      RECOMMENDED FOR FULL-TEXT PUBLICATION
           Pursuant to Sixth Circuit Rule 206
   ELECTRONIC CITATION: 2000 FED App. 0021A (6th Cir.)
               File Name: 00a0021a.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                           ;
                            
LAURA HOLLISTER,
                            
        Plaintiff-Appellant,
                            
                            
                                       98-1660
AMERICAN COMMUNITY
                            
MUTUAL INSURANCE             >
COMPANY,                    
               Intervenor, 
                            
                            
                            
         v.
                            
DAYTON HUDSON               
                            
       Defendant-Appellee. 
CORPORATION,

                            
                            
                            
                           1

      Appeal from the United States District Court
     for the Eastern District of Michigan at Detroit.
      No. 96-73142—John Feikens, District Judge.
                Argued: August 4, 1999
         Decided and Filed: January 13, 2000




                            1
2       Hollister v. Dayton Hudson Corp.                     98-1660

Before: SILER and GILMAN, Circuit Judges; GRAHAM,
                   District Judge.*
                      _________________
                            COUNSEL
ARGUED: Steven P. Handler, McDERMOTT, WILL &
EMERY, Chicago, Illinois, for Appellant. Barry B. Sutton,
HARVEY & KRUSE, Troy, Michigan, for Appellee.
ON BRIEF: Steven P. Handler, Charles M. Gering,
McDERMOTT, WILL & EMERY, Chicago, Illinois, Robert
P. Lynn, Jr., Mineola, New York, for Appellant. Barry B.
Sutton, Dennis M. Goebel, HARVEY & KRUSE, Troy,
Michigan, for Appellee.
                   ______________________
                    AMENDED OPINION
                   ______________________
   RONALD LEE GILMAN, Circuit Judge. Laura Hollister,
a citizen of Michigan, was severely burned when the shirt that
she was wearing ignited upon contact with a hot electric
burner on her apartment stove.1 She brought a lawsuit against
Dayton Hudson Corporation, the Minnesota-based owner of
the department store where the shirt was purchased, alleging
negligence and breach of the store’s implied warranty of
merchantability. Her claims were based on allegations that
(1) the shirt’s design rendered it unreasonably dangerous, and
(2) the shirt failed to carry a warning as to its extreme
flammability. The district court granted Dayton Hudson’s


    *
     The Honorable James L. Graham, United States District Judge for
the Southern District of Ohio, sitting by designation.
    1
      This case is the subject of an earlier opinion. See Hollister v.
Dayton Hudson Corp., 188 F.3d 414 (6th Cir.1999). Upon Hollister’s
petition for rehearing, the panel is persuaded that the earlier opinion
should be withdrawn and this opinion substituted.
98-1660               Hollister v. Dayton Hudson Corp.          3

motion for summary judgment, concluding that Hollister had
not established a prima facie case of design defect under
Michigan law, and that any duty to warn was obviated by the
open and obvious nature of the alleged defect.
   Contrary to the decision of the district court, we believe that
Hollister has adduced sufficient evidence to allow a
reasonable juror to conclude that the shirt sold by Dayton
Hudson was defective because of its failure to carry a warning
regarding its extreme flammability. Although Hollister has
failed to show any negligence on Dayton Hudson’s part
regarding this alleged defect, she need only establish a prima
facie case that the shirt was defective and that it caused her
injuries in order to pursue her claim for breach of implied
warranty. We therefore AFFIRM the district court’s entry of
summary judgment on Hollister’s negligence claim,
REVERSE its entry of summary judgment on Hollister’s
breach of implied warranty claim to the extent that the claim
is based upon a failure to warn, and REMAND for further
proceedings consistent with this opinion.
                     I. BACKGROUND
A. The accident
   In November of 1995, Hollister was a business student at
Northwestern University in Evanston, Illinois. On November
4, 1995, she attended a business-school party with her friend
Jerome Joliet.     She later returned to her apartment
accompanied by another friend, Diarmuid O’Connell, at
approximately 1:45 a.m. the next morning. According to
O’Connell, Hollister was intoxicated when the two left the
party. O’Connell departed from Hollister’s apartment at
approximately 2:10 a.m.
  Hollister has no memory of subsequent events. The next
thing that she can recall is seeing herself in the mirror at
approximately 9:30 a.m. on November 5. Realizing that she
was injured, Hollister phoned her parents in Michigan.
According to Hollister’s parents, she repeated the words “fire,
burner, pasta.” Hollister’s parents asked her for the number
4    Hollister v. Dayton Hudson Corp.                 98-1660     98-1660             Hollister v. Dayton Hudson Corp.      21

