                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1033n.06

                                      Nos. 10-6491; 10-6532

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


NANCY SIEGEL,                                            )
                                                         )
       Plaintiff-Appellant,                              )                      FILED
                                                         )                  Sep 26, 2012
               v.                                        )            DEBORAH S. HUNT, Clerk
                                                         )
DYNAMIC COOKING SYSTEMS, INC., et al.,                   )
                                                         )
      Defendants-Appellees.                              )
__________________________________________               )
DYNAMIC COOKING SYSTEMS, INC.,                           )        ON APPEAL FROM THE
                                                         )        UNITED STATES DISTRICT
       Plaintiff-Appellant,                              )        COURT FOR THE WESTERN
                                                         )        DISTRICT OF KENTUCKY
               v.                                        )
                                                         )
BURNER SYSTEMS INTERNATIONAL, INC.,                      )
                                                         )
       Defendant-Appellee.




BEFORE: DAUGHTREY and ROGERS, Circuit Judges, and ZOUHARY, District Judge.*

       ROGERS, Circuit Judge. This product liability action arose from an oven explosion that

seriously injured plaintiff Nancy Siegel. Siegel sued the oven’s manufacturer, Dynamic Cooking

Systems, Inc., who in turn filed an indemnity claim against Burner Systems Inc., the manufacturer

of the oven’s temperature regulator. Experts for both sides agreed that a gas leak in the regulator


       *
         The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


caused the explosion and that Siegel was not contributorily negligent. However, the experts could

not determine whether the leak resulted from a defective oven design attributable to Dynamic, or

from a manufacturing defect attributable to Burner Systems. Because of this ambiguity, the district

court1 dismissed the indemnity claim. This was proper because Dynamic failed to bring forth

evidence that a manufacturing defect in the regulator was a probable, rather than merely a possible,

cause of the explosion. At the ensuing trial, the district court entered a directed verdict for Dynamic

because Siegel could not prove whether Dynamic or Burner Systems was at fault for the explosion.

This was improper, as Siegel presented two potential causes for the explosion, both of which placed

liability on Dynamic.

                                                  I

       Siegel bought her Dynamic-made range from a local retailer in 2006, and used it for nearly

two years without incident. In February 2008, Siegel was warming food on the stove top of the range

when she heard an unusual noise coming from the oven. Siegel opened the oven door to investigate

when a fireball came out, knocking her down and seriously burning her.

       Siegel and her insurance company, Kentucky Farm Bureau Mutual Insurance Company, sued

Dynamic under various theories of product liability. After preliminary discovery indicated that the

range’s regulator was the source of a gas leak, Dynamic filed a third-party indemnity claim against




       1
        With the consent of the parties, the case was tried before Magistrate Judge James D. Moyer
pursuant to 28 U.S.C. § 636. In this opinion, we refer to the lower court as the “district court.”

                                                 -2-
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


Burner Systems, the regulator’s manufacturer. Neither Siegel nor Kentucky Farm asserted claims

directly against Burner Systems.

        Each party hired experts to help determine the cause of the accident. The experts agreed that

a gas leak originated in the regulator, causing the explosion, but differed as to the cause of the leak.

The dispute centered on whether Burner Systems had defectively manufactured the regulator or

whether Dynamic had defectively designed the oven. The expert for Dynamic, Mark Mulcahy,

identified three possible causes of the regulator leak: a manufacturing defect, a break in the

regulator’s seal caused by gas pressure, and degradation of the seal.

        By contrast, Burner Systems’s expert, Thomas Crane, concluded that the regulator leaked

because Dynamic defectively designed the oven. After testing an exemplar range, Crane found that

the oven’s design exposed the regulator to heat that exceeded the regulator’s maximum operating

temperature. Crane opined that this excess heat caused a degradation of the regulator’s diaphragm

seal, making the oven’s design the presumptive cause of the explosion.

