                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 12a1307n.06

                                           No. 11-6221
                                                                                         FILED
                                                                                      Dec 21, 2012
                          UNITED STATES COURT OF APPEALS
                                                                               DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


ARCH INSURANCE COMPANY,
MONTGOMERY COUNTY FIRE
PROTECTION DISTRICT NO. 1, &
MONTGOMERY COUNTY FIRE &
PROTECTION PROPERTIES, INC.,
                                                        ON APPEAL FROM THE UNITED
       Plaintiffs-Appellees,                            STATES DISTRICT COURT FOR THE
                                                        EASTERN DISTRICT OF KENTUCKY
v.

BROAN-NUTONE, LLC,

       Defendant-Appellant.

                                               /


BEFORE:        BOGGS and CLAY, Circuit Judges; STAFFORD, District Judge.*

       CLAY, Circuit Judge. Defendant Broan-NuTone, LLC appeals multiple orders of the

district court following a jury verdict in favor of Plaintiffs Arch Insurance Company and

Montgomery County Fire Protection District 1 (collectively “Plaintiffs”) in their diversity action

under the Kentucky products liability statute, Ky. Rev. Stat. §§ 411.300 et seq. Defendant appeals

the jury verdict and judgment and the district court’s denial of its motions for judgment as a matter

of law. For the reasons set forth below, we AFFIRM the district court’s judgment and orders.




       *
         The Honorable William H. Stafford, Senior United States District Judge for the Northern
District of Florida, sitting by designation.
                                             No. 11-6221



                                          BACKGROUND

I.     Procedural History

       This case arises out of a fire that occurred at Montgomery County Fire Station 1 in Mt.

Sterling, Kentucky, on September 17, 2007. Plaintiff Montgomery County Fire Protection District

1 was compensated for the resulting property damage by its insurance carrier, Plaintiff Arch

Insurance Company. After an investigation, Arch Insurance determined that the cause of the fire was

a defective fan/light assembly manufactured by Defendant Broan NuTone, LLC.

       On September 16, 2009, Plaintiffs filed a subrogation action in Montgomery County Circuit

Court against Defendant to recover the cost of the insurance claim. On September 29, 2009, the case

was removed to the United States District Court for the Eastern District of Kentucky, pursuant to that

court’s diversity jurisdiction under 28 U.S.C. § 1332. Prior to trial, Plaintiffs negligently allowed

key evidence to be destroyed, and Defendant moved the district court to consider sanctions for the

spoliation of evidence. On August 31, 2011, the district court ordered that the jury be given a

permissive adverse inference instruction at trial.1



       1
           The jury was ultimately instructed as follows:

       The jury is instructed that Plaintiffs negligently failed to preserve the fan/light device
       in the northern stall which they contend caused the fire, and negligently failed to
       preserve the fan/light device in the southern stall, and associated wiring, and circuit
       panels.      You have heard evidence that SEM/EDS (Scanning Electron
       Microsocpe/Energy Dispersive Spectroscopy) testing of the fan/light would have
       confirmed or refuted Plaintiff’s theory of causation. Because Plaintiffs did not
       preserve the evidence, the jury may infer that this further testing would have
       disproved Plaintiffs’ causation theories.

                                                   2
                                           No. 11-6221

       A jury trial was held in the matter from September 12–16, 2011. At the close of Plaintiffs’

case and at the conclusion of all evidence, Defendant orally moved the district court to grant

judgment as a matter of law pursuant to Federal Rule of Civil Procedure 50(a) on the issues of

liability and damages. The district court denied the motions.

       On September 16, 2011, the jury found that the fan/light assembly manufactured by

Defendant departed from its intended design, and that the manufacturing defect was a substantial

factor in causing Plaintiffs’ injury. The jury returned a damages award in Plaintiffs’ favor of

$463,010.35 for injury to real property, $4,239.60 for loss of personal property, and $9,574.61 for

loss of clothes and household goods. The district court entered judgment consistent with the jury’s

verdict on September 20, 2011. Defendant filed a timely notice of appeal on October 7, 2011,

invoking this Court’s jurisdiction under 28 U.S.C. § 1291.

