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Selective Way Insurance Co. v. Nutone

August 25, 2010

SELECTIVE WAY INSURANCE COMPANY AND FEDERATED MUTUAL INSURANCE COMPANY, PLAINTIFFS,
v.
NUTONE, INC., DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe District Court Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiffs Selective Way Insurance Company, as subrogee of Countryside Marts, Inc., and Federated Mutual Insurance Company, as subrogee of Red-Kap Sales, Inc., brought this action against defendant Nutone, Inc., asserting claims for strict products liability, negligence, nuisance, and breach of warranty. (See Compl., Dkt. No. 1.) Pending are Nutone's motions to preclude Selective and Federated's experts, for sanctions based on spoliation, and for summary judgment. (Dkt. No. 39.)For the reasons that follow, Nutone's motion to preclude is denied, Nutone's motion for sanctions is denied, and Nutone's motion for summary judgment is granted in part and denied in part.

II. Background

On January 6, 2006, a fire occurred in the Countryside Mart and Mobil gas station located in East Berne, New York. (See Def. SMF ¶ 1, Dkt. No. 39:27.) At the time of the fire, Jennifer Wright was working at the Countryside Mart. (See id. at ¶ 6.) At approximately 4:00 pm, after going into the bathroom twice before and finding nothing out of the ordinary, Ms. Wright entered the bathroom to discover flames emanating from the ceiling fan, with melted plastic dripping down. (See id. at ¶¶ 7-10.) Wright then yelled to her co-worker, Sarah Densmore, to call 911, which she did. (See id. at ¶¶ 11-12.) Wright thereafter looked back into the bathroom to find that the fire had grown, consisting of orange and red flames and with more pieces of melted material coming down. (See id.) Wright and Densmore then left the building, after which the lights and power went off and smoke began to emerge from the building. (See id. at ¶¶ 11-12, 14.)

Subsequently, Countryside Marts made a claim under its insurance policy with Selective Way Insurance Company for the damages sustained as a result of the fire. (See Compl. ¶ 19, Dkt. No. 1.) Pursuant to the policy, Selective made over $150,000 in payments to Countryside Marts and thereby became subrogated to the rights of recovery possessed by Countryside Marts. (See id.) Likewise, Red-Kap Sales, Inc., as the owner of the property, made a claim under its insurance policy with Federated Mutual Insurance Company for the damages it sustained in the fire. (See id. at ¶ 20.) Federated thereafter made payments exceeding $150,000 to Red-Kap pursuant to the insurance policy, whereby Federated became the subrogee of Red-Kap's rights of recovery. (See id. at ¶ 20.)

On April 27, 2007, Selective and Federated filed suit against Nutone, Inc., alleging that the January 6, 2006 fire was caused by a defective bathroom fan/light that was designed, manufactured, distributed, and placed into the stream of commerce by Nutone. (See Compl. ¶¶ 13-17, Dkt. No. 1.) Based on these allegations, Selective and Federated asserted claims against Nutone for strict liability, negligence, nuisance, and breach of warranty. (See id. at ¶¶ 21-43.)

Following discovery, Nutone moved for summary judgment, contending that there is no evidence of a design defect, a manufacturing defect, or defective warnings, and that the breach of warranty claim is time barred. (See Dkt. No. 39; see also Def. Mem. of Law at 13-16, Dkt. No. 39:28.) In addition, Nutone sought to preclude the testimony of experts Patrick Dugan and Nathaniel Johnson. (See Dkt. No. 39.)

III. Standard of Review*fn1

The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).

IV. Discussion

A. Preclusion of Experts

Nutone seeks to preclude the expert testimony of Patrick Dugan, arguing that Mr. Dugan has no experience regarding product design and that he failed to have his theory regarding the fire's origin tested. (See Def. Mem. of Law at 10-13, Dkt. No. 39:28.) Nutone also seeks to preclude proposed expert Nathaniel Johnson from testifying on the grounds that he lacks the appropriate technical experience, relies on untested and uncorroborated theories, and, as to the design defect claim, has failed to test alternative designs or identify other manufacturers of similar products with a safer alternative design. (See id. at 6-10.)

As to Mr. Dugan, his testimony is admissible for the purpose for which it is being offered, namely, to render an expert opinion in the area of fire origin and cause. Contrary to Nutone's contentions, there is nothing to suggest that Mr. Dugan's testimony is being offered to address issues relating to product design. Instead, as outlined at length by Selective and Federated, (see Pls. Resp. Mem. of Law at 14-17, Dkt. No. 47:18), and as evidenced by Mr. Dugan's expert report, deposition, and curriculum vitae, (see Alweis Aff., Def. Exs. E & L, Dkt. Nos. 39:9 & 39:20; Reilly Aff., Pls. Ex. H, Dkt. No. 47:11), Mr. Dugan is qualified to testify as an expert in the field of fire origin and cause investigation. See FED. R. EVID. 702; see also Nimely v. City of New York, 414 F.3d 381, 395-96 (2d Cir. 2005); Lappe ...


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