the

instructions because he “knew how to operate an electric space heater,” but he may have

“glanced over” them and read the box. R. 83-3 at 143. On the night of December 15, 2016, Mr.

Scanlan put his two-and-a-half year old son Sawyer to bed in his crib at approximately 9:00 p.m.

The bedroom was ten feet by eleven feet and had one window which was covered in plastic to

provide insulation. Mr. Scanlan had used the heater on previous nights, but this night was

colder, so he turned the thermostat dial “up a tiny bit” to the mid-range. Id. at 24-25, 27. After

setting the heater, Mr. Scanlan closed the door to Sawyer’s bedroom. Id. at 36.

       Mrs. Scanlan got up several times during the night to feed the couple’s infant. R. 85-4 at

58. She listened for Sawyer, who was in the next room, but did not hear anything. Id. at 65.

Nobody opened the door to Sawyer’s bedroom until the next morning around 10:00 a.m., when

Mrs. Scanlan entered Sawyer’s room and found him unresponsive. Id. at 66-67, 70-71.

       EMS official Robert Thompson pronounced Sawyer dead on the scene.               Paramedic

Angele Rarden noted in her report that the “room was very warm.” R. 93-1 at 3. An autopsy




                                                2
No. 16-5284, Scanlan, et al. v. Sunbeam


was performed and Sawyer’s condition was found to be consistent with dehydration.

The medical examiner concluded, “The death of this 2 ½ year-old male child, Sawyer Scanlan, is

attributed to heat exposure due to confinement in a small room with an electric space heater.”

R. 52-7 at 8.

        On the top of the SFH111 are two dials. The right dial is the Mode Control, which

enables a user to switch between off, “low heat” at 1000 watts, “high heat” at 1500 watts, and the

fan-only setting without heat output. R. 81-8 at 3. The left dial is the Thermostat Control, also

referred to as the auto-shutoff mechanism, which consists of a bimetal thermostat called the

Tower A349. This dial can turn 270 rotational degrees and is marked with 10 progressively

larger dots and a picture of a thermometer. Id.

        The instruction manual for the SFH111 instructs the user to start the heater by turning the

Thermostat Control fully clockwise to the highest position, or the largest dot. When the desired

room temperature level is reached, the user is instructed to turn the Thermostat Control counter-

clockwise toward the lowest position, or the smallest dot, stopping when the fan stops operating.

At this point, the heater’s thermostat is set to automatically maintain the chosen temperature

level by cycling off and on. Id.

        The instruction manual provides the following cautions:
        When using electrical appliances, basic safety precautions should always
        be followed to reduce the risk of fire, electric shock, and injury to persons,
        including the following:

        1. Read all instructions before using this heater.
                                            ....

        6. Extreme caution is necessary when any heater is used by, or near
        children or invalids, and whenever the heater is left operating and
        unattended.
                                            ....
Id. at 2.


                                                   3
No. 16-5284, Scanlan, et al. v. Sunbeam


       Mr. Scanlan did not rotate the Thermostat Control to the highest setting and wait for

Sawyer’s room to reach the desired comfort level, then lower the Thermostat Control until

operation ceased, as directed in the instructions. Rather, Mr. Scanlan started the SFH111 with

the Thermostat Control at the mid-range and left the room with the heater operating and the room

still warming. R. 83-3 at 27-29.

       The instruction manual does not warn against risks resulting from exposure to ambient

heated air from the SFH111. The space heater itself does not display any instructions or

warnings. The SFH111’s box says it is “Best Suited for Active Homes (cool to the touch).”

R. 91-14 at 1. The box has two pictures of young children. Id. at 2. The box advises that the

space heater has an “Auto Shut Off” and that the “unit automatically turns heater off if it over

heats.” Id. at 1. Between 2004 and 2010, defendant and its successor The Holmes Group

manufactured and sold 4,657,360 SFH111 and HFH1111 heaters. R. 81-19 at 1. Defendant has

no record of any other complaints “about a personal injury or death resulting from exposure to

heated ambient air from this product model.” R. 81-7 at 11.

       Plaintiffs filed their complaint in Jefferson County Kentucky Circuit Court, and

defendant removed the case to the United States District Court for the Western District of

Kentucky, invoking the court’s diversity jurisdiction. 28 U.S.C. §§ 1332, 1441 and 1446.

Plaintiffs alleged that the SFH111 was defective and unreasonably dangerous as its auto shut off

malfunctioned, allowing the heater to operate continuously and heat Sawyer’s room to

“increasingly fatal temperatures,” causing Sawyer to die from heat exposure. R. 45 at 3. Among

plaintiffs’ theories of liability was that the heater was defective because defendant failed to

adequately warn consumers of the danger presented in the ordinary and foreseeable use of the

       1
         The SFH111 and HFH111 have different model numbers but they are technologically
the same product.


                                               4
No. 16-5284, Scanlan, et al. v. Sunbeam


SFH111. Id. at 5. Plaintiffs further alleged that defendant violated the Kentucky Consumer

Protection Act “by engaging in unfair, false, misleading, or deceptive acts or practices in the

conduct of trade or commerce.” Id. at 9.

       In granting defendant’s motion for summary judgment, the district court concluded that

Sunbeam was entitled to a presumption under Kentucky law, Ky. Rev. Stat. § 411.310(2), which

presumes a product not to be defective where it conforms to the generally recognized and

prevailing industry standards at the time of manufacture. The court then held that the plaintiffs

had not shown a genuine issue of material fact concerning whether the SFH111 was

unreasonably dangerous, such that an ordinarily prudent manufacturer would not have put it on

the market.

