NOT RECOMMENDED FOR FULL-TEXT PUBLICATION File Name: 17a0293n.06 Case No. 16-5284 UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT STEPHEN and ALEXANDRIA ) SCANLAN, Individually and ) as Administrators of the ) Estate of Sawyer Scanlan, ) ) Plaintiffs-Appellants ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE WESTERN DISTRICT OF SUNBEAM PRODUCTS, INC. d/b/a ) KENTUCKY Jarden Consumer Products, ) ) OPINION Defendant-Appellee. )

BEFORE: SUTTON and STRANCH, Circ uit Judges; STEEH, District Judge. * STEEH, District Judge. This case asks the question whether a space heater was unreasonably dangerous as designed, such that the manufacturer should be held liable for consequences resulting from a foreseeable use. Stephen and Alexandr ia Scanlan, individually and as administrators of the estate of Sawy er Scanlan, brought this product liability action against Sunbeam Products, Inc., the manufactur er of the Model SFH111 space heater. The Scanlans alleged that the space heater was defective and unreasonabl y dangerous, causing the death of their son when it heated his room to an excessive temperature. The Scanlans also alleged Sunbeam violated the Kentucky Cons umer Protection Act, Ky. Rev. Stat. § 367.170, by engaging in unfair, false, misleading, or deceptive acts or practices in th e conduct of its trade or

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

2 commerce. The district court granted summar y judgment to the defendant on both claims. Because plaintiffs cannot show that defendant consciously disregarded a known risk of the alleged defects, we AFFIRM the district court’s grant of summary judgment on the claimed violations of the Kentucky Consumer Protection Ac t. When viewed in the light most favorable to plaintiffs, a material issue of fact precludes summ ary judgment on the claim that the heater was unreasonably dangerous because of a defective design; thus we REVERSE and REMAND for further proceedings.
I. BACKGROUND In December of 2010, Stephen Scanlan purchas ed a Sunbeam fan-forced heater, Model SFH111 (“SFH111”), for less than $20. Mr. Scanlan could not remember if he fully read the instructions because he “knew how to operate an electric space heater,” but he may have “glanced over” them and read the box. R. 83- 3 at 143. On the night of December 15, 2016, Mr. Scanlan put his two-and-a- half year old son Sawyer to bed in his crib at approximately 9:00 p.m. The bedroom was ten feet by eleven feet and ha d one window which was covered in plastic to provide insulation. Mr. Scanlan had used the h eater on previous nights, but this night was colder, so he turned the thermostat di al “up a tiny bit” to the mid-range. Id . at 24-25, 27. After setting the heater, Mr. Scanlan clos ed the door to Sawyer’s bedroom. Id . at 36. Mrs. Scanlan got up several time s during the night to feed the couple’s infant. R. 85-4 at 58. She listened for Sawyer, who was in the next room, but did not hear anything. Id . at 65. Nobody opened the door to Sawyer’s bedroom until the next morning around 10:00 a.m., when Mrs. Scanlan entered Sawyer’s room and found him unresponsive. Id . at 66-67, 70-71. EMS official Robert Thompson pronounced Sa wyer dead on the scene. Paramedic Angele Rarden noted in her report that the “room was very warm.” R. 93-1 at 3. An autopsyNo. 16-5284, Scanlan, et al. v. Sunbeam

3 was performed and Sawyer’s condition was f ound to be consistent with dehydration. The medical examiner concluded, “The death of th is 2 1⁄2 year-old male child, Sawyer Scanlan, is attributed to heat exposure due to confinement in a small room w ith an electric space heater.” R. 52-7 at 8. On the top of the SFH111 are two dials. Th e right dial is the Mode Control, which enables a user to switch between off, “low h eat” at 1000 watts, “high heat” at 1500 watts, and the fan-only setting without heat output. R. 81-8 at 3. The left dial is the Thermostat Control, also referred to as the auto-shutoff mechanism, whic h consists of a bimetal thermostat called the Tower A349. This dial can turn 270 rotational degrees and is marked with 10 progressively larger dots and a picture of a thermometer. Id

. The instruction manual for the SFH111 instructs th e user to start the heater by turning the Thermostat Control fully clockwis e to the highest position, or the largest dot. When the desired room temperature level is reached, the user is instructed to turn the Thermostat Control counterclockwise toward the lowest posit ion, or the smallest dot, stopping when the fan stops operating. At this point, the heater’s thermostat is set to automatically maintain the chosen temperature level by cycling off and on. Id

. The instruction manual provides the following cautions: When using electrical appliances, basi c safety precautions should always be followed to reduce the risk of fire, electric shock, and injury to persons, including the following:
1. Read all instructions be fore using this heater.