of a friend and she supplied O’Connell’s. After leaving a         on Hollister’s breach of implied warranty claim to the extent
message on O’Connell’s machine, Hollister’s father asked his      that the claim is based upon a failure to warn, and REMAND
daughter for another number, and she supplied Joliet’s. Mr.       for further proceedings consistent with this opinion.
Hollister then left a message on Joliet’s machine. Joliet
arrived at Hollister’s apartment at about 10:00 a.m. that day,
discovered that Hollister was severely burned, and called 911.
Evanston Fire Department paramedics came immediately and
treated Hollister.
   One of the paramedics found that the right front and rear
burners of Hollister’s stove were glowing red when he
arrived. There was a bowl of cooked pasta in the sink, and a
pot sitting on the stove between the burners. The fire
department report concludes that the fire began in the kitchen.
At the request of the fire department, the United States
Bureau of Alcohol, Tobacco, and Firearms (BATF) assisted
in investigating the accident. The BATF report also indicates
that the fire began in the kitchen. It concludes that the
accident most likely occurred when Hollister reached for
something in the cabinet above the stove (the door to which
was open) and her shirt-tail, which was hanging loose,
brushed against the burner and ignited. Hollister next
apparently attempted to smother the flames on the counter,
where burned cloth was found. The report states that there
was evidence that she then attempted to extinguish the flames
with water from the bathtub. There was evidence that after
doing so, Hollister rested on her bed, where more burned
clothing and body fluids were found. Small remnants of
Hollister’s shirt, a brown and black plaid button-down, were
found. Hollister’s mother stated that she had purchased this
shirt for Hollister at a Dayton Hudson’s department store six
years earlier. Hollister was also wearing a T-shirt and bra
under the large plaid shirt at the time of the accident. The
report concludes that “the cause of this fire should be
classified as accidental caused by ignition of the victim’s
clothing by the stove burner while she was cooking.”
   Hollister was brought to Evanston Hospital, where she was
treated for third-degree burns over fifty-five percent of her
body. She was later transferred to Loyola Hospital in
20    Hollister v. Dayton Hudson Corp.                 98-1660      98-1660               Hollister v. Dayton Hudson Corp.         5

jury is entitled to consider any other relevant evidence on the     Chicago, where she stayed until December 21, 1995. After
issue.” Howard, 601 F.2d at 138.                                    treatment at Loyola, Hollister was transferred to the
                                                                    University of Michigan Medical Center in Ann Arbor,
   This last holding is particularly significant because Dayton     Michigan, where she remained until April 17, 1996.
Hudson cites the fact that the exemplar fabric met federal
flammability standards as a factor supporting the grant of            As a result of her burns, Hollister has undergone
summary judgment.           Although such evidence would            comprehensive skin grafting to most of her upper body, as
undoubtedly be relevant evidence for Dayton Hudson to               well as plastic and reconstructive surgery. She remains
introduce at trial, it is not dispositive of Hollister’s claim at   profoundly disfigured. Her medical expenses at the time of
this stage. See id.; Wilson v. Bradlees of New England, Inc.,       the district court’s ruling in May of 1998 amounted to
96 F.3d 552 (1st Cir. 1996) (holding that evidence of a             approximately $980,000.
garment meeting the federal flammability standards was
relevant to, but not dispositive of, plaintiff’s claims).           B. Procedural background
   We therefore conclude that Hollister has established a              On March 27, 1996, Hollister’s parents filed suit in the
prima facie case against Dayton Hudson for breach of implied        Circuit Court of Wayne County, Michigan. Named as
warranty based upon a failure to warn, and that the district        defendants were Dayton Hudson (the parent company of the
court erred in entering the grant of summary judgment on this       department store where the shirt was purchased), Ralph
claim. This is not to say, however, that Hollister will             Lauren (the company that Hollister’s mother originally
necessarily prevail at trial. She will still have to convince a     believed was the manufacturer of the shirt), Banana Republic
jury that the shirt was considerably more flammable than a          (the retailer of the T-shirt), Victoria’s Secret (the retailer of
reasonable consumer would expect. See Glittenberg, 491              the bra), and General Electric (the manufacturer of the stove).
N.W.2d at 212-13. She will also have to convince a jury that        The complaint alleged that the shirt was defective because it
the lack of a warning on the shirt was a proximate cause of         was extremely flammable and because it did not provide a
her injuries. See Moll v. Abbott Labs., 506 N.W.2d 816, 824         warning of this condition. On July 11, 1996, the case was
(Mich. 1993). Finally, if Hollister does establish liability, the   removed to the United States District Court for the Eastern
damages that Hollister sustained will be diminished in              District of Michigan on the basis of diversity of citizenship.
proportion to any amount of negligence attributed to her by         Pursuant to a July 31, 1997 motion, Hollister was substituted
the jury. See M.C.L. § 600.2949; Karl v. Bryant Air                 for her parents as the plaintiff.
Conditioning Co., 331 N.W.2d 456, 462 (Mich. 1982)
(holding that the Michigan comparative negligence statute             On August 1, 1997, the district court held a status
applies to breach of implied warranty actions). These hurdles       conference with all of the parties. At that time, the court
are likely to be significant ones. We are convinced, however,       noted that in the 16 months that the case had been in
that Hollister has the right to proceed to the next stage of the    existence, a “whole lot of nothing” had taken place. At that
litigation.                                                         point, Hollister had arranged for no expert witnesses other
                                                                    than a consultant who was going to conduct tests of various
                    III. CONCLUSION                                 fabrics. The court directed Hollister to secure and disclose
                                                                    her experts, pursuant to Rule 26 of the Federal Rules of Civil
  For all of the reasons set forth above, we AFFIRM the             Procedure, by September 1, 1997. A discovery deadline of
district court’s entry of summary judgment on Hollister’s           October 31, 1997 was also set.
negligence claim, REVERSE its entry of summary judgment
6     Hollister v. Dayton Hudson Corp.                 98-1660      98-1660              Hollister v. Dayton Hudson Corp.        19