II.    Facts

       Montgomery County Fire Protection District 1 operated the fire department out of a property

that it leased from the City of Mt. Sterling, Kentucky. The property caught fire on September 17,

2007, and was significantly damaged. Under the terms of its lease, Montgomery County Fire was

obligated to indemnify the City of Mt. Sterling for any damage to the building. In December 2007,

Montgomery County Fire’s insurance carrier, Arch Insurance Company, paid approximately

$463,000 to the City of Mt. Sterling for the damage to the building caused by the fire.

       On October 17, 2007, one month after the fire, Plaintiffs’ insurance adjuster wrote to

Defendant stating, “The fire is believed to have started in the model QRE 090 FL-B Exhaust Fan

with light.” (R. 92-1, Aff. of Elliot Duncan, Ex. 1.) The fan/light assembly in question had been


                                                3
                                              No. 11-6221

installed in the ceiling of a bathroom stall inside the fire station. On November 1, 2007, a formal

site inspection was conducted. At this inspection, evidence was collected, including the fan/light

assembly that was the target of the investigation. Both parties’ experts participated in the inspection

and removal of the fan/light assembly and associated wiring from the scene. The evidence was taken

into custody by Donan Engineering, which had been retained by the City of Mt. Sterling to

investigate the fire, and was kept at their offices in Louisville, Kentucky.

        After a second inspection of the physical evidence attended by representatives of both parties,

Plaintiffs’ insurance adjuster sent another letter to Defendant on March 6, 2008, stating that “as a

result of our investigation, it has been determined that the cause and origin of the fire was in a ceiling

fan and light combination manufactured by Broan NuTone.” (R. 92-1, Aff. of Elliot Duncan, Ex. 2.)

In April 2008, Donan Engineering sent an invoice for evidence storage to Collins & Company, a

third-party administrator representing the City of Mt. Sterling. Apparently wanting to avoid further

storage fees, Collins & Company authorized Donan to discard the evidence without first consulting

either Plaintiffs or Defendant.

        At trial, Plaintiffs’ expert William Mers Kelly testified that the fire was caused when wires

inside the fan/light assembly came into contact with the sharp edge of a metal support bracket. This

contact caused “notching,” which eventually compromised the insulation around the wires and

exposed the copper underneath. A similar fan/light assembly that did not catch fire was removed

from another stall in the bathroom and exhibited similar “notching.” The compromised insulation

led to localized heating which eventually ignited surrounding combustible materials and started the

fire.


                                                    4
                                            No. 11-6221

       Defendant’s expert Richard Kovarsky testified that a certain type of scientific test—Scanning

Electron Microscope/Energy Dispersive Spectroscopy (“SEM/EDS”)—would absolutely confirm

or refute Plaintiffs’ theory of causation. This test would show whether traces of the copper wire

could be found on the metal bracket and vice versa, thus confirming or refuting Plaintiffs’ theory that

the insulation around the wires was compromised by the sharp edge of the bracket. However, the

test was not conducted before the evidence was destroyed.

                                           DISCUSSION

I.     Spoliation Instruction

       We review for an abuse of discretion the district court’s decision to impose sanctions for

evidence spoliation, “[g]iving great deference to the district court’s credibility determinations and

findings of fact.” Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 554 (6th Cir. 2010). District courts

have “broad discretion in crafting a proper sanction for spoliation.” Adkins v. Wolever, 554 F.3d

650, 652 (6th Cir. 2009) (en banc). “A court abuses its discretion when it commits a clear error of

judgment, such as applying the incorrect legal standard, misapplying the correct legal standard, or

relying upon clearly erroneous findings of fact.” Jones v. Ill. Cent. R.R. Co., 617 F.3d 843, 850 (6th

Cir. 2010) (internal quotation marks and citation omitted).