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

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

4 Mr. Scanlan did not rotate the Thermostat Control to the highest setting and wait for Sawyer’s room to reach the desired comfort le vel, then lower the Thermostat Control until operation ceased, as directed in the instructions . Rather, Mr. Scanlan started the SFH111 with the Thermostat Control at the mid-range and left the room with the heater operating and the room still warming. R. 83-3 at 27-29. The instruction manual does not warn against risks resulting from exposure to ambient heated air from the SFH111. The space heater it self does not display any instructions or warnings. The SFH111’s box says it is “Best Suited for Active Ho mes (cool to the touch).” R. 91-14 at 1. The box has two pictures of young children. Id . at 2. The box advises that the space heater has an “Auto Shut Off” and that th e “unit automatically turns heater off if it over heats.” Id . at 1. Between 2004 and 2010, defendant and its successor The Holmes Group manufactured and sold 4,657,360 SFH111 and HFH111 1 heaters. R. 81-19 at 1. Defendant has no record of any other complaints “about a pers onal injury or death resulting from exposure to heated ambient air from this pr oduct model.” R. 81-7 at 11. Plaintiffs filed their complaint in Je fferson County Kentucky Circuit Court, and defendant removed the case to the United States District Court for the Western District of Kentucky, invoking the court’s diversity ju risdiction. 28 U.S.C. §§ 1332, 1441 and 1446. Plaintiffs alleged that the SFH111 was defective and unreasonably dangerous as its auto shut off malfunctioned, allowing the heater to operate continuously and heat Sawyer’s room to “increasingly fatal temperatures,” causing Sawyer to die from heat exposure. R. 45 at 3. Among plaintiffs’ theories of liability was that the heater was defective because defendant failed to adequately warn consumers of the danger presente d in the ordinary and foreseeable use of the

1 The SFH111 and HFH111 have different mode l numbers but they are technologically the same product.No. 16-5284, Scanlan, et al. v. Sunbeam

5 SFH111. Id . at 5. Plaintiffs further alleged that defendant violated the Kentucky Consumer Protection Act “by engaging in un fair, false, misleading, or deceptive acts or practices in the conduct of trade or commerce.” Id . at 9. In granting defendant’s motion for summary judgment, the dist rict court concluded that Sunbeam was entitled to a presumption under Kentucky law, Ky. Rev. Stat. § 411.310(2), which presumes a product not to be defective where it conforms to the generally recognized and prevailing industry standards at the time of manufacture. The court then held that the plaintiffs had not shown a genuine issue of material fact concerning whether the SFH111 was unreasonably dangerous, such that an ordinarily prudent manufactur er would not ha ve put it on the market. As for the failure to warn th eory, the court found that the pl aintiffs failed to establish a genuine issue of material fact th at Mr. Scanlan would have behave d differently if the instruction manual, the box, or the space heater itself had a warning regarding the ability of the SFH111 to heat a room to very high temperatures. The di strict court reasoned that Mr. Scanlan admitted he did not pay close attention to any of those ite ms since “he already knew how to operate an electric space heater.” R. 113 at 18. The experts all agreed that if Mr. Scanlan had followed the directions provided with the heater “and turned down the Thermostat Control after the room reached a comfortable temperature, Sa wyer likely would have survived.” Id . at 19-20. For this reason, the court concluded that a failure to warn did not lead to Sawyer’s death. Finally, the court granted defendant’s motion for summary judgment on plaintiffs’ Kentucky Consumer Protection Act claim, holding that “Plaintiffs have not alleged facts upon which a reasonable jury could find Sunbeam in tentionally, knowingly, or in bad faith took malign actions affecting the Plaintiffs.” Id . at 21.No. 16-5284, Scanlan, et al. v. Sunbeam