       As for the failure to warn theory, the court found that the plaintiffs failed to establish a

genuine issue of material fact that Mr. Scanlan would have behaved differently if the instruction

manual, the box, or the space heater itself had a warning regarding the ability of the SFH111 to

heat a room to very high temperatures. The district court reasoned that Mr. Scanlan admitted he

did not pay close attention to any of those items since “he already knew how to operate an

electric space heater.” R. 113 at 18. The experts all agreed that if Mr. Scanlan had followed the

directions provided with the heater “and turned down the Thermostat Control after the room

reached a comfortable temperature, Sawyer likely would have survived.” Id. at 19-20. For this

reason, the court concluded that a failure to warn did not lead to Sawyer’s death.

       Finally, the court granted defendant’s motion for summary judgment on plaintiffs’

Kentucky Consumer Protection Act claim, holding that “Plaintiffs have not alleged facts upon

which a reasonable jury could find Sunbeam intentionally, knowingly, or in bad faith took

malign actions affecting the Plaintiffs.” Id. at 21.




                                                  5
No. 16-5284, Scanlan, et al. v. Sunbeam


       Plaintiffs timely filed this appeal.

                                        II.    ANALYSIS

       This Court conducts a de novo review of the district court’s grant of summary judgment.

Thom v. Am. Standard, Inc., 666 F.3d 968, 972 (6th Cir. 2012). Summary judgment is warranted

“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). The movant bears the initial

burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). “Once the moving party satisfies its initial burden, the burden

shifts to the nonmoving party to set forth specific facts showing a triable issue of material fact.”

Mosholder v. Barnhardt, 679 F.3d 443, 448-49 (6th Cir. 2012) (citation omitted). “The mere

existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient

[to defeat a properly supported motion for summary judgment]; there must be evidence on which

the jury could reasonably find for the plaintiff.” Id. at 449 (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 252 (1986)). “In reviewing the district court’s decision to grant summary

judgment, we must view all evidence in the light most favorable to the nonmoving party.”

Kleiber v. Honda of Am. Mfg., Inc., 485 F.3d 862, 868 (6th Cir. 2007).

A. Kentucky’s Statutory Presumption

       Under Kentucky law, manufacturers are entitled to a presumption that their product is not

defective if “the design, methods of manufacture, and testing conformed to the generally

recognized and prevailing standards or the state of the art in existence at the time the design was

prepared, and the product was manufactured.” Ky. Rev. Stat. § 411.310(2). If the presumption

applies, liability for harm caused by the product may not be imposed unless the presumption is

overcome by a preponderance of evidence. Id.; Ingersoll-Rand Co. v. Rice, 775 S.W.2d 924,




                                                 6
No. 16-5284, Scanlan, et al. v. Sunbeam


928 (Ky. App. 1989). With or without the presumption, the burden of showing that the product

is defective is borne by plaintiffs.

        Underwriters Laboratories (“UL”) tested the SFH111 and found it to be in compliance

with multiple manufacturing, design and testing standards set out in UL 1278, which is a safety

standard for moveable and wall- or ceiling-hung electric heaters. UL 1278 requires quality

testing on things such as power input, wattage, RPM, noise level, motor temperature, start-up

voltage, voltage withstand, and leakage current. R. 91-16 at 114-15. Testing examines the

temperature of the cord, knobs and the exterior surface of the heater and grill when the heater is

used correctly. Testing is also done on some abnormal use, such as cord strength when the

heater is carried by the cord. Id. Further testing includes “continuous on” which leaves the

heater running for 1000 hours to see if it still operates correctly, and cycle testing which turns it

on and off while looking for expansion and contraction of connections as the unit heats and

cools. Id. at 115, 118. The terry cloth drape test makes sure the heater turns off if a consumer

tries to dry fabric on the unit. Id. at 116. The heater is placed against a wall to see if it shuts off.

Id. at 87. The packaging is tested for its ability to protect the heater if the box is dropped. Id. at

116. Testing is done on the thermostats and heater cutoff for quality assurance and proper

performance. Id. The adjustable thermostat accuracy test checks for accuracy of the room

temperature as the heater cycles on and off. Id. at 119. The plaintiffs’ expert, William Murphy,

agreed that the heater met or exceeded the requirements of UL 1278. R. 81-10 at 142.

        All of the UL 1278 tests are concerned with general performance and safety of the heater

in terms of fire, burns, shock and other injuries to the consumer as the heater is typically used or

misused by the consumer. While UL 1278 tests the performance of the thermostat, it does not

require testing to determine whether the heater will overheat a space to a dangerously hot




                                                   7
No. 16-5284, Scanlan, et al. v. Sunbeam


temperature. R. 91-13 at 4340-41. Mr. Vernaglia, project engineer of the SFH111, explained

that there is no compliance body or standard that tests the ambient temperature in a room when a

heater is being used because it is up to the user to determine the desired temperature. R. 91-16 at

125.