       Defendant argues that it was irreparably prejudiced by the loss of the evidence, and that we

should either reverse the judgment and dismiss Plaintiffs’ complaint or grant a new trial in which

the jurors are instructed that they must presume that the evidence was adverse to Plaintiffs. For their

part, Plaintiffs do not dispute that some spoliation sanction was proper, but they argue that the

district court’s adverse inference instruction was too severe. “[A] proper spoliation sanction should


                                                  5
                                            No. 11-6221

serve both fairness and punitive functions.” Adkins, 554 F.3d at 652. The district court properly

considered both the fairness and punitive functions of possible spoliation sanctions, as well as the

alternatives requested by Defendant, and concluded that an adverse inference instruction was

appropriate.

       A.      Fairness

       The district court considered relevant facts and chose a sanction that was fair to both parties.

Defendant argues that its experts never had the opportunity to examine the fan/light assembly until

after it was notified of Plaintiffs’ theory of causation. Had they been able to conduct SEM/EDS

testing, Defendant argues, Plaintiffs’ theory of causation would have been positively confirmed or

refuted. Undoubtedly Defendant was prejudiced by its inability to conduct these tests, as the district

court readily acknowledged. But Defendant did not lose the opportunity to present a defense to

Plaintiffs’ claim, nor was it totally blindsided by Plaintiffs’ causation theory.

       On the contrary, Defendant had notice of the general nature of Plaintiff’s theory, as well as

several opportunities to inspect the fan/light assembly before it was destroyed. Plaintiffs’ insurance

adjuster sent two letters to Defendant before the evidence was destroyed, each stating specifically

that the fire was determined to have been caused by the fan/light assembly manufactured by

Defendant. Defendant’s expert, Richard Kovarsky, was present for a formal site inspection on

November 1, 2007, as well as an additional inspection of the physical evidence on November 29,




                                                  6
                                             No. 11-6221

2007. The fan/light assembly was destroyed in April 2008, but Defendant did not express a desire

to conduct further tests until March 2009, nearly one year later.2

        Nevertheless, the destruction of the evidence was prejudicial. Defendant was unable to

definitively refute Plaintiff’s causation theory. Defendant could and did present its own expert

testimony, however, which put before the jury alternative causation theories. Additionally,

Defendant was able to argue to the jury that Plaintiffs had negligently allowed the fan/light assembly

to be destroyed, and the jury was instructed that they could infer that further testing would have

disproved Plaintiffs’ causation theory.

        Based on these facts, the district court’s selection of a permissive adverse-inference

instruction was appropriate. Under certain extreme circumstances, as when spoliation denies a

defendant access to “the only evidence from which it could develop its defenses adequately,”

dismissal of an action may be a proper sanction. See Silvestri v. Gen. Motors Corp., 271 F.3d 583,

593–94 (4th Cir. 2001). However, dismissal is a “particularly severe sanction,” Chambers v.

NASCO, Inc., 501 U.S. 32, 45 (1991), and is “usually justified only in circumstances of bad faith or

other like action.” Silvestri, 271 F.3d at 593. No allegations of bad faith have been leveled against

Plaintiffs in this case, and Defendant was not denied the ability to develop its defenses adequately.




        2
          At oral argument, Plaintiffs claimed that Kovarsky had testified that he had an idea of what
Plaintiffs’ causation theory would be. At trial, Kovarsky testified that Plaintiffs were “looking at that
fixture [the fan/light assembly] and those wires with interest . . . . In terms of the specific
mechanism that they were considering, no, I did not know the specifics . . . .” (R. 132, Trial Tr. 78.)
This testimony confirms that Defendant was aware that the fan/light assembly was the target of the
investigation, if not the exact details of Plaintiffs’ causation theory.

                                                   7
                                             No. 11-6221

        B.       Punishment

        The district court concluded that Plaintiffs were negligent in allowing the fan/light assembly

to be destroyed, and they have not challenged that conclusion in this Court. The sanction of a

permissive adverse-inference instruction is adequate punishment for Plaintiffs’ negligent conduct.