6 Plaintiffs timely filed this appeal. II. ANALYSIS This Court conducts a de novo review of the district court’ s grant of summary judgment. Thom v. Am. Standard, Inc. , 666 F.3d 968, 972 (6th Cir. 2012). Summary judgment is warranted “if the movant shows that there is no genuine dispute as to any ma terial fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of demonstrating the absence of any genuine issue of material fact. Celotex Corp. v.
Catrett , 477 U.S. 317, 323 (1986). “Once the moving part y satisfies its initial burden, the burden shifts to the nonmoving party to set forth specific facts showing a triable issu e of material fact.” Mosholder v. Barnhardt , 679 F.3d 443, 448-49 (6th Cir. 2012) (citation omitted). “The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient [to defeat a properly supported motion for summar y judgment]; there must be evidence on which the jury could reasonably find for the plaintiff.” Id . at 449 (quoting Anderson v. Liberty Lobby,
Inc. , 477 U.S. 242, 252 (1986)). “In reviewing the district court’s decision to grant summary judgment, we must view all evidence in the light most favorable to the nonmoving party.” Kleiber v. Honda of Am. Mfg., Inc. , 485 F.3d 862, 868 (6th Cir. 2007). A. Kentucky’s Statutory Presumption Under Kentucky law, manufacturers are entitled to a presumption that their product is not defective if “the design, methods of manufac ture, and testing conformed to the generally recognized and prevailing standards or the state of the art in exis tence at the time the design was prepared, and the product was manufactured.” Ky. Rev. Stat. § 411.310(2). If the presumption applies, liability for harm caused by the product may not be imposed unless the presumption is overcome by a preponderan ce of evidence. Id .; Ingersoll-Rand Co. v. Rice , 775 S.W.2d 924,No. 16-5284, Scanlan, et al. v. Sunbeam

7 928 (Ky. App. 1989). With or without the presumption, the burden of showing that the product is defective is borne by plaintiffs. Underwriters Laboratories (“UL”) tested the SFH111 and found it to be in compliance with multiple manufacturing, design and testing st andards set out in UL 1278, which is a safety standard for moveable and wall- or ceiling-hu ng electric heaters. UL 1278 requires quality testing on things such as power input, wattage, RPM, noise level, motor temperature, start-up voltage, voltage withstand, and leakage current. R. 91-16 at 114-15. Testing examines the temperature of the cord, knobs and the exterior surf ace of the heater and gri ll when the heater is used correctly. Testing is also done on some abnormal use, such as cord strength when the heater is carried by the cord. Id . Further testing includes “c ontinuous on” which leaves the heater running for 1000 hours to see if it still operates correctly, and cycle testing which turns it on and off while looking for expansion and contra ction of connections as the unit heats and cools. Id . at 115, 118. The terry cloth drape test makes sure the heater turns off if a consumer tries to dry fabric on the unit. Id . at 116. The heater is placed against a wall to see if it shuts off. Id . at 87. The packaging is tested for its ability to protect the heater if the box is dropped. Id . at 116. Testing is done on the thermostats and h eater cutoff for quality assurance and proper performance. Id . The adjustable thermostat accuracy test checks for accuracy of the room temperature as the heater cycles on and off. Id . at 119. The plaintiffs’ expert, William Murphy, agreed that the heater met or exceeded th e requirements of UL 1278. R. 81-10 at 142. All of the UL 1278 tests are concerned with ge neral performance and safety of the heater in terms of fire, burns, shock and other injuries to the consumer as the heater is typically used or misused by the consumer. While UL 1278 tests th e performance of the th ermostat, it does not require testing to determine whether the heater will overheat a space to a dangerously hotNo. 16-5284, Scanlan, et al. v. Sunbeam