        Donan Engineering, the expert for Siegel and Kentucky Farm, provided an initial report

concluding that the cause of the fire was a “manufacturer’s defect.” The report, however, did “not

specify the precise nature of the alleged manufacturing defect,” how the expert reached its

conclusions, or which manufacturer caused the defect. Siegel v. Kentucky Farm Bureau Mut. Ins.,

No. 3:08cv-00429, 2010 WL 3000746, at *2 (W.D. Ky. July 26, 2010). In response to expert reports

by Burner Systems and Dynamic experts, Donan Engineering muddied the waters even further.

Donan asserted that, if Crane’s measurements could be believed, the explosion could have been


                                                  -3-
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Siegel v. Dynamic Cooking Systems, Inc.


caused by a design defect. However, even if Crane’s measurements were disproved, Donan stated

that “[i]t can still be concluded to a reasonable degree of engineering certainty that the cause and

origin of the loss was internal to the [Dynamic] range.”

       Based on Crane’s report, Burner Systems moved for summary judgment on Dynamic’s

indemnity claim. The district court granted the motion because the experts could not state that a

manufacturing defect was the probable, rather than just a possible, cause of the leak. Siegel, 2010

WL 3000746, at * 5–6. The court noted that it was “unusual” to dismiss an indemnity claim prior

to adjudicating the merits, and acknowledged that it had to make “factual determinations . . . that

would ordinarily be squarely within the province of the jury.” Id. at 5. Nonetheless, the court

dismissed the indemnity claim because Dynamic “simply [could not] meet its burden.” Id. at 6.

       With Burner Systems dismissed from the litigation, the parties proceeded on Siegel’s direct

claim. While considering the parties’ pretrial motions, the district court granted Dynamic’s motion

to exclude Crane from testifying as an expert. The court reasoned that Crane’s methodology was

unreliable and his findings were “a string” of “speculation.” With Crane excluded, Dynamic moved

for summary judgment, which was denied because there was a material issue of fact whether the

accident was caused by an intrinsic defect in the range or an external factor. The court cautioned that

Siegel had a “small evidentiary needle to thread,” but determined that “she ha[d] the right to attempt

it nonetheless.”

       Before trial, the district court made three additional evidentiary rulings that are challenged

on appeal. Dynamic first moved to exclude evidence regarding the cost of potential alternative


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Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


regulators. The district court withheld ruling pending evaluation of the evidence at trial, and

cautioned that evidence of cost would only be allowed if Siegel could show that Dynamic had

considered other regulators, and that the regulator was a probable cause of the accident. The district

court also withheld ruling on Dynamic’s motion to exclude evidence regarding safety improvements

to later model ranges. Finally, Dynamic moved to exclude evidence of other incidents, claims, and

lawsuits. The district court granted this motion, noting that there was no record evidence showing

that the other incidents were “substantially similar” to the one in this case. In addition, the court

noted that the prejudicial effect of this evidence would outweigh its probative value.

       Two days prior to trial, Dynamic produced a list of approximately a dozen warranty claims

where individuals complained that the kickplate on the outside of the range was abnormally hot.

This type of incident would have been consistent with Crane’s theory of defective oven design. The

court determined initially that there was not enough evidence to warrant the admission of these prior

warranty claims because they were not “substantially similar.”

       The district court revisited the issue before the second day of trial. After hearing arguments

on both sides, the court amended its prior ruling and held that plaintiff could introduce Crane’s

findings regarding the temperature measurements he made and whether the range met applicable

American National Standards Institute (ANSI) standards regarding maximum temperature exposures.

However, the court again determined that Crane’s other testimony was unreliable and inadmissible,

including his assertions that high temperatures contributed to the degradation of the regulator on his

exemplar range and that degradation of the regulator was the cause of the explosion. The court also


                                                -5-
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


reaffirmed its exclusion of the prior warranty claims, reiterating that Siegel had still not established

that they represented “substantially similar” incidents.

        At trial, Siegel proceeded under two liability theories: (1) a design defect in the oven and (2)

a manufacturing defect in the regulator. Siegel called two experts from Donan Engineering to testify.