       Even though UL 1278 does not test for a heater’s ability to overheat a room, it is

generally considered to be the recognized safety standard for portable space heaters. While there

may be more than one safety standard, plaintiffs have not identified another standard that would

have required testing of a heater’s effect on the ambient temperature of a room. Therefore, the

statutory presumption that the SFH111 was not defective applies. Furthermore, the district court

correctly applied the statutory presumption in this case by giving plaintiffs the opportunity to

rebut the presumption with a showing by a preponderance of the evidence that the space heater

was defective. Boon Edam, Inc. v. Saunders, 324 S.W.3d 422, 432 (Ky. Ct. App. 2010) (citing

Leslie v. Cincinnati Sub-Zero Prods., Inc., 961 S.W.2d 799, 803 (Ky. Ct. App. 1998)); Murphy

by Murphy v. Montgomery Elevator Co., 957 S.W.2d 297, 300 (Ky. Ct. App. 1997).

B. Defective Design

       1. Unreasonably Dangerous Product

       Where a manufacturer is accused of designing a defective product, whether under a strict

liability or negligence theory, the consumer must prove that the product was unreasonably

dangerous. McCoy v. Gen. Motors Corp., 47 F. Supp. 2d 838, 839 (E.D. Ky. 1998); Worldwide

Equip. Inc. v. Mullins, 11 S.W.3d 50, 55 (Ky. Ct. App. 1999). The test in Kentucky presumes

that the manufacturer knows the qualities and characteristics of the product, and asks whether the

product creates “such a risk” of an accident of the general nature of the one in question “that an

ordinarily prudent company engaged in the manufacture” of such a product “would not have put




                                                8
No. 16-5284, Scanlan, et al. v. Sunbeam


it on the market.” Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780 (Ky. 1984)

(quoting Nichols v. Union Underwear Co., 602 S.W.2d 429, 433 (Ky. 1980)).

       Plaintiffs’ product liability claim alleges that the SFH111 had a defective design because

it was capable of heating a room to temperatures “incompatible with human life.” The “comfort

zone” for normal human activity is considered to be roughly 60 to 80 degrees Fahrenheit. R. 91-

11 at 99. Expert testimony in this case clearly establishes that the SFH111 can heat a small room

to a very high temperature, above 100 degrees Fahrenheit, if the user turns the Temperature

Control to mid-range and does not turn the Temperature Control down. The question is whether

the heater’s ability to heat a small room to temperatures in excess of 100 degrees when used in

this manner, given its advertising and warnings, makes the SFH111 unreasonably dangerous

such that a prudent manufacturer would not have put it on the market.

       In order to evaluate whether the SFH111 was defective, one must understand how the

Tower A349 thermostat was designed to work. The Tower A349 is a bimetal thermostat, and it

is the only component in the SFH111 that the Scanlans argue is defective.2 A bimetal is a strip

or coil of two metals attached to one another that expand at different rates as temperature

increases. The two metals’ different rates of expansion lead the bimetal strip or coil to bend,

allowing the bimetal to act as a circuit breaker. When the internal temperature of the heater rises

to a certain level, the bimetal will bend enough to create a gap in the heater’s circuit, causing it to

turn off. When the temperature cools enough for the bimetal to return to its original position, it

reconnects the circuit loop, causing the heater to resume blowing heated air. The Thermostat

Control (the dial with the picture of a thermometer) does not set the external air temperature of

the room because the SFH111 does not have a thermometer that measures external air
       2
         While the Tower A349 is the only component the Scanlans identify as defective, they
also point to the design of the SFH111 as a whole, including information contained on its
packaging and in its operating manual.


                                                  9
No. 16-5284, Scanlan, et al. v. Sunbeam


temperature. Instead, the Thermostat Control sets the internal temperature at which the bimetal

breaks the circuit and thus engages the auto-shutoff mechanism.

       The A349 schematic the Scanlans present as evidence links the angle of the Thermostat

Control with the temperature threshold of the bimetal at which the circuit will be broken.

Sunbeam’s liability expert Robert Miller (“Miller”) explained that the Thermostat Control dial

operates linearly. In the case of the SFH111, this means that each of the ten dots on the

Thermostat Control dial represents a 15 degree increase in temperature on the bimetal. For

example, Dot 5 corresponds to a bimetal threshold of approximately 128 degrees; when the dial

is turned to Dot 7, the A349 sets the threshold at 158 degrees. These are internal temperatures of

the bimetal, not the external air temperature of the room.3 The Scanlans argue that the A349

schematic itself provided Sunbeam with all the data it needed to calculate the room temperature

at which the heater would stop heating at each dot setting on the Thermostat Control.

       Miller explained that there is a reason why the type of thermostat used by the SFH111

and other heaters permit very high temperature ranges on the bimetal. The temperature on the

bimetal will be higher than the general temperature in the room because the resistive heat from

current flowing through the thermostat component “can cause a 45°F temperature rise on the

body of the thermostat bimetal, with no other heat sources contributing to the temperature rise.”

R. 79-7 at 12-13, 17. Resistive heat is impacted by the voltage of the outlet, duration of use, and

the wattage chosen by the user. These additional sources of heat are factors that help explain

why bimetal thermostats are calibrated to temperatures far above what users want as their room

temperatures. In addition, small space heaters of this type are used in a wide variety of settings.

       3
         The A349 schematic labels the temperatures as room temperatures, but as the court
understands the operation of the thermostat in the SFH111 as only measuring temperature using
the bimetal, it only makes sense that the diagram must be referring to the temperature on the
bimetal.