8 temperature. R. 91-13 at 4340 -41. Mr. Vernaglia, project e ngineer of the SFH111, explained that there is no compliance body or standard that tests the ambient temperature in a room when a heater is being used because it is up to the user to determine the desired temperature. R. 91-16 at 125. Even though UL 1278 does not test for a h eater’s ability to ove rheat a room, it is generally considered to be the recognized safety standard for portable space heaters. While there may be more than one safety sta ndard, plaintiffs have not identified another standard that would have required testing of a heate r’s effect on the ambient temperature of a room. Therefore, the statutory presumption that the SFH 111 was not defective applies. Fu rthermore, the district court correctly applied the statutory presumption in this case by givi ng plaintiffs the opportunity to rebut the presumption with a showing by a preponde rance of the evidence that the space heater was defective. Boon Edam, Inc. v. Saunders , 324 S.W.3d 422, 432 (Ky. Ct . App. 2010) (citing Leslie v. Cincinnat i Sub-Zero Prods., Inc. , 961 S.W.2d 799, 803 (Ky. Ct. App. 1998)); Murphy by Murphy v. Montgomery Elevator Co. , 957 S.W.2d 297, 300 (Ky. Ct. App. 1997).
B. Defective Design 1. Unreasonably Dangerous Product Where a manufacturer is accused of designing a defective product, wh ether under a strict liability or neg ligence theory, the consumer must pr ove that the product was unreasonably dangerous. McCoy v. Gen. Motors Corp. , 47 F. Supp. 2d 838, 839 (E.D. Ky. 1998); Worldwide Equip. Inc. v. Mullins , 11 S.W.3d 50, 55 (Ky. Ct. App. 1999). The test in Kentucky presumes that the manufacturer knows the qualities and charact eristics of the product, and asks whether the product creates “such a risk” of an accident of th e general nature of the one in question “that an ordinarily prudent company engaged in the manu facture” of such a product “would not have putNo. 16-5284, Scanlan, et al. v. Sunbeam

9 it on the market.” Montgomery Elevator Co. v. McCullough , 676 S.W.2d 776, 780 (Ky. 1984) (quoting Nichols v. Union Underwear Co. , 602 S.W.2d 429, 433 (Ky. 1980)). Plaintiffs’ product liability cl aim alleges that the SFH111 ha d a defective design because it was capable of heating a room to temperatures “incompatible with human life.” The “comfort zone” for normal human activity is considered to be roughly 60 to 80 degrees Fahrenheit. R. 91- 11 at 99. Expert testimony in this case clearly establishes that the SFH111 can heat a small room to a very high temperature, above 100 degrees Fa hrenheit, if the user turns the Temperature Control to mid-range and does not turn the Temp erature Control down. The question is whether the heater’s ability to he at a small room to temperatures in excess of 100 degrees when used in this manner, given its advertising and warn ings, makes the SFH111 unreasonably dangerous such that a prudent manufacturer woul d not have put it on the market. In order to evaluate whether the SFH111 was defective, one must understand how the Tower A349 thermostat was designed to work. The Tower A349 is a bimetal thermostat, and it is the only component in the SFH111 th at the Scanlans ar gue is defective. 2 A bimetal is a strip or coil of two metals attachedto one another that expand atdifferent rates as temperature increases. The two metals’ different rates of e xpansion lead the bimetal strip or coil to bend, allowing the bimetal to act as a circuit breaker. Wh en the internal temperature of the heater rises to a certain level, the bimetal will bend enough to create a gap in the heater’s circuit, causing it to turn off. When the temperature cools enough for th e bimetal to return to its original position, it reconnects the circuit loop, causing the heater to resume blow ing heated air. The Thermostat Control (the dial with the picture of a thermometer) does not set the external air temperature of the room because the SFH111 does not have a thermometer that measures external air

2 While the Tower A349 is the only component the Scanlans identify as defective, they also point to the design of the SFH111 as a whole, including information contained on its packaging and in its operating manual.No. 16-5284, Scanlan, et al. v. Sunbeam