   On September 1, 1997, Hollister submitted reports pursuant       that the robe’s unexpected flammability was a proximate
to Rule 26 from the following four experts: David Hall              cause of her injuries. See id. at 592.
(textile expert), Edmund Knight (expert on cause and origin
of the fire), Anna Dutka (economic damages expert), and                The Fourth Circuit’s decision in Howard v. McCrory Corp.,
Alan Hedge (stove design expert). Dr. Hall’s report stated          601 F.2d 133 (4th Cir. 1979), is also instructive. In that case,
that he was still looking for “exemplar” fabric identical to the    a products liability action was brought by a mother whose
rayon used in the shirt in question, and that in his opinion the    infant son was fatally burned when his pajamas and bathrobe
fabric was dangerously flammable. The report identifies the         inexplicably caught fire. The mother sued the manufacturer
fabric as 100% rayon, loosely woven with 1.5 denier threads.        and the retailer of the infant’s pajamas, as well as the
                                                                    manufacturer and the retailer of his bathrobe, alleging strict
   Dr. Hall offered no opinion as to the feasibility of using a     liability, negligence, and breach of implied warranty.
different fabric to construct a similar shirt, and acknowledged     Judgment as a matter of law was entered in favor of the two
that he had no expertise in the use of fabrics in clothing. He      retailers. The Fourth Circuit reversed for two distinct reasons,
initially testified that the flammability test promulgated by the   both of which are relevant to the instant case.
Consumer Products Safety Commission (CPSC), set forth in
16 C.F.R. § 1610, determines whether a fabric is                      The district court had entered judgment in favor of Kresge,
“unreasonably dangerous.” The regulation’s purpose is “to           the retailer of the pajamas, because the plaintiff presented no
reduce danger of injury and loss of life by providing, on a         expert testimony regarding the pajamas’ flammability, only
national basis, standard methods of testing and rating the          offering eyewitness testimony that the pajamas had ignited
flammability of textiles and textile products for clothing use,     quickly and burned very rapidly. In reversing, the Fourth
thereby discouraging the use of any dangerously flammable           Circuit wrote:
clothing textiles.” 16 C.F.R. § 1610.1. Because their
products passed the CPSC flammability test, Banana Republic           It has been held that, even where all the standard tests
and Victoria’s Secret were eventually dismissed as                    demonstrated that a product was not dangerously
defendants. Although Dr. Hall never tested the shirt remnants         inflammable for use by infants, it is perfectly permissible
pursuant to 16 C.F.R. § 1610, Dayton Hudson’s expert did.             for the jury to find that the product was dangerously
The fabric passed the test. Despite this fact, Dayton Hudson          inflammable from . . . proof that the product “ignited
remained as a defendant. By October of 1997, Hollister had            easily, (and) burned rapidly and intensely with a high
dismissed all of the other remaining parties.                         degree of heat.”