                                                10
No. 16-5284, Scanlan, et al. v. Sunbeam


Id. at 6, 13. They are used in small rooms where it is possible to heat the whole room to roughly

the same temperature. They are also used in large spaces and in semi-enclosed spaces where the

ambient temperature immediately around the heater may be far higher than the overall room

temperature.    The utility of a heater with a high range and a flexible thermostat was

demonstrated by Miller when he tested the SFH111 under a desk. The temperature behind the

heater rose to over 125 degrees, causing the heater to cycle off at Dot 8 ¾, while the temperature

three feet away remained at 64 degrees. Id. at 19.

       Prior to Sawyer’s death, defendant did not test how hot the SFH111 could make a room.

R. 91-13 at 4. After the Scanlans brought this lawsuit, Miller tested a SFH111 in Sawyer’s

room. When the heater was turned on with the Temperature Control set on Dot 7, the space

heater ran continuously without cycling off. R. 91-11 at 71-72. After six hours, the temperature

in the room was almost 110 degrees mid-way up a wall, 115 degrees on the slanted section of

ceiling above the crib, and 120 degrees six inches off the ceiling in the center of the room. Id. at

72. Miller testified that he had never before seen a heater heat a room to 120 degrees. Id. at 236.

As discussed below, Miller conducted testing on other heaters, both in connection with being

hired as an expert for this lawsuit, as well as in his previous employment. On appeal the

Scanlans argue that, assuming the other heaters Miller tested also operated linearly, they would

have only heated Sawyer’s room to 77 degrees if their temperature control was set at seventy

percent, as opposed to 120 degrees when the Temperature Control on the SFH111 was set at

seventy percent.

       The overarching question is whether an ordinarily prudent company would have put the

SFH111 to market, while advertising it as having overheat protection and auto shut-off features,

with no warnings or instructions on the heater itself and without any warnings that it can heat a




                                                11
No. 16-5284, Scanlan, et al. v. Sunbeam


room to deadly conditions if left on a middle setting. Under Kentucky law, factors bearing on

the question whether the product was manufactured “in a defective condition unreasonably

dangerous” include whether there is a feasible alternative design, the obviousness of the danger,

the adequacy of warnings and instructions, misuse, subsequent maintenance and repair, ordinary

customer expectations, and the product’s inherently unsafe characteristics. McCullough, 676

S.W.2d at 780-81; Nichols, 602 S.W.2d at 433. The facts of an individual case will determine

which factors are relevant to the decision whether a product is unreasonably dangerous. Id.

Ultimately, the factors are considered together in making this determination.

               a. Industry Custom or Practice

       Sunbeam’s expert Miller performed a Comfort Level Test in which he examined the

Holmes HFH1114 space heater with the A349 thermostat, as well as the same heater with a

different comfort thermostat, and five similarly constructed competitor 1500 watt fan heaters

equipped with adjustable comfort thermostats. The Comfort Level Test ran each heater for one

hour in a small enclosed room on the highest heat setting with the thermostat set at the highest

position. After one hour the thermostats were turned down until the heaters cycled off. The

heaters continued to run, cycling on and off, for two more hours. Then the heaters were turned

back to the highest setting and allowed to run for two more hours. Miller concluded that the

“results demonstrate that the two Sunbeam heaters perform similarly to the competitor heaters,

and in fact produced lower room temperatures than four of those competitor heaters.” R. 79-7 at

8.

       Plaintiffs find support for their theory in the test results discussed by Miller while

working for his previous employer, Lakewood Engineering & Manufacturing. At Lakewood,

       4
        The Sunbeam SFH111 was renamed the Holmes HFH111 but is technologically
unchanged.


                                                12
No. 16-5284, Scanlan, et al. v. Sunbeam


Miller was involved with testing Lakewood heaters against competitor heaters. Miller testified

that testing took place only a few times during the 23 years he was employed at Lakewood, the

first time around 2000 and the last time in 2005. Miller’s testimony at his deposition was based

on his recollection almost 10 years later. Each heater was tested by putting it in a small unused

sauna that was on the Lakewood property and letting it run for at least five hours with the

thermostat fully open. The purpose of the test was to compare the efficiency of the 1500 watt

heaters made by Lakewood and those of its competitors. To the best of Miller’s memory, the

maximum room temperature that was achieved by any of the heaters tested by Lakewood was in

the “general area” of 110 degrees Fahrenheit. R. 91-11 at 243.

       The Lakewood testing was conducted in a small sauna, which Miller testified was better

insulated than Sawyer’s bedroom. Id. at 244. Therefore, one would expect that if the SFH111

had been tested in the Lakewood sauna on Dot 7, it would have heated the ambient air to more

than the 110-120 degree temperatures measured by Miller in Sawyer’s room before turning off.

       To be sure, there are weaknesses in the Scanlans’ reliance on the Lakewood testing. For

starters, the 110 degree figure came from Miller’s general recollection almost a decade after the

testing was last done, and the testimony is not supported anywhere else in the record.

Nevertheless, Miller is defendant’s expert, and because he conducted both tests and admitted

facts tending to support plaintiffs’ theories of liability, this evidence cannot be discounted as

biased. Miller further testified that he had never seen another heater heat a room to 120 degrees,

even in the ten years since he conducted the Lakewood tests.

       The Lakewood tests were set up to test maximum heat output of heaters without being

limited by an internal thermometer threshold like the A349 bimetal. The heaters were allowed to

run for 5-8 hours. In contrast, Miller’s controlled testing conducted for this lawsuit set the




                                               13
No. 16-5284, Scanlan, et al. v. Sunbeam


thermostat to Dot 7, but only let the heaters run for two hours. While neither test compares

similar heaters to the SFH111 under the same circumstances present in Sawyer’s room, taken

together the tests and Miller’s testimony provide sufficient evidence for a jury to find that the

A349 thermometer is defective for failing to shut off, when set at Dot 7, before the ambient

temperature in the room reached 110-120 degrees.