A spoliation sanction’s “severity should correspond to the district court’s finding after a fact-

intensive inquiry into a party’s degree of fault under the circumstances, including the recognition that

a party’s degree of fault may range from innocence through the degrees of negligence to

intentionality.” Beaven, 622 F.3d at 554 (internal quotation marks and citation omitted).

        Plaintiffs knew or should have known that the City of Mount Sterling, which leased the

firehouse to Montgomery County Fire, had engaged Donan Engineering through its agent, Collins

& Company, a third-party administrator. The City never pursued a claim against Defendant because

it was fully indemnified against loss by its lease agreement with Montgomery County Fire.

Therefore, it had no reason to continue paying for the storage of the fan/light assembly at Donan

Engineering’s facility. Given these circumstances and the fan/light assembly’s critical relevance to

its potential claim against Defendant, Plaintiffs should have taken steps to ensure that the evidence

was preserved.

        Although Plaintiffs’ negligence caused the evidence to be destroyed, the district court’s

finding that they did not knowingly or purposefully cause the destruction is supported by the record

and is not clearly erroneous. Plaintiffs did not learn of the destruction until November 2008, some

seven months after Donan Engineering had discarded the fan/light assembly. They did not destroy

the evidence to conceal any facts, nor did they do so in an attempt to prevent Defendant from


                                                   8
                                             No. 11-6221

discovering relevant facts. The district court tailored the severity of its sanction to correspond to

Plaintiffs’ degree of fault. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108

(2d Cir. 2002) (“[The] sanction [of an adverse inference] should be available even for the negligent

destruction of documents if that is necessary to further the remedial purpose of the inference.”)

(internal quotation and citation omitted).

        C.      Alternative Instructions

        The district court considered and rejected alternative spoliation sanctions requested by

Defendant, among which were a mandatory adverse-inference instruction, a presumption instruction,

and outright dismissal of the action. Instead of these, the district court gave a permissive adverse-

inference instruction, telling the jurors that they “may infer” that further tests would have refuted

Plaintiffs’ causation theory.

        In the context of spoliation sanctions, adverse-inference instructions are typically permissive,

in that they allow, but do not require, the factfinder to infer a given fact. See Beaven, 622 F.3d at

555 (“[A]n adverse inference is usually only permissive for the factfinder, not mandatory . . . .”); Dae

Kon Kwon v. Costco Wholesale Corp., 469 F. App’x 579, 580 (9th Cir. 2012) (“A fact finder may

draw an inference against any party that destroys or despoils evidence, but that inference is

permissive rather than mandatory.”). A permissive instruction is particularly appropriate if the

evidence was not intentionally destroyed. See Blinzler v. Marriott Int’l, Inc., 81 F.3d 1148, 1159 (1st

Cir. 1996) (“[T]he adverse inference is permissive, not mandatory. If, for example, the factfinder

believes that the [evidence was] destroyed accidentally or for an innocent reason, then the factfinder

is free to reject the inference.”).


                                                   9
                                             No. 11-6221

        Defendant argues that the permissive instruction gave it “nothing it did not already possess”

because the jury is always free to infer facts. Defendant cites to West v. Tyson Foods, Inc., 374 F.

App’x 624 (6th Cir. 2010), which described a permissive adverse-inference instruction as “simply

a formalization of what the jurors would be entitled to do even in the absence of a specific

instruction.” Id. at 635. This description properly emphasizes that the jury’s discretion to draw

inferences warranted by the evidence remains the same with or without a permissive instruction.

This Court did not state in Tyson Foods that a permissive instruction has no effect at all. On the

contrary, the instruction came dressed in the authority of the court, giving it more weight than if

merely argued by counsel. See Boyde v. California, 494 U.S. 370, 384 (1990) (noting that

“arguments of counsel . . . are usually billed in advance to the jury as matters of argument, not

evidence” but instructions from the court “are viewed as definitive and binding statements of the

law”). In choosing a permissive adverse inference instruction, the district court properly balanced

the interests of the parties and punished Plaintiffs’ culpable behavior. Therefore, the district court’s

choice of sanction was not an abuse of discretion.