  In his deposition on October 31, 1997, Dayton Hudson’s            Howard, 601 F.2d at 137 (citing LaGorga, 275 F. Supp. at
causation expert, John Campbell, acknowledged that he had           378).
located an “exemplar” shirt composed of fabric identical to
that used in the shirt involved in the accident. Hollister’s           McCrory, the retailer of the bathrobe, was granted judgment
counsel subsequently purchased identical shirts to the one that     notwithstanding the verdict on the grounds that remnants of
Campbell had identified, and gave them to Dr. Hall for              the robe had been tested and found to meet the standards of
examination and testing.                                            Class I fabrics under the CPSC flammability test. The Fourth
                                                                    Circuit reversed this holding as well, reasoning that
  Dr. Hall determined that the characteristics of the exemplar      “[c]ompliance with federal standards, while plainly relevant,
fabric were substantially identical to the shirt that Hollister     is not conclusive on the issue of McCrory’s liability and the
18   Hollister v. Dayton Hudson Corp.                 98-1660     98-1660              Hollister v. Dayton Hudson Corp.         7

expert, the exemplar fabric ignited instantly and burned          had been wearing at the time of the accident. He then
completely within six seconds. Of the fourteen comparison         conducted a test comparing the exemplar fabric with fourteen
samples, eleven failed to ignite at all when passed over a        other fabrics. The test utilized a stove-top electric burner set
burner at the same rate. The three samples that did ignite        at 1100-1160 degrees, and involved sweeping 3.5 by 10-inch
were another 100% rayon sample and a rayon-polyester blend,       strips of the various fabrics across the burner. Hall then timed
both of which burned in about twelve seconds, and a piece of      the rate of ignition and burning. The exemplar fabric ignited
newspaper, which burned in four seconds. Thus the exemplar        immediately, and burned completely within six seconds.
fabric burned twice as quickly as other rayon fabrics, and only   Eleven of the fourteen non-exemplar samples failed to ignite
two seconds slower than a piece of newspaper. A reasonable        at all. The three samples that did ignite were another 100%
juror could conclude from this evidence that the shirt’s          rayon sample, a rayon-polyester blend (both of which took
manufacturer had a duty to know that the shirt possessed a        about twelve seconds to burn completely), and a piece of
latent danger, and a corresponding duty to warn consumers of      newspaper (which burned in four seconds).
that danger.
                                                                    At the close of discovery, Dayton Hudson moved for
  Once a plaintiff establishes that a product is                  summary judgment.          One ground focused upon the
defective—whether because of its design or because of a           requirement that a plaintiff such as Hollister must prove the
failure to warn—she must then demonstrate that this defect        effectiveness of a proposed alternative design. In response,
was a proximate cause of her injuries in order to make out a      Hollister acknowledged that she would not be calling an
claim for breach of implied warranty. See Piercefield, 133        expert witness on the effectiveness of an alternative design.
N.W.2d at 134. Hollister’s mother stated in an affidavit that     She claimed that this was a question of fact for the jury that
she would not have bought the shirt for her daughter if she       did not require expert testimony. The district court
had known that the shirt was extremely flammable, and             subsequently held a hearing on January 5, 1998 to clarify
Hollister herself maintained in an affidavit that she would not   Hollister’s position, stating as follows:
have worn the shirt in question if she had possessed such
knowledge. A reasonable jury could find, based on this              THE COURT: —you say that this is so clear, the risk of
evidence, that the shirt’s failure to carry a warning was a         severe injury from a highly flammable fabric is so
proximate cause of Hollister’s injuries.                            manifest, that no expert testimony is needed. That— that
                                                                    really made me open my eyes. You mean we can simply
   In Deffebach v. Lansburgh & Bro., 150 F.2d 591 (D.C. Cir.        impanel a jury, and you can put on your proof without
1945), the D.C. Circuit addressed a fact pattern quite similar      any testimony to show this?
to the one before us. That case involved an implied warranty        ...
claim against a non-manufacturing retailer who sold the             MR. HANDLER: We mean it.
plaintiff a chenille robe. Ignited by a spark as the plaintiff
attempted to light a cigarette, the robe caught fire and burned   The district court then presented the parties with a list of six
explosively. The district court granted judgment as a matter      requirements necessary to establish a prima facie case of
of law to the retailer. On appeal, the D.C. Circuit reversed,     design defect under Michigan law.
holding that judgment as a matter of law was inappropriate
because the plaintiff had produced evidence to satisfy both         After briefing by both parties, the district court granted
elements of an implied warranty claim—she had                     Dayton Hudson’s motion for summary judgment on May 12,
demonstrated that the robe was dangerously flammable and          1998. Hollister timely filed her notice of appeal to this court.
8     Hollister v. Dayton Hudson Corp.                 98-1660      98-1660              Hollister v. Dayton Hudson Corp.        17