       A reasonable juror could conclude from this evidence that a heater that permits a room to

reach 110-120 degrees when the dial is turned to Dot 7 is defective, while a heater that permits

similar temperatures while on its maximum setting is not. This is because a consumer could

foreseeably expect that the heater will heat a room to a lower temperature, and is therefore safer

to use, at Dot 7 than at its maximum setting. Of course, consumer expectations are a relevant

criterion under Kentucky law.

               b. Alternate Design

       The feasibility of making a safer product is a factor that may inform whether an

ordinarily prudent manufacturer would have placed the SFH111 on the market knowing that it

can heat a room to a very high temperature. McCullough, 676 S.W.2d at 780-81. Plaintiffs in

this case presented evidence of several alternative designs which they allege were safer, practical

and feasible, and which would have prevented the death of Sawyer.

       First, defendant could have used a digital thermometer to limit a room’s ambient

temperature to between 60 and 80 or 85 degrees. Plaintiff’s expert witness, safety engineer

Craig Clauser, opined that the heater could have been designed such that the highest setting

would cause shut off when incoming room temperature air was at 85 degrees and the lowest

setting would cause shut off when incoming air temperature was at 60 degrees. For this to work,

the housing around the thermostat would have to be opened to expose the bimetallic strip directly




                                                14
No. 16-5284, Scanlan, et al. v. Sunbeam


to the incoming air from the room as opposed to air from inside the heater, and the thermostat

would have to be shielded from radiant heat from the coils. R. 52-4 at 6. Installing a digital

thermostat would have cost between $1.00 and $1.50 per unit. R. 91-24 at 59. Plaintiffs suggest

that defendant’s own SFH442 was a similarly sized and priced space heater that used such a

digital thermometer. According to Miller, if a user turned the thermostat dial to the half-way

point, the SFH442 would heat a small room to an ambient temperature of 70 degrees Fahrenheit.

R. 91-11 at 99. In comparison, the SFH111 heats the bimetal inside the heater to 128 degrees

Fahrenheit when its analog thermostat is rotated halfway. Id. at 99-100. We know from testing

done in this case that the corresponding ambient air temperature of a small room heated by the

SFH111 set at Dot 7 can range from 110-120 degrees Fahrenheit.

       Other potential changes described by plaintiffs’ experts include designing the bimetal

thermostat to turn off at an internal temperature less than the 212 degrees incorporated in its

current design, R. 91-25 at 24; R. 91-20 at 57, or by using lower wattage, which would have the

effect of lowering the temperature range. R. 91-17 at 226-27. Alternatively, the packaging

could have been designed to avoid misleading claims. Plaintiffs’ expert William Murphy opined

that the presence of a thermostat and the claim of “overheat protection” on the package “would

indicate to some users that they need not constantly monitor the room conditions since the

thermostat will maintain temperature within a safe range, just as their central heating/cooling

thermostat does.” R. 52-2 at 7. The statement on the box, “Auto Shut-Off Unit automatically

turns heater off if it over heats,” is described by Mr. Murphy as at best ambiguous and unclear.

“The manufacturer is referring to the safety limit reset switch with an operating temperature

around 150°F.    The consumer may interpret this overheating statement as referring to the

thermostat control with a limit of 80-85°F like what they see on their central heat/cool




                                              15
No. 16-5284, Scanlan, et al. v. Sunbeam


thermostat.” Id. Defendant did not present any evidence disputing plaintiffs’ expert testimony

on alternative designs.

       In granting summary judgment to the defendant manufacturer, the district court in Fritz v.

Campbell Hausfeld/Scott Fetter Co. noted that “proof of nothing more than that a particular

injury would not have occurred had the product which caused the injury been designed

differently is not sufficient to establish a breach of the manufacturer’s or seller’s duty as to the

design of the product.” 2007 WL 1558509, *3 (E.D. Ky. 2007) (quoting Jones v. Hutchinson

Mfg., Inc., 502 S.W.2d 66, 70 (Ky. 1973)). The expert witness in Fritz presented three different

alternative designs to a pressure washer that he claimed would have prevented the plaintiff’s

injury. However, the expert said “nothing about industry standards or practices, the state of the

art in the industry, similar accidents involving this or other products, or other factors relevant to

the issue of whether the defendants’ product is actually defective.” Id. “[P]roof that technology

existed, which if implemented would feasibly have avoided a dangerous condition, does not

alone establish a defect.” Stewart v. Gen. Motors Corp, 222 F. Supp. 2d 845, 848 (W.D. Ky.

2002) (quoting Brock v. Caterpillar, Inc., 94 F.3d 220, 224 (6th Cir. 1996)); see also Wall v.

Ford Motor Co., 983 F.2d 1071 (6th Cir. 1992) (unpublished) (expert testimony that it was

possible to design the vehicle in a way that could have prevented plaintiff’s injury was not

enough to rebut the presumption, and “something more” was required).

       The court considers the testimony of plaintiffs’ experts regarding alternative designs as

one factor among others in the analysis of whether the SFH111 was unreasonably dangerous

such that defendant should not have put it on the market as designed.