Siegel also presented Crane’s testimony regarding ANSI standards and the higher temperatures

recorded in his exemplar range. Dynamic moved for judgment as a matter of law under Federal Rule

of Civil Procedure 50, which the district court granted. Siegel’s claims against Dynamic were

dismissed with prejudice. Siegel v. Dynamic Cooking Sys., Inc., No. 3:08CV–00429–S, 2010 WL

4884220, *11 (W.D. Ky. Nov. 24, 2010). The court held that there was not sufficient evidence to

support the design defect claim and that Siegel could not rely on circumstantial evidence to prove

her manufacturing defect claim, reasoning that Siegel failed to isolate the probable cause of the

explosion and could not succeed under Kentucky products liability law.

                                                  II

        Dynamic was not entitled to a directed verdict on Siegel’s product liability claim. The court

wrongly held that because Siegel was attempting to prove her manufacturing defect claim through

circumstantial evidence, she had to eliminate all other causes of her injury, and that Siegel

undermined this claim by introducing evidence of a design defect.

        The court erred because a plaintiff like Siegel can prove a product liability claim using the

fact of the malfunction if she eliminates those causes for which the manufacturer would not be liable.

Perkins v, Trailco Mfg. and Sales Co., 613 S.W.2d 855, 857–58 (Ky. 1981). Siegel has done so


                                                 -6-
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


because Dynamic is liable for her injuries regardless of which of her theories the jury adopts. Under

Kentucky law, a manufacturer is liable if it has placed into the market a product that is in a

“defective condition” and is “unreasonably dangerous” to the user or consumer or to his property.

See Turpin v. Stanley Schulze and Co., Inc., No. 2008-CA-298-MR, 2009 WL 875218, at *7 (Ky.

App. Apr. 3, 2009) (citing Nichols v. Union Underwear Co., 602 S.W.2d 429, 431 (Ky. 1980)).

“The product either is or is not unreasonably dangerous to a person who should be expected to use

or be exposed to it. If it is, it can make no difference whether it is dangerous by design or by

accident.” Ulrich v. Kasco Abrasives Co., 532 S.W.2d 197, 200 (Ky. 1976). A plaintiff is not

required to show precisely how a product is defective, but simply must show whether it was

defective. See Kentucky Farm Bureau Mut. Ins. v. General Elec. Co., No. 3:09-cv-915-JHM, 2011

WL 195615, at *3 (W.D. Ky. Jan. 20, 2011).

        For example, in General Electric, the plaintiffs’ dryer caught fire and burned down their

house. Id. The plaintiffs’ expert eliminated all external causes of the fire and identified three

potential causes internal to the dryer. The defendant argued that because plaintiffs could not winnow

down the three potential causes, the balance had not tipped from possible to probable. The General

Electric court rejected the argument because the probable cause of the fire was the dryer, irrespective

of which dryer component failed. The court concluded that “[t]he jury is not left to speculate as to

multiple theories of liability because each of the potential causes is attributable to [defendant].” Id.

at 4. Two other district courts applying Kentucky law have reached similar conclusions. See

Kentucky Farm Bureau Mut. Ins. v. Deere & Co., No. 1:07-cv-8, 2008 WL 339622 (W.D. Ky. Feb.


                                                 -7-
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


6, 2008); Kentucky Farm Bureau Mut. Ins. v. Hitachi Home Elec., No. 3:08-30-DCR, 2009 WL

2760956 (E.D. Ky. Aug. 26, 2009).

       Viewing the evidence in the light most favorable to Siegel, she identified the probable cause

of the fire: the Dynamic range. Siegel heard a strange clicking sound coming from the oven, opened

the door, and a fireball escaped. Siegel eliminated potential external causes for the explosion: the

oven was properly installed, properly used, and properly serviced. Although the experts on which

Siegel relies could not identify the precise internal cause of the explosion, they identified the

Dynamic range as the probable cause of the explosion. This circumstantial evidence was enough to

allow a jury to conclude that Dynamic was liable.