                       II. ANALYSIS                                 exercise reasonable care to inform consumers of the danger.
                                                                    See Glittenberg, 491 N.W.2d at 212-13 (holding that the
A. Standard of review                                               dangers of diving headfirst into a manufacturer’s
                                                                    aboveground swimming pool were open and obvious). If a
  We review de novo the district court’s grant of summary           product’s danger is open and obvious to a reasonable
judgment. See, e.g., Smith v. Ameritech, 129 F.3d 857, 863          consumer, the manufacturer has no duty to warn. See id. at
(6th Cir. 1997). Summary judgment is appropriate when               213. In such a case, a retailer who sells the product cannot be
there are no issues of material fact in dispute and the moving      found liable for breach of implied warranty because the
party is entitled to judgment as a matter of law. See FED. R.       product is not defective.
CIV. P. 56(c). In deciding a motion for summary judgment,
the court must view the evidence and draw all reasonable               The district court disposed of Hollister’s failure to warn
inferences in favor of the non-moving party. See Matsushita         argument in a cursory manner, concluding that the danger
Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,         inherent in having clothing come into contact with a hot stove
587 (1986). The judge is not “to weigh the evidence and             is “open and obvious.” We find this analysis to be
determine the truth of the matter but to determine whether          oversimplified. It is true that a reasonable person would
there is a genuine issue for trial.” Anderson v. Liberty Lobby,     know that clothing is flammable; the question, however, is
Inc., 477 U.S. 242, 249 (1986). A genuine issue for trial is        one of degree. See Michigan Mut. Ins. Co. v. Heatilator
presented when there is sufficient “evidence on which the jury      Fireplace, 366 N.W.2d 202, 205 (Mich. 1985) (holding that
could reasonably find for the plaintiff.” Id. at 252.               even if a reasonable consumer would know that covering the
                                                                    vents on a fireplace presented a “vague danger,” a jury might
B. The district court properly disposed of Hollister’s              still reasonably find that a warning was required to give the
   claims based on negligence, but erred in failing to              consumer “a full appreciation of the seriousness of the life-
   separately consider Hollister’s breach of implied                threatening risks involved”). A consumer might reasonably
   warranty claim                                                   be expected to know that a rayon shirt will catch fire more
                                                                    easily and burn more quickly than a shirt made of heavy
  Hollister’s original complaint asserts two distinct causes of     flannel. An ordinary consumer would have no way of
action—negligence and breach of implied warranty. The               knowing, however, that a particular rayon shirt was
former is a tort action and the latter is an action for breach of   substantially more combustible and flammable than another
contract. In evaluating Hollister’s claims, however, the            rayon shirt. Cf. LaGorga v. Kroger, 275 F. Supp. 373 (W.D.
district court did not distinguish between the two. The district    Penn. 1967) (denying a retailer’s motion for judgment as a
court’s summary disposition of Hollister’s negligence claim         matter of law where the plaintiff charged the retailer with
was proper. Hollister failed to offer any evidence of               breach of implied warranty for selling him a jacket that was
negligence on Dayton Hudson’s part, such as proof that the          unusually flammable and lacked a warning, noting that “[t]he
retailer knew of the shirt’s extreme flammability or that it had    public cannot be expected to possess the facilities or technical
received consumer complaints about the shirt in the past. An        knowledge to apprehend inherent or latent dangers”), aff’d,
implied warranty claim, on the other hand, does not require a       407 F.2d 671 (3d Cir. 1969).
plaintiff to prove that the retailer was negligent—only that the
product was defective and that the defect caused her injury.          Hollister presented credible evidence that the exemplar
                                                                    fabric burned explosively, like newspaper, and that other
  Hollister has not been particularly helpful in bringing this      comparable fabrics did not. In tests conducted by Hollister’s
distinction to the court’s attention. Indeed, in her appellate
16   Hollister v. Dayton Hudson Corp.                  98-1660     98-1660               Hollister v. Dayton Hudson Corp.           9