II.     Measure of Damages for Injury to Real Property

        We review the “legal accuracy of jury instructions de novo,” United States v. Blanchard, 618

F.3d 562, 571 (6th Cir. 2010), and the denial of a proposed jury instruction for an abuse of

discretion. King v. Ford Motor Co., 209 F.3d 886, 897 (6th Cir. 2000). The district court has broad

discretion in framing jury instructions. Id. We review the jury instructions as a whole to decide

whether they adequately informed the jury of the relevant considerations and provided a basis in law

to assist the jury in reaching its decision. Id. We will reverse “only if the instructions, viewed as


                                                  10
                                             No. 11-6221

a whole, were confusing, misleading, or prejudicial.” Beard v. Norwegian Caribbean Lines, 900

F.2d 71, 72–73 (6th Cir. 1990).

        In a diversity action, state law determines the substance of the jury instructions, but federal

law governs the standard of review and any questions concerning the propriety of the instructions.

King, 209 F.3d at 897. “In interpreting state law, we apply the law of the state’s highest court, and

when the state’s highest court has not ruled on an issue, we must ascertain the state law from all

relevant data, including the state’s intermediate court decisions.” Herrera v. Churchill McGee, LLC,

680 F.3d 539, 544 (6th Cir. 2012) (internal quotation marks omitted). “Kentucky follows the ‘bare-

bones’ principle in providing jury instructions.” McGuire v. Commonwealth, 885 S.W.2d 931, 936

(Ky. 1994). The instructions “should not contain an abundance of detail, but should provide only

the bare bones of the question for jury determination. This skeleton may then be fleshed out by

counsel on closing argument.” Ball v. E.W. Scripps Co., 801 S.W.2d 684, 691 (Ky. 1990) (internal

quotation and citation omitted).

        Defendant argues that it was prejudiced by the district court’s damages instruction.3

Defendant contends that Kentucky law requires plaintiffs to present, as part of a prima facie case,

evidence of both the cost of restoration and the diminution in fair market value of the damaged

property. However, Kentucky specifically does not require a plaintiff in an injury-to-property case

to present both types of evidence as part of a prima facie case. “[A] plaintiff seeking restoration cost


        3
            The jury was instructed as follows:

        If you find for Plaintiffs you will determine from the evidence and award a sum of
        money in an amount equal to the reasonable cost of restoring the building to
        substantially the same condition as immediately before it was damaged by the fire.

                                                  11
                                            No. 11-6221

damages in an injury-to-property case need not introduce evidence of a diminution in the fair market

value of the property in order to state a prima facie case and overcome a motion for directed verdict

because reasonable inferences may be drawn from evidence of restoration costs . . . .” Ellison v. R

& B Contracting, Inc., 32 S.W.3d 66, 74 (Ky. 2000); see also Mountain Water Dist. v. Smith, 314

S.W.3d 312, 315 (Ky. Ct. App. 2010) (finding “no Kentucky authority which states the burden of

proving damages in an injury-to-property case requires the claimant to demonstrate both cost of

repair damages and diminution in value damages”).

       In Ellison, the Kentucky Supreme Court described at length the procedure for measuring

damages in injury-to-property cases. Defendant relies heavily on Ellison’s directive that “trial courts

shall require the jury to find whether the injury may be repaired at a cost less than the diminution in

the value of the property, and, if the jury finds otherwise, limit the claimant’s recovery to the

diminution in the value of the property.” Ellison, 32 S.W.3d at 70. But Defendant ignores Ellison’s

factual context as well as its statement that plaintiffs need not present evidence of both types of

damages as part of a prima facie case. Ellison dealt with an injury to property where the cost to

repair damage was substantially higher than the diminution in fair market value of the property. Id.

at 69. Crucially, evidence of both amounts was presented at trial. Id. Ellison stands for the principle

that when evidence of both restoration cost and fair market value has been presented to the jury, the

jury must be instructed to award the lesser of the two amounts. See id. at 70–71; see also Mountain

Water Dist., 314 S.W.3d at 315 (“The effect of Ellison is to prevent a claimant from seeking cost of

repair damages that exceed the diminution in fair market value.”). Jury instructions flow from the




                                                  12
                                            No. 11-6221

evidence presented, not the other way around. Defendant could have, but did not, present any

evidence of fair market value.