        The Restatement (Third) of Torts supports this conclusion. The Restatement allows a jury

to impose product liability if the incident “was of a kind that ordinarily occurs as a result of product

defect” and was not “solely the result of causes other than product defect.” RESTATEMENT (THIRD )

OF TORTS : PROD . LIABILITY   § 3. The court below required Siegel to prove either a design defect or

a manufacturing defect. The Restatement, however, provides an example contradicting this

requirement:

        Mary purchased a new automobile. She drove the car 1,000 miles without incident.
        One day she stopped the car at a red light and leaned back to rest until the light
        changed. Suddenly the seat collapsed backward, causing Mary to hit the accelerator
        and the car to shoot out into oncoming traffic and collide with another car. Mary
        suffered harm in the ensuing collision. As a result of the collision, Mary’s car was
        set afire, destroying the seat assembly. The incident resulting in the harm is of a kind
        that ordinarily occurs as a result of product defect. Mary need not establish whether
        the seat assembly contained a manufacturing defect or a design defect.



                                                 -8-
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


Id. illus. 2. Siegel’s oven, like Mary’s car, was used without incident for a few years. During

ordinary use, the oven suddenly exploded and destroyed the defective components. Under the logic

expressed in the Restatement, a plaintiff like Siegel need not establish whether the oven contained

a manufacturing defect or design defect.

        Our decision in In re Beverly Hills Fire Lit., 695 F.2d 207, 218 (6th Cir. 1982), does not

require a different conclusion. The Beverly Hills court explained Kentucky’s rule regarding evidence

sufficient to survive a directed verdict:

        “[L]egal causation may be established by circumstantial evidence. While reasonable
        inferences are permissible, a jury verdict must be based on something other than
        speculation, supposition or surmise. The type of evidence that will support a
        reasonable inference must indicate the probable as distinguished from a possible
        cause . . . . There must be sufficient proof to tilt the balance from possibility to
        probability.”

Id. (quoting Huffman v. S.S. Mary & Elizabeth Hosp., 475 S.W.2d 631, 633 (Ky. 1972)). Based on

this language, Dynamic argues that a plaintiff must show which defect inside a product caused the

alleged injuries. Dynamic ignores, however, a key portion of the Kentucky rule:

        Where an incident could result from more than one cause, plaintiff tips the balance
        from possibility to probability only by ruling out other theories of causation:
        “[W]here an injury may as reasonably be attributed to a cause that will excuse the
        defendant as to a cause that will subject it to liability, no recovery can be had.”

Id. (quoting Sutton’s Adm’r v. Louisville & N. R. Co., 181 S.W. 938, 940 (1916)). As this language

makes clear, isolating the cause of the injury is required where the alternative cause is one that “will

excuse the defendant” from “liability.” Id. That is not the case here. Siegel presented two potential




                                                 -9-
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


causes for her injury, both of which place responsibility on Dynamic. It is therefore necessary to

reverse the district court’s judgment in favor of Dynamic.

                                                  III

        Siegel raises several evidentiary issues as alternative bases for reversal. We reject these

arguments because the district court did not abuse its discretion in making the challenged

determinations, for the reasons given below. On retrial, however, the district court will not be

precluded from revisiting these determinations within the scope of its discretion.

A.      Exclusion of Thomas Crane’s Testimony

        First, the district court did not abuse its discretion by excluding the expert testimony of

Thomas Crane. A trial judge’s discretion to exclude expert testimony is guided by Federal Rule of

Evidence 7022 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). The trial

court acts as a “gatekeeper” that ensures that “any and all scientific testimony or evidence admitted

is not only relevant, but reliable.” Pluck v. BP Oil Pipeline Co., 640 F.3d 671, 677 (6th Cir. 2011).