safer manner. The category of failure to warn, on the other        brief, she incorrectly states that “[u]nder Michigan law,
hand, applies to a product that may be designed in an              negligence and breach of warranty claims for design defect in
optimally safe way, but nevertheless bears a latent danger that    product liability cases are judged by the same standard, i.e., a
would not be apparent to an ordinary consumer. For example,        pure negligence risk-utility test.” Thus, Hollister has argued
without a warning as to its weight restrictions, a highway         her two causes of action as if the negligence standard
bridge might be legally “defective” even if it was designed        governed both.
safely and was in perfect working order. See Wilson v.
Bradlees of New England, Inc., 96 F.3d 552, 559 (1st Cir.             Hollister’s and the district court’s confusion as to the
1996). Similarly, a prescription drug might be well designed       appropriate legal standard most likely stems from the fact
and effective for its intended use, but it would nevertheless be   that, in cases where a seller is also the manufacturer,
legally “defective” if it lacked appropriate warnings as to its    Michigan courts have observed that claims of negligence and
proper dosage and possible side effects. See Restatement           breach of implied warranty are, for all intents and purposes,
(Second) Torts § 402A, comment h (1972); see also Barry v.         identical. The reason for this confluence is that a plaintiff
Don Hall Labs., 642 P.2d 685, 688 (Or. Ct. App. 1982)              alleging breach of implied warranty on the part of a seller
(holding that properly manufactured vitamins might still be        must show that the purchased product was defective. That
found defective due to the absence of a warning as to their        showing, in turn, requires proof that the product’s
high sugar content).                                               manufacturer acted negligently, typically by omitting a safety
                                                                   feature or in failing to give warning of a latent danger. A suit
   Under Michigan law, design defect claims and failure to         for breach of implied warranty against a seller who is also the
warn claims are governed by distinct analyses. See Gregory         manufacturer will therefore require the same showing of
v. Cincinnati Inc., 538 N.W.2d 325, 329 (Mich. 1995)               negligence on the defendant’s part as an ordinary products
(holding that a manufacturer’s failure to warn can support a       liability suit against a manufacturer. See Prentis v. Yale Mfg.
product liability claim “even if it the design chosen does not     Co., 365 N.W.2d 176, 186 (Mich. 1984); Smith v. E. R.
render the product defective.”); Glittenberg v. Doughboy           Squibb & Sons, Inc., 245 N.W.2d 52, 56 (Mich. Ct. App.
Recreational Indus., 491 N.W.2d 208, 216 (Mich. 1992)              1976), aff’d, 273 N.W.2d 476 (Mich. 1979)
(cautioning that “design defect analysis must not be used to
evaluate failure to warn claims”). In the present case, the           When the defendant is a non-manufacturing seller,
most relevant difference between the two claims is that a          however, the two analyses diverge. See Prentis, 365 N.W.2d
prima facie case of design defect requires that the plaintiff      at 186 n.30 (“Thus . . . the only time the distinction between
propose a reasonable alternative design, but a failure to warn     implied warranty and negligence may have any significance
claim does not. Thus Hollister’s failure to propose a safer,       in design defect cases, is in determining the liability of a seller
alternative design for the rayon blouse, which was fatal to her    who is not also the manufacturer of a product.”). Because the
design defect claim, does not support a grant of summary           existence of a defect is generally determined by the negligent
judgment against her claim for failure to warn.                    conduct of the manufacturer, a retailer may be held liable for
                                                                   breaching its implied warranty of merchantability by selling
  In order to establish, under Michigan law, that a product is     a defective product, even if the retailer’s conduct is wholly
defective due to a failure to warn, a plaintiff must demonstrate   free from negligence. See Johnson v. Chrysler Corp., 254
that a manufacturer (1) had actual or constructive knowledge       N.W.2d 569, 571 (Mich. Ct. App. 1977) (reversing a directed
of the alleged danger, (2) had no reason to believe that           verdict in favor of the retailer of a defective power punch
consumers would know of this danger, and (3) failed to             press, even though the retailer was not negligent); Piercefield
10    Hollister v. Dayton Hudson Corp.                     98-1660      98-1660               Hollister v. Dayton Hudson Corp.         15