       Without evidence of fair market value, the district court instructed the jury to measure

damages by referencing the reasonable cost of restoring the building to its pre-fire condition. “In the

absence of evidence to the contrary, it may be presumed that the anticipated cost of repair would

reduce the value by an equal amount.” Newsome v. Billips, 671 S.W.2d 252, 255 (Ky. Ct. App.

1984), cited with approval in Ellison, 32 S.W.3d at 74. Therefore, the district court’s instruction

complied with Ellison’s requirement that the jury find the lesser of the two amounts. Because the

district court properly characterized Kentucky law, its instruction to the jury on the issue of damages

was proper.4

III.   Rule 50 Motions

       The denial of a motion for judgment as a matter of law is reviewed de novo. Andler v. Clear

Channel Broad., Inc., 670 F.3d 717, 723 (6th Cir. 2012). In diversity cases, where a Rule 50 motion

is based on a challenge to the sufficiency of the evidence, “a state-law standard of review applies.”

Ventas, Inc. v. HCP, Inc., 647 F.3d 291, 313 (6th Cir. 2011). In Kentucky, the standard of review

governing a motion for judgment as a matter of law is as follows:



       4
          This Court’s decision in Lichtefeld v. Mactec Eng’g & Consulting, Inc., 239 F. App’x 97
(6th Cir. 2007), is not to the contrary. In that case, this Court reversed the district court for
instructing a jury in an injury-to-property case that it could find damages in the amount of either
diminution in value or cost of repair when presented with evidence of both. Id. at 104. That
instruction clearly violates Ellison’s requirement that the jury choose the lesser of the two amounts.
See id. at 103–04. In the instant case, on the contrary, no evidence of fair market value was
presented, and the district court could hardly have been expected to instruct the jury on evidence that
did not need to be, and in fact was not, presented.

                                                  13
                                            No. 11-6221

       [A] motion for . . . judgment as a matter of law . . . should be granted only if there is
       a complete absence of proof on a material issue in the action, or if no disputed issue
       of fact exists upon which reasonable minds could differ. In deciding such a question,
       every favorable inference which may reasonably be drawn from the evidence should
       be accorded the party against whom the motion is made.

Morales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir. 1998) (internal citations omitted).

“Questions as to the weight and credibility to be given to the evidence are reserved for the jury.”

Hyman & Armstrong, P.S.C. v. Gunderson, 279 S.W.3d 93, 106 (Ky. 2008).

       A.      Sufficiency of the Evidence of Liability

       Kentucky has adopted the definition of strict products liability in the Restatement (Second)

of Torts. See Dealers Transp. Co. v. Battery Distrib. Co., 402 S.W.2d 441, 446–47 (Ky. 1965).

Under the Restatement, a manufacturer will be liable in strict liability when it sells a product “in a

defective condition unreasonably dangerous to the user or consumer or to his property.” Worldwide

Equip., Inc. v. Mullins, 11 S.W.3d 50, 55 (Ky. Ct. App. 1999) (quoting Restatement (Second) of

Torts § 402A (1965)). “The prevailing interpretation of ‘defective’ is that the product does not meet

the reasonable expectations of the ordinary consumer as to its safety.” Ulrich v. Kasco Abrasives

Co., 532 S.W.2d 197, 200 (Ky. 1976) (internal quotation and citation omitted). Courts have

identified three types of product defects: manufacturing defects, design defects, and warning defects.

Edwards v. Hop Sin, Inc., 140 S.W.3d 13, 15 (Ky. Ct. App. 2003).