In this role, the trial court considers “whether the reasoning or methodology underlying the testimony

is scientifically valid.” Id. Daubert sets forth a nonexclusive list of factors relevant to this inquiry:

“(1) whether the theory or technique can be or has been tested; (2) whether it ‘has been subjected to

peer review and publication’; (3) whether there is a ‘known or potential rate of error’; and (4)


        2
          Under Rule 702, a qualified expert can provide opinion testimony if: “(a) the expert’s
scientific, technical, or other specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the
testimony is the product of reliable principles and methods; and (d) the expert has reliably applied
the principles and methods to the facts of the case.”
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Siegel v. Dynamic Cooking Systems, Inc.


whether the theory or technique enjoys general acceptance in the relevant scientific community. Id.

(citing Daubert, 509 U.S. at 593–94). We have recognized a fifth common factor: whether the

proposed testimony grows of independent research or if the opinions were developed “expressly for

the purposes of testifying.” Smelser v. Norfolk S. Ry. Co., 105 F.3d 299, 303 (6th Cir. 1997),

abrogated on other grounds by Morales v. American Honda Motor Co., 151 F.3d 500 (6th Cir.

1998)).

          Crane agreed with the other experts that the gas leak originated in the range’s regulator and

that the regulator was too damaged to reveal whether the leak was caused by a design or

manufacturing defect. With this in mind, Crane acquired and tested an “exemplar” Dynamic range

of the same model. This range, fueled by natural gas, had been used daily for approximately five

years. Siegel’s range, by comparison, was fueled by propane and had been used infrequently for 13

months.

          Crane first tested the exemplar range using natural gas, and determined that “higher than

anticipated temperatures were generated” near the regulator, though he did not specify what

temperatures were recorded, or what temperatures were anticipated. Crane then examined the

regulator under a microscope, observing “a deteriorated surface of the diaphragm and irregular

crazing and ‘pock marks’ which would be consistent with the deterioration of the Buna rubber

material due to high temperatures.”

          Crane converted the exemplar range from natural gas to propane gas and resumed testing.

During the subsequent testing, the temperature near the range’s regulator reached 259 degrees


                                                 - 11 -
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


Fahrenheit, even though the regulator was designed to operate at temperatures no higher than 225

degrees. Crane also tested a newer model Dynamic range, which had an added piece of sheet metal

separating the oven combustion chamber from the regulator. The temperatures around the regulator

in the newer range did not exceed 225 degrees. Crane determined it was “reasonable to conclude,”

based on these tests, “that temperature degradation of the perimeter diaphragm seal contributed to

the leak which created the fugitive gas.”

       The district court did not abuse its discretion by excluding this testimony because the court

appropriately applied the requisite factors. The district court noted that Crane’s report was “detailed

and clear,” but determined that Crane’s opinions were “founded largely on speculation.” The court

identified a number of problems with Crane’s methodology that undermined the reliability of his

conclusions: Crane had not (1) addressed the differences in historical usage between the exemplar

range and Siegel’s range; (2) analyzed the impact of the use of two different fuel types; (3) tested or

examined multiple exemplar ranges; (4) gathered historical data regarding leaking regulators; or (5)

addressed why the regulator in the exemplar range had not failed during five years of use or during

testing. The district court concluded that Crane’s opinion “contains not just one speculation but a

string of them.” Therefore, although the hypothesis was plausible, the testing was not reliable

enough to warrant admission under the Federal Rules of Evidence.

       Underlying the district court’s decision were the obvious differences between the exemplar

range and the Siegel range. The exemplar range was used ten times more than Siegel’s oven, was

fueled by a different gas, and the regulator did not fail. These differences undermined the reliability


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Siegel v. Dynamic Cooking Systems, Inc.


of Crane’s experimentation. As noted above, the Daubert inquiry is “directed at the science and

methodology behind the witness’s testimony.” Legg v. Chopra, 286 F.3d 286, 291 (6th Cir. 2002).