v. Remington Arms Co., 133 N.W.2d 129, 134 (Mich. 1965)                 shooting above the shoulders of an exemplar shirt that her
(holding that a breach of implied warranty claim relating to            expert burned in its entirety. Hollister’s demonstration that
the sale of a defective shotgun shell could be established              the shirt would burn quickly and intensely, coupled with the
without proof of negligence on the part of the retailer). Cf.           CPSC’s report on hospitalization from clothing burns, creates
Marcon v. Kmart Corp., 573 N.W.2d 728 (Minn. Ct. App.                   a question of fact for the jury on the issues of severity and
1998) (affirming a verdict against the non-negligent seller of          foreseeability.
a sled, which was found to be defective because it lacked a
warning advising riders not to kneel).                                     As yet another alternative ground for its holding, the district
                                                                        court opined that Hollister’s own actions would preclude her
   As noted above, Hollister has not argued at any stage of this        from relief based on her alleged misuse of the clothing.
litigation that her implied warranty claim requires distinct            Manufacturers, however, have a duty to warn consumers of
treatment from her negligence claim. Hollister’s implied                the dangers associated with foreseeable misuses of the
warranty claim, however, has been properly raised both below            products they produce. See Shipman v. Fontaine Truck
and on appeal—it was simply analyzed under the wrong legal              Equip. Co., 459 N.W.2d 30, 33 (Mich. Ct. App. 1990)
standard. Ultimately, it is the district court’s responsibility to      (reversing a trial court’s entry of judgment notwithstanding
apply the proper legal standard, regardless of the                      the verdict in favor of the manufacturer of a feed truck, where
misconceptions by the parties. See Industrial Development               there was evidence suggesting that the manufacturer
Bd. v. Fuqua Indus. Inc., 523 F.2d 1226, 1240 (5th Cir. 1975)           reasonably could have foreseen the unsafe modification that
(“[A] trial court has the ultimate responsibility to apply the          the plaintiff made to the truck). As noted above, the CPSC
law to the uncontested facts before it.”); Troupe v. Chicago,           study at least demonstrates the existence of a genuine issue of
D. & G. Bay Transit Co., 234 F.2d 253, 261 (2d Cir. 1956)               material fact as to whether accidentally brushing a stove
(Frank, J., concurring) (“A litigant surely has the right to            burner, as Hollister did, is a foreseeable misuse of clothing.
assume that a federal trial judge knows the elementary
substantive legal rules, long established by the precedents,              2.   Hollister successfully established a prima facie case
and that therefore the judge will act accordingly, without                     that the shirt was defective because it lacked a
prompting by the litigant’s lawyer.”). We will therefore                       warning regarding its extreme flammability
independently consider and apply the proper analysis to
Hollister’s implied warranty claim. See Empire Life Ins. Co.              Hollister’s second basis for asserting that the shirt was
v. Valdak Corp., 468 F.2d 330, 334 (5th Cir. 1972) (“Here,              defective, and therefore sold in breach of Dayton Hudson’s
however, it is not one of the parties seeking to advance a new          implied warranty of merchantability, is her claim that the shirt
theory, rather, it is this court, in fulfillment of its duty to apply   required a warning regarding its extreme flammability.
the correct law, that is seeking to put the case back on the            Dayton Hudson counters that for Hollister to make out a
right track.”).                                                         failure to warn claim, she must first show that the shirt was
                                                                        defectively designed. It therefore maintains that Hollister’s
C. Breach of implied warranty                                           inability to establish a prima facie case of design defect is
                                                                        necessarily fatal to her claim. We find that Michigan law is
  A plaintiff seeking to recover on a claim against a retailer          contrary to Dayton Hudson’s argument.
for breach of implied warranty must establish two elements:
(1) that the product was sold in a defective condition, and (2)           Conceptually, the two claims identify different types of
that the defect caused her injury. See Piercefield, 133 N.W.2d          defect. A design defect is the mark of a poorly designed
                                                                        product, which could reasonably have been designed in a
14   Hollister v. Dayton Hudson Corp.                  98-1660     98-1660              Hollister v. Dayton Hudson Corp.        11

report indicates that kitchen ranges are a common source of        at 134. Hollister contends that the shirt in question was
ignition in accidents involving burning apparel. In fact, the      defective because it was made of a fabric that was
report refers to precisely the type of accident that occurred in   dangerously flammable (design defect) and because it should
the present case:                                                  have carried a warning advising wearers of its extreme
                                                                   flammability (failure to warn).
  Kitchen ranges were the second most common ignition
  source. Ignition occurred most frequently when adults              1.   Hollister failed to establish a prima facie case of
  were leaning against or reaching across a range while                   design defect
  wearing shirts/blouses, when children were climbing on
  or playing with ranges while wearing pajamas, and when                  a.   The district court applied the proper
  elderly women were cooking while wearing robes or                            analysis to Hollister’s allegations of
  housecoats.                                                                  design defect
   Also included in the report are statistics showing the            Hollister argues on appeal that the district court held her to
number of injuries, by age group, that result from shirts’         a higher burden than is required by the Michigan courts. The
igniting on stove tops. In concluding that Hollister had not       district court restated the Michigan law on design defect as
presented sufficient evidence regarding the magnitude of the       requiring Hollister to produce evidence showing:
risk involved, the district court noted that the CPSC report
was from 1985, four to five years before Hollister’s mother               (1) that the severity of the injury was
purchased the shirt in question. It did not explain, however,                 foreseeable by the manufacturer;
why the date of the report invalidates it as evidence. The                (2) that the likelihood of occurrence of her
district court then analyzed the statistics contained in the                  injury was foreseeable by the
CPSC report and determined that there would be 123 injuries                   manufacturer at the time of
per year to persons in Hollister’s age group that might match                 distribution of the product;
the severity of the injury that she incurred. It concluded,               (3) that there was a reasonable alternative
without citation or explanation, that “these are small numbers                design available;
indeed.” The district court thus judged the sufficiency of the            (4) that the available alternative design
evidence presented, which is generally a question for the jury,               was practicable;
not the court. See Zettle, 998 F.2d at 360.                               (5) that the available and practicable
                                                                              reasonable alternative design would
  The CPSC report also considered the severity of injuries                    have reduced the foreseeable risk of
that result when clothing catches fire: “Over one third of all                harm posed by defendant’s product;
clothing-related burn victims were hospitalized. This fact                    and
becomes dramatic when compared to the 4 percent                           (6) that omission of the available and
hospitalization rate for all consumer product-related injuries                practicable reasonable alternative
. . . and the 8 percent reported for all burn injuries.”                      design rendered defendant’s product
Furthermore, Hollister presented evidence that the fabric in                  not reasonably safe.
question would ignite upon contact with an electric burner
and be consumed within seconds. In addition to the test              Our review of the district court’s formulation convinces us
comparing strips of fabric, her videotape shows the flames         that its restatement of Michigan law was correct. The test
                                                                   applied by Michigan courts to design defect claims is set out
12    Hollister v. Dayton Hudson Corp.                     98-1660      98-1660               Hollister v. Dayton Hudson Corp.         13