       In addition to showing that the product was defective, the plaintiff must also show that the

product’s defective condition was the legal cause of its injury. To show legal causation under

Kentucky law, a plaintiff must show that the defendant’s conduct was “a substantial factor in

bringing about the harm.” CertainTeed Corp. v. Dexter, 330 S.W.3d 64, 77 (Ky. 2010) (quoting


                                                  14
                                            No. 11-6221

Restatement (Second) of Torts § 431 (1965)). If circumstantial evidence is used to show causation,

it must “tilt the balance from possibility to probability” that the defendant’s conduct was indeed a

substantial factor. King, 209 F.3d at 893 (internal quotation marks and citation omitted).

       Defendant makes three arguments in support of its claim that the evidence before the jury was

insufficient as a matter of law.5 First, Defendant argues that Plaintiffs’ expert, William Mers Kelly,

did not establish that the condition of the fan/light assembly constituted a manufacturing defect.

“[A] manufacturing defect is defined as a deviation from the product’s design that creates an

unreasonable risk of harm.” Wright v. Gen. Elec. Co., 242 S.W.3d 674, 682 (Ky. Ct. App. 2007).

Defendant argues that because Mers Kelly did not testify specifically as to Defendant’s

manufacturing processes, Plaintiffs could not show that the fan/light assembly manufactured by

Defendant deviated from the product’s intended design.

       Mers Kelly testified in detail about the sharp edge he observed on the metal bracket removed

from the fan/light assembly. He testified that such a sharp edge was, in his opinion, caused by

manufacturing tools that had worn to an unacceptable degree. Defendant could have presented

rebuttal evidence about its own manufacturing processes. It could have introduced photographs of


       5
          Plaintiffs argue that Defendant did not preserve this issue for appeal because it did not
formally present it to the district court during the colloquy on its Rule 50(a) motion. Rule 50(a)
requires the movant to “specify the judgment sought and the law and facts that entitle the movant
to the judgment.” Fed. R. Civ. P. 50(a)(2). A motion under this Rule need not be stated with
“technical precision.” Ford v. Cnty. of Grand Traverse, 535 F.3d 483, 492 (6th Cir. 2008) (quoting
Kusens v. Pascal Co., 448 F.3d 349, 361 (6th Cir. 2006)). While Defendant’s motion was perhaps
not a model of precision, it clearly requested relief on the basis of insufficient evidence. Counsel
asked the district court to enter judgment “based on the fact that the evidence does not support
enough to go to a jury.” The court and opposing counsel were made aware of the law and facts
Defendant believed entitled it to judgment as a matter of law. Therefore, the claim was adequately
presented and preserved.

                                                 15
                                           No. 11-6221

its equipment and expert testimony to show that it was not worn as Mers Kelly had opined. It could

have presented documents to show the accepted tolerance for sharpness in its metal brackets and

compared that information to the photographs of the bracket in question. Defendant did none of

these, and the evidence presented was sufficient to allow the jury to conclude that a defect in the

manufacturing process resulted in an edge that was unacceptably sharp.

       Second, Defendant argues that Mers Kelly’s testimony was subjective and not based on

proven facts. Courts are understandably wary of allowing unanchored, hypothetical expert testimony

to constitute the exclusive foundation of a plaintiff’s case. Doing so would be too unreliable. See

Ky. Trust Co. v. Gore, 192 S.W.2d 749, 752 (Ky. 1946) (finding that expert testimony must be

supported by “proven facts”). However, when an expert “buttress[es] [his] opinion by reference to

the proved circumstances in a case,” Fields v. W. Ky. Gas Co., 478 S.W.2d 20, 22 (Ky. 1972), or

bases his opinion on “personal examinations and tests,” Columbia Gas of Ky., Inc. v. Tindall, 440

S.W.2d 785, 789 (Ky. 1969), the jury is entitled to credit that opinion. Mers Kelly testified that he

had personally examined the fan/light assembly on several occasions, that he had touched the edge

of the metal bracket with his thumb, and that it felt sharp. His conclusion was not merely a

subjective impression, nor was it speculation. His opinion was based on his direct observations and

experience, and it was not unreasonable for the jury to rely on that opinion. See Fields, 478 S.W.2d

at 22 (finding that the jury must determine the weight to give to expert testimony).