                                                 16
No. 16-5284, Scanlan, et al. v. Sunbeam


               c.   Adequacy of Warnings

       Defendant’s expert Miller compared the SFH111 to several similarly constructed space

heaters which all contain “nearly identical warnings and instructions regarding heater use and

adjustable thermostat operation.” R. 81-20 at 2-3. None of the heaters he looked at “contained a

warning concerning the potential for the product to produce excessive ambient temperatures

during use or a warning regarding the dangers associated with raised temperature levels.” Id.

However, Miller did not test these other heaters for excessive ambient room temperature when

they were set to Dot 7 and permitted to run overnight.

       A warning might be adequate in some circumstances, but not in others. In light of the

evidence supporting plaintiff’s theory that the A349 Thermostat permits ambient temperatures to

achieve levels of 100-120 degrees when the temperature control dial is set to the mid-range, a

different warning may be required. This is all the more true given that the product’s packaging

fostered false expectations with regard to the presence of an adjustable thermostat and overheat

protection, as discussed in the next section on consumer expectations. Stated another way, it is

possible that the A349 thermostat is not inherently defective due to its ability to allow the

bimetal to reach high temperatures before cycling off if adequate warnings are provided

regarding reasonable misuse.

       Specifically, the instruction manual fails to warn consumers that the A349 permits

excessive temperatures at middle settings if the user does not properly calibrate the advertised

auto-shutoff feature by turning the temperature dial to the left until the unit cycles off after a

comfortable temperature has been achieved. A customer would have no way of knowing, even

after reading the instructions, that setting the thermostat control to a middle level, rather than the

maximum level as instructed, would have no differing impact on heat output.




                                                 17
No. 16-5284, Scanlan, et al. v. Sunbeam


               d. Consumer Expectations

       Kentucky precedent states that a product fails to satisfy consumer expectations when it is

dangerous to an extent beyond that which would be contemplated by the ordinary consumer who

purchases it. Greene v. B.F. Goodrich Avionics Sys., 409 F.3d 784, 789 (6th Cir. 2005) (citing

Restatement (Second) of Torts § 402A cmt. i. (1965)). Miller’s testing showed the SFH111 was

capable of heating Sawyer’s room to 115 or 120 degrees Fahrenheit without shutting off in six

hours. R. 91-11 at 71-72. Plaintiffs’ experts opined that consumers would not expect a space

heater on a middle setting to heat a room far above the normal zone for human comfort of 65 and

84 degrees. R. 52-1 at 6-7; R. 52-3 at 19. Dr. Lehto, plaintiffs’ human factors expert, testified

that ordinary consumers would be “shocked” to learn that a space heater can warm a room to the

point that a person would succumb to heat stroke. R. 91-18 at 140-41. William Murphy,

plaintiffs’ engineering expert, testified that most consumers would expect a heater would have an

upper range of 80-85 degrees, similar to what they are used to seeing on their central

heating/cooling thermostat. R. 91-13 at 3. In short, consumers would not expect a heater left

unattended on a middle setting to cause risk of death due to heat exposure, as opposed to a

different type of danger such as shock or fire.

       The packaging of the SFH111 only bolsters these false consumer expectations. The small

room designation appearing on the box implies that defendant offered different products

depending on room size. In fact, all of defendant’s heaters were 1500 watts on the higher

wattage setting, regardless of whether it was a small heater or a large heater. R. 91-20 at 37-38;

R. 91-21 at 142. Photographs of families on the box imply the SFH111 is safe for active homes.

The advertised safety features including an adjustable thermostat, overheat protection and auto

shutoff could likely lead a reasonable consumer to believe that excessive ambient temperature is




                                                  18
No. 16-5284, Scanlan, et al. v. Sunbeam


not a risk with this product. Finally, the dots of increasing size on the heater’s dial suggest one

could rely on the dial placement to control ambient room temperature according to the

preferences of the consumer.      R. 91-11 at 271-72 ; R. 91-18 at 80-81, 103-04, 113-15.

Defendant did not produce any evidence to contradict plaintiffs’ evidence regarding consumer

expectations.

       In this case, a failure to warn and consumer expectations go hand in hand. Consumers

use products in the ways those products are marketed and labeled. The adequacy of warnings

may depend on whether marketing-driven consumer expectations lead consumers to

unexpectedly dangerous uses without fair warning. For example, plaintiffs’ expert stated that

“safety terms, such as ‘overheat protection’ . . . may result in a user being less careful about how

they operate the unit if they feel it has such protections built into the product.” R. 52-2 at 8. In

other words, a warning may be more inadequate than otherwise if a product’s inherent nature or

the seller’s chosen marketing leads consumers to expect that certain uses are safe.

                e. Conclusion on Unreasonably Dangerous Product

       Defendant would have this court hold that their compliance with industry custom is

dispositive in this case. Defendant emphasizes the uncontroverted evidence that Sunbeam has

received no similar complaints in the last fifteen years, during which it sold 18 million heaters

with similar or identical bimetal thermostats to support its argument that the SFH111 conforms

to a common and overwhelmingly safe design. R. 79-7 at 5.

       However, there is no precedent for finding that compliance with industry custom can be

dispositive. This is supported by the fact that Kentucky courts allow a jury to find a product

defective despite compliance with industry standard. See Jones, 502 S.W.2d at 70 (“[I]f an

industry adopts careless methods, it cannot be permitted to set its own uncontrolled standard. . . .