in Reeves v. Cincinnati, Inc., 439 N.W.2d 326, 329 (Mich.               the Michigan Supreme Court affirmed the grant of a directed
Ct. App. 1989). Steps one and two of the district court’s               verdict for the defendant when the plaintiff offered no
test—the foreseeability of serious injury and the likelihood            information as to the practicability of a seatbelt on a forklift
that injury would occur—echo the language of Reeves, which              truck that had overturned on its operator.
held that “a prima facie case of a design defect premised upon
the omission of a safety device requires first a showing of . . .         In sum, Dr. Hall never presented a “proposed alternative
the likelihood of occurrence of the type of accident . . . and          design” with any specificity. His only recommendation was
the severity of injuries sustainable from such an accident.”            that the weight of the fabric should have been heavier.
439 N.W.2d at 329.                                                      Ignoring for the moment his silence on the practicality of such
                                                                        a suggestion, Dr. Hall also admitted “that he could not
  Steps three, four, and five required Hollister to present             articulate the exact effect on flammability of the changes” he
evidence that a reasonable design alternative was available,            proposed. The district court thus properly dismissed
that it was practicable, and that it would have reduced the risk        Hollister’s claims to the extent that they were premised on the
of the accident at issue in the case. These requirements                shirt’s allegedly defective design. See Zettle v. Handy Mfg.
parallel the second half of the Reeves test, which calls for “a         Co., 998 F.2d 358, 362 (6th Cir. 1993) (affirming a grant of
showing of alternative safety devices and whether those                 summary judgment and holding that the plaintiff had failed to
devices would have been effective as a reasonable means of              present sufficient evidence concerning the effectiveness of a
minimizing the foreseeable risk of danger.” Id.                         proposed alternative design for a power washer under
                                                                        Michigan law).
   Finally, step six of the district court’s test, requiring that the
product must be unreasonably dangerous in the absence of the                   c.   The district court’s evaluation of other factors
alternative design, simply states the logical conclusion of                         was inconsistent with Michigan law
steps one through five. We therefore conclude that the district
court applied the correct test in adjudicating Dayton Hudson’s             Rather than rest its decision solely on Hollister’s failure to
motion for summary judgment based upon design defect.                   meet the district court’s formulation of requirements 3
                                                                        through 6 of Michigan’s risk-utility test, the district court also
     b.   Hollister failed to establish a prima facie                   ruled against her on the alternate grounds of severity
          case of design defect                                         (requirement 1), foreseeability (requirement 2), and the
                                                                        alleged misuse of the shirt (one of Dayton Hudson’s
  Hollister’s claim of design defect is primarily based upon            affirmative defenses). Because the district court’s opinion
the tests conducted by Dr. Hall, in which the exemplar fabric           was published, see 5 F.Supp. 2d 530 (E.D. Mich. 1998), and
and fourteen other fabric samples were dragged across a hot             because we conclude that its rulings on these alternate
burner at a prescribed rate. Those tests indicate that the              grounds were erroneous, we discuss each of them below.
exemplar fabric was significantly more flammable than other
fabrics. Hollister presented no evidence, however, as to the               In Parts VI.A.1. & 2. of its opinion, the district court
availability of alternative fabrics when the shirt was                  concluded, as a matter of law, that a manufacturer could not
manufactured, the cost of manufacturing the shirt with such             have foreseen either the likelihood of the accident suffered by
fabrics, or the effect of a fabric change upon the wearability,         Hollister or the severity of injuries that would result from
durability, or appearance of the fabric. Her failure to submit          such an accident. Hollister, however, presented credible
such evidence is similar to the situation in Owens v. Allis-            evidence to the contrary. A 1985 CPSC report sets forth
Chalmers Corp., 326 N.W.2d 372, 379 (Mich. 1982), where                 statistics on injuries resulting from apparel catching fire. The