10 temperature. Instead, the Thermostat Control sets the internal temperature at which the bimetal breaks the circuit and thus engage s the auto-shutoff mechanism. The A349 schematic the Scanlans present as evidence links the angle of the Thermostat Control with the temperature thre shold of the bimetal at which the circuit will be broken. Sunbeam’s liability expert Robert Miller (“Miller” ) explained that the Thermostat Control dial operates linearly. In the case of the SFH111, this means that each of the ten dots on the Thermostat Control dial represents a 15 degree increase in temperature on the bimetal. For example, Dot 5 corresponds to a bimetal thresh old of approximately 128 degrees; when the dial is turned to Dot 7, the A349 sets the threshold at 158 degrees. Thes e are internal temperatures of the bimetal, not the external air temperature of the room. 3 The Scanlans argue that the A349 schematic itself provided Sunbeam with all the datait needed to calculat e the room temperature at which the heater would stop heating at each dot setting on the Thermostat Control. Miller explained that there is a reason w hy the type of thermostat used by the SFH111 and other heaters permit very high temperature ranges on the bimetal. The temperature on the bimetal will be higher than the general temperat ure in the room because the resistive heat from current flowing through the thermostat componen t “can cause a 45°F temp erature rise on the body of the thermostat bimetal, w ith no other heat sources contributing to the temperature rise.” R. 79-7 at 12-13, 17. Resistive heat is impacted by the voltage of the outlet, duration of use, and the wattage chosen by the user. These additional sources of heat are fact ors that help explain why bimetal thermostats are calibrated to temperat ures far above what users want as their room temperatures. In addition, small space heaters of this type are used in a wide variety of settings.

3 The A349 schematic labels the temperatures as room temperatur es, but as the court understands the operation of the thermostat in the SFH111 as onl y measuring temperature using the bimetal, it only makes sense that the diagra m must be referring to the temperature on the bimetal.No. 16-5284, Scanlan, et al. v. Sunbeam

11 Id . at 6, 13. They are used in small rooms where it is possible to heat the whole room to roughly the same temperature. They are also used in large spaces and in semi-e nclosed spaces where the ambient temperature immediately around the heater may be far higher than the overall room temperature. The utility of a heater witha high range and a flexible thermostat was demonstrated by Miller when he tested the SFH111 under a desk. The temperature behind the heater rose to over 125 degrees, cau sing the heater to cycle off atDot 8 3⁄4, while the temperature three feet away remained at 64 degrees. Id . at 19. Prior to Sawyer’s death, defendant did not te st how hot the SFH111 could make a room. R. 91-13 at 4. After the Scanlans brought this la wsuit, Miller tested a SFH111 in Sawyer’s room. When the heater was turned on with th e Temperature Control se t on Dot 7, the space heater ran continuously without cy cling off. R. 91-11 at 71-72. After six hours, the temperature in the room was almost 110 degrees mid-way up a wall, 115 degrees on the slanted section of ceiling above the crib, and 120 degrees six inches off the ceiling in the center of the room. Id . at 72. Miller testified that he had never before seen a heater heat a room to 120 degrees. Id . at 236. As discussed below, Miller c onducted testing on other heaters, both in connection with being hired as an expert for this lawsuit, as well as in his previous employment. On appeal the Scanlans argue that, assuming the other heaters M iller tested also operated linearly, they would have only heated Sawyer’s room to 77 degrees if their temperature control was set at seventy percent, as opposed to 120 degrees when the Temperature Control on the SFH111 was set at seventy percent. The overarching question is whether an ordi narily prudent compa ny would have put the SFH111 to market, while advertising it as having overheat protection and au to shut-off features, with no warnings or instructions on the heater itself and without any warnings that it can heat aNo. 16-5284, Scanlan, et al. v. Sunbeam

12 room to deadly conditions if left on a middl e setting. Under Kentucky law, factors bearing on the question whether the product was manufactu red “in a defective condition unreasonably dangerous” include whether there is a feasible alternative design, the ob viousness of the danger, the adequacy of warnings and instructions, misu se, subsequent maintenance and repair, ordinary customer expectations, and the product’ s inherently unsafe characteristics. McCullough , 676 S.W.2d at 780-81; Nichols , 602 S.W.2d at 433. The facts of an individual case will determine which factors are relevant to the decision whether a product is unreasonably dangerous. Id