                                                19
No. 16-5284, Scanlan, et al. v. Sunbeam


Where common knowledge and ordinary judgment will recognize unreasonable danger[,] what

everyone does may be found to be negligent.”); Boon Edam, Inc. v. Saunders, 324 S.W.3d 422,

429 n.13 (Ky. Ct. App. 2010) (“A curious argument which basically reasons that because no one

was previously injured there must not be any danger arising from the operation of the door. If

accepted, a corollary would be there could never be an injury caused by the operation of the door

in the first instance because there had never been a prior injury. This is simply an untenable

argument.”).

       All of the considerations discussed in McCullough and analyzed above are factors

bearing on the principal question whether the SFH111 was manufactured Ain a defective

condition unreasonably dangerous.@ In rare cases the Kentucky Supreme Court has found one of

those factors dispositive as a matter of law. For example, the patency of the danger of a grain

auger made it unreasonable to hold a manufacturer liable for an injury caused by the

circumstances in which the product was used; the consumer’s subsequent failure to maintain a

disintegrating grinding wheel was the sole cause of injury and the original design was not a

contributing factor; and the inherently unsafe characteristics of dynamite made it unreasonable to

blame the manufacturer for a failure to warn of the dangers due to careless handling.

McCullough, 676 S.W.2d 776, 781 (Ky. 1984) (citing Jones, 502 S.W.2d 66 (grain auger);

Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197 (1976) (grinding wheel); Hercules Powder Co.

v. Hicks, 453 S.W.2d 583 (1970) (dynamite)). There is no compelling argument under the

circumstances of this case that any one factor should be dispositive as a matter of law. The space

heater at issue does not pose a risk of danger comparable to the grain auger, was not negligently

maintained like the grinding wheel and would arguably benefit from a well-placed warning,

unlike the dynamite in Hercules Powder. By statute, complying with industry practice entitles a




                                               20
No. 16-5284, Scanlan, et al. v. Sunbeam


manufacturer to a rebuttable presumption that its product is not defective.          Making that

presumption irrebuttable is solely within the province of the legislature.

        A space heater’s foremost and obvious danger is risk of shock or fire, not risk of

producing fatal levels of ambient heat. Given the substantial evidence that the SFH111 provides

inadequate warnings of a danger that defies consumer expectations for a reasonable use, this

court cannot find that compliance with industry standard is dispositive in this case. The Scanlans

presented evidence by multiple experts of inadequate warnings, consumer expectations, and

alternative designs. Much of plaintiffs’ evidence was not controverted by defendant. Kentucky

law suggests that courts cannot find that evidence of compliance with industry custom alone

outweighs evidence of these other factors. At trial, Sunbeam may argue that they and other

manufacturers have sold millions of comparable heaters without incident and a jury may agree

that compliance with industry custom outweighs the other factors. Such decisions rightly belong

to a jury.

        Kentucky law allows a fact finder to find a product defective despite industry

compliance. A jury should be able to evaluate the weight of the evidence and determine if

defendant manufactured a product which was unreasonably dangerous in design. Such a finding

would not mean the industry standard is per se unreasonable. For example, if a jury found the

SFH111 to be defective, Sunbeam might correct this defect by adding appropriate warnings

clarifying that failure to turn the dial down until the heater cycles off upon reaching the desired

temperature will result in continuous and potentially fatal heat output. Similarly, consumer

expectations could be impacted by making changes to the product claims included on the

packaging.




                                                 21
No. 16-5284, Scanlan, et al. v. Sunbeam


       The court concludes the district court erred in taking the issue of whether the SFH111

was an unreasonably dangerous product away from the jury.

       2.   Failure to Warn

       In Kentucky, “a product is unreasonably dangerous in design if it does not adequately

warn the consumer that the product should not be put to a certain use.” Tipton v. Michelin Tire

Co., 101 F.3d 1145, 1149 (6th Cir. 1996) (citation omitted).           Therefore, warnings and

instructions are relevant in determining whether a product is defective. Id. This duty to warn

“extends to the dangers likely to result from foreseeable misuse of a product.” Morales v. Am.

Honda Motor Co., 71 F.3d 531, 537 (6th Cir. 1996). Where the manufacturer is obligated to give

an adequate warning of danger, the giving of an inadequate warning is as complete a violation of

its duty as would be the failure to give any warning. Post v. Am. Cleaning Equip. Corp.,

437 S.W.2d 516, 521-22 (Ky. 1968).

       As evidence that defendant had reason to know the SFH111 was likely to be dangerous

because it could heat a space to excessive temperatures, plaintiffs point to the schematic for the

Tower A349 thermostat. R. 91-12. Based on the diagram, plaintiffs contend that defendant

could have deduced that at its upper levels the SFH111 would produce excessive ambient

temperatures. Despite possessing this evidence, the instruction manual contained no warnings

about the associated danger, nor were there any relevant warnings on the heater itself.

In addition, the packaging fostered false consumer expectations that the SFH111 had safeguards

to prevent the danger of producing excessive ambient heat. Plaintiffs presented evidence from

four experts who each concluded that a warning should have been placed directly on the heater to

make consumers aware of the gravity of the risk of turning the Thermostat Control dial to a

middle setting and leaving the heater running overnight. R. 91-18 at 135; R. 52-2 at Page ID




                                               22
No. 16-5284, Scanlan, et al. v. Sunbeam


449-50; R. 52-3 at 17; R. 52-4 at 589. An adequate warning on the heater itself might have

drawn Mr. Scanlan’s attention such that he would not have left the heater turned on in a room

occupied only by a sleeping child.