The court did not balance expert opinions, evaluate the correctness of any of the data, or determine

whether Crane’s opinion was plausible. Instead, the district court focused on the inadequacies of

Crane’s methodology, a determination properly within the ambit of Daubert.

       Finally, Siegel takes issue with the trial court’s decision to take “judicial notice” of the fact

that propane is used at a higher pressure gas than natural gas. However, we have approved taking

judicial notice of commonly known and widely accepted scientific principles. For example, in

Fowler v. Tennessee Val. Auth., 321 F.2d 566, 570 (6th Cir. 1963), we held that “[i]t is common

knowledge that, if an electric power line is grounded by a conductor, electric current will flow

through the conductor.” Taking notice of the relative pressure exerted by propane verses natural gas

is a similarly commonly known and accepted scientific principle. This ruling by the district court

was also not an abuse of discretion.

B.     Other Evidentiary Issues

       The district court also did not, as Siegel claims, abuse its discretion by excluding evidence

of prior accidents, which may only be introduced when such accidents are “substantially similar” to

the one at issue. Rye v. Black & Decker Mfg. Co., 889 F.2d 100, 102 (6th Cir. 1989). “Substantial

similarity means that the accidents must have occurred under similar circumstances or share the same

cause.” Id.




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Siegel v. Dynamic Cooking Systems, Inc.


        Siegel sought to introduce evidence of other claims involving gas leaks from the same model

range. Siegel argued that these incidents showed that gas leakage was a pervasive problem in

Dynamic ranges, but offered no evidence that these leaks occurred under conditions substantially

similar to this case. She has not shown, for example, that leaks in the prior incidents originated in

the regulator. Siegel argues that Dynamic “did nothing to rule out the regulator as the source of the

leak in these other incidents.” But Siegel, not Dynamic, has the burden to show substantial

similarity.

        Similarly, it was within the court’s discretion to deny Siegel’s attempt to admit customer

complaints about heat emanating from the oven kickplate. Siegel argues that these customer

complaints are consistent with Crane’s theory that the oven was defectively designed. The district

court agreed and admitted a portion of Crane’s testimony regarding the kickplate based on this

evidence. However, the district court did not abuse its discretion by excluding evidence of heat

complaints because, once again, Siegel did not show similarity—that is, that heat from the kickplates

in the other ovens caused a gas leakage or any other damage.

        The district court likewise did not abuse its discretion in excluding evidence regarding design

changes that Dynamic made to later model ranges or the cost of such changes. Under Rule 407 of

the Federal Rules of Evidence, subsequent design changes are not admissible to prove a design

defect, but may be admitted to prove the feasibility of precautionary measures, if disputed. See

Bauman v. Volkswagenwerk Aktiengesellschaft, 621 F.2d 230, 233 (6th Cir.1980). Dynamic

conceded the feasability of remedial measures; therefore, the evidence was inadmissible.


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Siegel v. Dynamic Cooking Systems, Inc.


                                                 IV

       As for Dynamic’s common-law indemnity claim, Burner Systems was entitled to summary

judgment because there was not sufficient evidence for a jury to conclude on a more-probable-than-

not basis that the oven explosion was caused by a manufacturing defect in the regulator. Common-

law indemnity has survived Kentucky’s passage of a comparative negligence scheme, and is

appropriate where a party is secondarily liable for the acts of another. See Degener v. Hall Contr.

Corp., 27 S.W.3d 775, 780–81 (2000). To prevail on such an indemnity claim, Dynamic had to

show that a manufacturing defect in the regulator existed at the time of sale and that the defect was

a probable cause of the injury. See Calhoun v. Honda Motor Company, Ltd., 738 F.2d 126, 130 (6th

Cir. 1984). While causation can be proved “either by direct or circumstantial evidence,” id., reliance

on circumstantial evidence “must be sufficient to tilt the balance from possibility to probability.”

Perkins, 613 S.W.2d at 857 (internal quotation marks omitted). Moreover, “where an injury may

as reasonably be attributed to a cause that will excuse the defendant as to a cause that will subject

it to liability, no recovery can be had.” Sutton’s Adm’r, 181 S.W. at 940.