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

a. Industry Custom or Practice Sunbeam’s expert Miller performed a Comfor t Level Test in which he examined the Holmes HFH111 4 space heater with the A349 thermostat , as well as the same heater with a different comfort thermostat, and five similarly constructed competito r 1500 watt fan heaters equipped with adjustable comfort thermostats. The Comfort Level Test ran each heater for one hour in a small enclosed room on the highest heat setting with the thermostat set at the highest position. After one hour the thermostats were turned down unt il the heaters cycled off. The heaters continued to run, cycling on and off, fo r two more hours. Then th e heaters were turned back to the highest setting and allowed to run for two more hours. Mill er concluded that the “results demonstrate that the two Sunbeam heaters perform similarly to the competitor heaters, and in fact produced lower room temperatures than four of those competitor heaters.” R. 79-7 at
8. Plaintiffs find support for thei r theory in the test result s discussed by Miller while working for his previous employer, Lakewood Engineering & Manufacturing. At Lakewood,

4 The Sunbeam SFH111 was renamed the Ho lmes HFH111 but is technologically unchanged.No. 16-5284, Scanlan, et al. v. Sunbeam

13 Miller was involved with testing Lakewood heater s against competitor heat ers. Miller testified that testing took place only a few times during the 23 years he was employed at Lakewood, the first time around 2000 and the last time in 2005. Miller’s testimony at his deposition was based on his recollection almost 10 years later. Each heater was testedby putting it in a small unused sauna that was on the Lakewood pr operty and letting it run for at least five hours with the thermostat fully open. The purpose of the testwas to compare the efficiency of the 1500 watt heaters made by Lakewood and those of its compe titors. To the best of Miller’s memory, the maximum room temperature that was achieved by any of the heaters tested by Lakewood was in the “general area” of 110 degrees Fahrenheit. R. 91-11 at 243. The Lakewood testing was conducted in a sma ll sauna, which Miller testified was better insulated than Sawyer’s bedroom. Id . at 244. Therefore, one w ould expect that if the SFH111 had been tested in the Lakewood sauna on Dot 7, it would have heated the ambient air to more than the 110-120 degree temperatures measured by Miller in Sawyer’s room before turning off. To be sure, there are weaknesses in the Scan lans’ reliance on the Lakewood testing. For starters, the 110 degree figure came from Miller’s ge neral recollection almost a decade after the testing was last done, and the testimony is not supported anywhere el se in the record. Nevertheless, Miller is defenda nt’s expert, and because he conducted both tests and admitted facts tending to support plaintiffs ’ theories of liability, this evidence cannot be discounted as biased. Miller further testified that he had never seen another heater heat a room to 120 degrees, even in the ten years since he conducted the Lakewood tests. The Lakewood tests were set up to test maxi mum heat output of heaters without being limited by an internal thermometer threshold like th e A349 bimetal. The heaters were allowed to run for 5-8 hours. In contrast , Miller’s contro lled testing conducted for this lawsuit set theNo. 16-5284, Scanlan, et al. v. Sunbeam

14 thermostat to Dot 7, but only let the heaters run for two hours. While neither test compares similar heaters to the SFH111 under the same circ umstances present in Sawyer’s room, taken together the tests and Miller’s testimony provide sufficient evidence for a jury to find that the A349 thermometer is defective for failing to shut off, when set at Dot 7, before the ambient temperature in the room reached 110-120 degrees. A reasonable juror could conclude from this evidence that a heater that permits a room to reach 110-120 degrees when the dial is turned to Dot 7 is defective, while a heater that permits similar temperatures while on its maximum setting is not. This is because a consumer could foreseeably expect that the heater will heat a room to a lower temperature, and is therefore safer to use, at Dot 7 than at its maximum setting. Of course, consumer expectations are a relevant criterion under Kentucky law.
b. Alternate Design The feasibility of making a safer product is a factor that may inform whether an ordinarily prudent manufacturer would have placed the SFH111 on the market knowing that it can heat a room to a very high temperature. McCullough , 676 S.W.2d at 780- 81. Plaintiffs in this case presented evidence of several alternative designs which they allege were safer, practical and feasible, and which would have prevented the death of Sawyer. First, defendant could have used a digital thermometer to limit a room’s ambient temperature to between 60 and 80 or 85 degrees. Plaintiff’s expert witness, safety engineer Craig Clauser, opined that the heater could have been designed such that the highest setting would cause shut off when incoming room temp erature air was at 85 degrees and the lowest setting would cause shut off when incoming air te mperature was at 60 degrees. For this to work, the housing around the thermostat would have to be opened to expose the bimetallic strip directlyNo. 16-5284, Scanlan, et al. v. Sunbeam