       The district court erroneously placed the burden on plaintiffs to show that Stephen

Scanlan would have behaved differently if the instruction manual, box or space heater itself

contained a warning regarding the heater’s ability to heat a room to very high temperatures.

However, a plaintiff is not required to prove that a different warning would have averted the

injury in question when the warning that was actually given was inadequate. “[I]n the absence of

an adequate warning, the defendant cannot shift to the plaintiff the burden of proving that he

would not have misused the product regardless.”           Morales, 71 F.3d at 537 (citing Post,

437 S.W.2d at 521)). Mr. Scanlan’s failure to follow the operating instructions because he did

not read them does not shift the burden to plaintiff to prove he would not have misused the

product regardless of what instructions or warnings were provided.

       Causation is an issue of fact, and all of the relevant facts should be considered. The fact

that the warnings provided were embedded in the instruction manual and were not present on the

heater itself is relevant. It is also relevant that while the instruction manual warned of the danger

of shock and fire, nowhere did it warn of the danger associated with excessive ambient air

temperature – the actual danger that caused the injury at issue. Plaintiffs should be able to argue

to the jury that the warnings provided were inadequate, that the terms “adjustable thermostat”

and “overheat protection” on the box were misleading, and that plaintiffs’ expectations in their

purchase and use of the heater were reasonably influenced by these factors.




                                                 23
No. 16-5284, Scanlan, et al. v. Sunbeam


C. Kentucky Consumer Protection Act

       In order to establish a violation of the KCPA, plaintiffs must show that the defendant’s

actions were either (1) intentional or (2) grossly negligent. Sparks v. ReMax Allstar Realty, Inc.,

55 S.W.3d 343, 348 (Ky. Ct. App. 2000). Gross negligence requires a “conscious and voluntary

act or omission which is likely to result in grave injury when in face of clear and present danger

of which alleged tortfeasor is aware.” Id.

       Plaintiffs argue on appeal that they established an issue of fact that defendant knew that

the SFH111 could produce excessive ambient temperature based on the calculations appearing

on the Tower A349 Diagram.          The diagram shows that when the thermostat was turned

47 rotational degrees, the auto shutoff feature would not engage until the internal temperature of

the bimetal reached 70 degrees Fahrenheit.           The thermostat limit increased four degrees

Fahrenheit for every six degrees of rotation. Therefore, a jury could find that defendant knew

that the SFH111 was capable of producing excessive heat in the range of 128 degrees Fahrenheit

on the bimetal at 135 rotational degrees – the setting used by plaintiffs on the night Sawyer

Scanlan died. With this knowledge, plaintiffs marketed the heater for small rooms and families

with children, advertising safety features that would mislead the consumer.

       In order to show that defendant engaged in a conscious and voluntary act or omission in

the design, manufacture or sale of the SFH111, plaintiffs must offer facts for the jury to find that

defendant had knowledge of alleged defects and consciously disregarded such information. See

Dalton v. Animas Corp., 913 F.Supp. 2d 370, 378 (W.D. Ky. 2013). There is no evidence in the

record from which a jury could find defendant consciously disregarded known hazards

associated with the SFH111’s heating capabilities.         Sunbeam and its predecessor Holmes

manufactured and sold 4,657,360 SFH111 and HFH111 heaters from 2004 and 2010 and never




                                                24
No. 16-5284, Scanlan, et al. v. Sunbeam


received any notice of an alleged injury or death resulting from exposure to heated ambient air.

R. 81-19 at 1. The plaintiffs simply have not alleged any facts upon which a reasonable jury

could find that defendant intentionally, knowingly or in bad faith took malign actions affecting

the Scanlans.

       This court affirms the district court’s grant of summary judgment on plaintiffs’ Kentucky

Consumer Protection Act claim.

                                          CONCLUSION

       We AFFIRM the district court’s grant of summary judgment on the claimed violations of

the Kentucky Consumer Protection Act, REVERSE the district court’s grant of summary

judgment finding no issue of material fact as to whether the space heater was designed in a

defective condition unreasonably dangerous and REMAND for further proceedings.




                                              25
No. 16-5284, Scanlan, et al. v. Sunbeam


       SUTTON, Circuit Judge, concurring. I concur in the court’s thoughtful and admirable

efforts to resolve this difficult case. But I must acknowledge the far-reaching nature of the

court’s holding that Kentucky tort law permits this claim to go to a jury. The pertinent question

is whether an “ordinarily prudent company . . . would not have put [this product] on the market.”

Montgomery Elevator Co. v. McCullough, 676 S.W.2d 776, 780 (Ky. 1984). That standard takes

account of many factors, but it necessarily emphasizes what ordinary manufacturers have always

done. And in this case, the record establishes that the SFH111 was no different from the heaters

with bimetal thermostats that numerous manufacturers have used “hundreds of millions” of times

over 50 years without a single comparable incident. R. 79-7 at 5–6. Yes, an entire industry can

be wrong. And yes, the fruits of its collective mistake can occur later. But this of course is not a

latent injury case. In the context of such a common design and such an uncommon harm, it is

difficult to see how a reasonable jury could retroactively condemn such a uniform practice as

being unreasonably dangerous. But that apparently is what Kentucky tort law allows. I therefore

concur in the court’s opinion.




                                                26