       For example, in Midwestern V.W. Corp. v. Ringley, 503 S.W.2d 745 (Ky. 1973), the plaintiff

sued the manufacturer of her Volkswagen after she crashed into a telephone pole. The plaintiff

claimed that a manufacturing defect in the brake drum caused the car to swerve into the pole. At

trial, the plaintiff’s witnesses testified that a number of factors could have caused the car to

swerve—a brake-drum defect, dirt or water in the brake lining, improper adjustment of the drum,

or improper tire pressure. Because the evidence was equivocal, the court reversed a jury verdict in


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Siegel v. Dynamic Cooking Systems, Inc.


favor of the plaintiff. Id. at 748. The court reached a similar conclusion in Briner v. General Motors

Corp., 461 S.W.2d 99 (Ky.1970). The Briner plaintiff sued her car’s manufacturer, alleging that

vibrations in her automobile had caused a collision. Her experts offered a variety of possible causes

of the vibrations, only some of which were attributable to the manufacturer. The court affirmed a

directed verdict in favor of the manufacturer because the plaintiff could not show that the

manufacturer’s conduct was anything more than a possible cause of the accident. Id. at 101.

       Dynamic’s expert—like the experts in Ringley and Briner—failed to “tilt the balance”

because he could not isolate the regulator as the probable cause of Siegel’s injury. That expert, Mark

Mulcahy, prepared two reports for Dynamic in anticipation of litigation. In the first report, Mulcahy

concluded that gas leakage occurred at the regulator as a result of the failure of the internal rubber

diaphragm. According to Mulcahy, this failure was the result of a tear caused either during the

manufacturing process or by excessive gas pressure. Mulcahy found that there was “[i]nsufficient

evidence” to “assign[] engineering probability to either scenario.” R. 83-7, Mulcahy Report, at 4.

In a subsequent report—prepared in response to Crane’s expert report—Mulcahy modified his

opinion and agreed that the probable cause of the explosion was a failure of the perimeter diaphragm.

R. 83-8, Mulcahy Supp. Report, at 4. However, Mulcahy was still unable to determine the probable

cause of the perimeter diaphragm failure. Instead, Mulcahy presented three different scenarios that

could have caused the failure, only one of which was a manufacturing defect attributable to Burner

Systems. This is so because “[d]amage to the regulator was sufficient . . . to preclude identifying a

specific scenario for development of leakage at the onset of the event.” Id. at 6.


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        Mulcahy’s later testimony confirmed that the regulator was not defectively designed and that

the potential leak scenarios listed in his supplemental report were only possible (not probable) causes

of the leak. Nowhere did he opine as to the probable cause of the failure of the perimeter diaphragm.

        Summary judgment on the indemnity claim before resolution of the direct claim, moreover,

was not an abuse of discretion. Dynamic takes out of context the Kentucky Supreme Court’s

statement that “[i]ndemnity is not an issue until fault has been determined.” See Clark v. Hauck Mfg.

Co., 910 S.W.2d 247, 253 (Ky. 1995). That case merely stands for the proposition that “[t]here can

be no indemnity without liability,” and does not purport to preclude categorically the dismissal of

an indemnity claim before primary fault has been determined. Id. Dynamic correctly notes that, in

practice, the liability determination generally precedes a determination on indemnity. Of course, this

procedure prevents a premature assignment of indemnity liability when there is no actual liability.

Id. However, in some instances, summary judgment may be preferable, especially where the third

party defendant has less of a connection to the underlying action. For example, if Tom hit Richard

with a car, Richard could sue Tom. If Tom then sued Harry seeking indemnity, a pre-trial

determination might be appropriate if Harry had absolutely no connection to Tom, the car, or the

accident. The court should not force Harry to continue to be a party to the suit where he has no

discernible liability for the claim.