       Third, Defendant argues that Plaintiffs’ case was circumstantial and that they did not

adequately eliminate other possible causes of the fire. “Circumstantial evidence has no magic

quality. It is measured by the same standards of probity and credibility as direct evidence.” Perkins


                                                 16
                                             No. 11-6221

v. Trailco Mfg. & Sales Co., 613 S.W.2d 855, 857 (Ky. 1981) (internal quotation marks omitted).

“[L]egal causation may be established by a quantum of circumstantial evidence from which a jury

may reasonably infer that the product was a legal cause of the harm.” Holbrook v. Rose, Ky., 458

S.W.2d 155, 157 (Ky. 1970). Defendant suggests that Plaintiffs’ entire case rested on circumstantial

evidence, but in fact their case was based on a combination of direct and circumstantial evidence.

Through Mers Kelly’s testimony, Plaintiffs put forward direct evidence that the bracket in the burned

fan/light assembly was sharp to the touch and that the wires in the unburned fan/light from the

neighboring bathroom stall exhibited notching. Those two pieces of direct evidence led Mers

Kelly—and, apparently, the jury—to infer that similar notching had taken place in the offending

fan/light assembly, leading to the fire. The evidence, both direct and circumstantial, presented by

Plaintiffs created a sufficient factual showing that properly precluded the district court from granting

Defendant’s Rule 50(a) motion on the issue of liability. See Turpin v. Stanley Schulze & Co., No.

2008-CA-000298, 2009 WL 875218, at *6 (Ky. Ct. App. Apr. 3, 2009) (upholding a denial of a

motion for summary judgment, even in the absence of direct evidence of a manufacturing defect or

causation, because sufficient evidence was presented to tilt the balance “from possibility to

probability”).

        B.       Sufficiency of the Evidence of Damages

        Damages must be proved “with as much certainty as the nature of the tort and the

circumstances permit.” Restatement (Second) of Torts § 912 (1979). Plaintiffs should not be held

to “a standard of mathematical precision.” Ellison, 32 S.W.3d at 79. Plaintiffs, through two experts,

presented evidence of the estimated cost to repair the property. One of Plaintiffs’ experts, William


                                                  17
                                            No. 11-6221

C. Ward, Jr., testified about the cost of repairing the property and the appropriate amount to deduct

for depreciation in order to arrive at the sum necessary to restore the building to substantially the

same condition as before the fire.

       “[W]here it is reasonably certain that damage has resulted, mere uncertainty as to the amount

does not preclude one’s right of recovery or prevent a jury decision awarding damages.” Landwehr

v. Mitchell, No. 2009-CA-000517-MR, 2010 WL 985226, at *5 (Ky. Ct. App. Mar. 19, 2010) (citing

Roadway Express, Inc. v. Don Stohlman & Assocs., Inc., 436 S.W.2d 63, 65 (Ky. 1968)). Based on

the evidence presented, the jury determined that the proper measure of damages to the property was

the full amount included in Ward’s estimate. Defendant cross-examined Ward as to the problems

with his estimate, and it was for the jury alone to evaluate Ward’s credibility. See Hyman &

Armstrong, P.S.C., 279 S.W.3d at 106 (“Questions as to the weight and credibility to be given to the

evidence are reserved for the jury.”). Defendant could easily have introduced evidence of its own

relating to the issue of depreciation, but it chose not to do so. Drawing every favorable inference in

Plaintiffs’ favor, the available evidence was sufficient to allow the jury to determine the reasonable

cost of restoring the building. Therefore, the district court did not err when it denied Defendant’s

Rule 50(a) motion on the issue of damages.

                                          CONCLUSION

       For the reasons stated above, we AFFIRM the district court’s judgment and orders.




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