        In the instant case, there is no evidence that the pretrial dismissal of the indemnity claim was

an abuse of discretion. Discovery had been completed, including all expert opinions and reports, and

the parties were fully briefed on the summary judgment motions. Most importantly, Dynamic had


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Siegel v. Dynamic Cooking Systems, Inc.


not produced sufficient evidence to carry its burden on its indemnity claim. As discussed above, no

reasonable jury could have found that a manufacturing defect was a probable, rather than a possible,

cause of the accident. Accordingly, dismissing the indemnity claim against Burner was not an abuse

of discretion.

       This result is not fundamentally unfair, as argued by Dynamic, even though Crane was later

excluded as an expert. Dynamic relies on the district court’s later statement that “had Mr. Crane’s

testimony been excluded prior to the court’s consideration of Burner Systems’ motion, there would

have been . . . no risk that a jury would have been asked to engage in impermissible speculation

about which company’s actions caused the regulator to fail.” Notwithstanding this statement,

Dynamic’s argument fails because Crane’s testimony was largely irrelevant to the disposition of the

indemnity issue. Dynamic bore the burden of proving that a manufacturing defect was a probable

cause of Siegel’s injuries. Dynamic’s own expert could not identify a probable cause. Even if

Crane’s testimony had been excluded at the summary judgment stage, the exclusion would not have

cured Dynamic’s proof problem. The exclusion of Crane’s opinion is not relevant; what is

dispositive was Mulcahy’s inability to identify the regulator as a probable cause.

       This conclusion is not in tension with reversal of the directed verdict against Siegel. There

was sufficient evidence to get to the jury on the claim against Dynamic because testimony

established some defect in the oven as a probable cause. But there was no such testimony to

establish component manufacturer liability. Without sufficient evidence, summary judgment was

warranted in favor of the component manufacturer.


                                               - 18 -
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


        Our analysis is not affected by the provision in Kentucky’s comparative negligence statute,

KY . REV . STAT . § 411.182, which provides for direct recovery by the plaintiff, on an apportioned

basis, against multiple parties, including third party defendants, whose culpability each contributed

to an injury. In Kentucky, “apportionment of liability arose from statutory provisions permitting

contribution and several liability among joint tortfeasors in pari delicto.” See Degener, 27 S.W.3d

at 780. The right of apportionment and contribution only “‘exists where there [is] concurring or

combined negligence causing the same injury.’” Hall v. MLS Nat. Medical Eval., Inc., No.

05-185-JBC, 2007 WL 1385943 (E.D. Ky. May 8, 2007) (quoting Elpers v. Kimbel, 366 S.W.2d

157, 161 (Ky. 1963)). “Because contribution claims often require the apportionment of causation

between or among joint tortfeasors on a pro rata basis, the right of contribution has been discussed

by at least some Kentucky courts as contribution and apportionment.” Id. (internal quotation marks

omitted). Such liability does not appear to have been pleaded or argued. In any event, apportioned

liability still requires proof of the same elements of liability against the impleaded party, including

causation in a product liability case. As the Kentucky Supreme Court has stated, “[f]ault may not

be properly allocated to a party, a dismissed party or [a] settling nonparty unless the court or the jury

first finds that the party was at fault; otherwise, the party has no fault to allocate.” Owens Corning

Fiberglas Corp. v. Parrish, 58 S.W.3d 467, 471 n.5 (Ky. 2001). As discussed above, Dynamic

failed to bring forth sufficient evidence for a jury to find that Burner manufactured a defective part.




                                                 - 19 -
Nos. 10-6491; 10-6532
Siegel v. Dynamic Cooking Systems, Inc.


                                                V

       Because Burner Systems prevailed against Dynamic’s common-law indemnity claim, a

decision we now affirm, the district court properly taxed costs against Dynamic under Federal Rule

of Civil Procedure 54(d)(1).

                                                VI

       The district court’s decision is affirmed in part, reversed in part, and remanded for further

proceedings.




                                              - 20 -