15 to the incoming air from the room as opposed to air from inside the heat er, and the thermostat would have to be shielded from radiant heat from the coils. R. 52-4 at 6. Installing a digital thermostat would have cost between $1.00 and $1.50 pe r unit. R. 91-24 at 59. Plaintiffs suggest that defendant’s own SFH442 was a similarly sized and priced space heater that used such a digital thermometer. According to Miller, if a user turned the thermostat dial to the half-way point, the SFH442 would heat a small room to an ambient temperature of 70 degrees Fahrenheit. R. 91-11 at 99. In comparison, the SFH111 heats th e bimetal inside the heater to 128 degrees Fahrenheit when its analog ther mostat is rotated halfway. Id . at 99-100. We know from testing done in this case that the corresponding ambient air temperature of a small room heated by the SFH111 set at Dot 7 can range fr om 110-120 degrees Fahrenheit. Other potential changes descri bed by plaintiffs’ experts in clude designing the bimetal thermostat to turn off at an internal temperature less than the 212 degrees incorporated in its current design, R. 91-25 at 24; R. 91-20 at 57, or by using lower wattage, which would have the effect of lowering the temperature range. R. 91-17 at 226-27. Alternatively, the packaging could have been designed to avoid misleading claims. Plaintiffs’ e xpert William Murphy opined that the presence of a thermostat and the clai m of “overheat protecti on” on the package “would indicate to some users that they need not c onstantly monitor the room conditions since the thermostat will maintain temperature within a sa fe range, just as their central heating/cooling thermostat does.” R. 52-2 at 7. The statement on the box, “ Auto Shut-Off Unit automatically turns heater off if it over heats, ” is described by Mr. Murphy as at best ambiguous and unclear. “The manufacturer is referring to the safety limit reset switchwith an operating temperature around 150°F. The consumer may interpret this overheating statement as referring to the thermostat control with a limit of 80-85°F lik e what they see on their central heat/coolNo. 16-5284, Scanlan, et al. v. Sunbeam

16 thermostat.” Id . Defendant did not present any evidence disputing plaintiffs’ expert testimony on alternative designs. In granting summary judgment to the defe ndant manufacturer, the district court in Fritz v. Campbell Hausfeld/Scott Fetter Co. noted that “proof of nothing more than that a particular injury would not have occurred had the pr oduct which caused the injury been designed differently is not sufficient to establish a breach of the manufacturer’s or seller’s duty as to the design of the product.” 2007 WL 1558509, *3 (E.D. Ky. 2007) (quoting Jones v. Hutchinson Mfg., Inc. , 502 S.W.2d 66, 70 (Ky. 1973)). The expert witness in Fritz presented three different alternative designs to a pressure washer that he claimed would have pr evented the plaintiff’s injury. However, the expert said “nothing about industry standards or pract ices, the state of the art in the industry, similar accidents involving this or other products, or other factors relevant to the issue of whether the defendants’ product is actually defective.” Id . “[P]roof that technology existed, which if implemented would feasibly have avoided a dangerous condition, does not alone establish a defect.” Stewart v. Gen. Motors Corp , 222 F. Supp. 2d 845, 848 (W.D. Ky. 2002) (quoting Brock v. Caterpillar, Inc. , 94 F.3d 220, 224 (6th Cir. 1996)); see also Wall v. Ford Motor Co. , 983 F.2d 1071 (6th Cir. 1992) (unpublishe d) (expert testimony that it was possible to design the vehicle in a way that c ould have prevented plaintiff’s injury was not enough to rebut the presumption, an d “something more” was required). The court considers the testimony of plaintiffs ’ experts regarding alternative designs as one factor among others in the analysis of whether the SFH111 was unreasonably dangerous such that defendant should not have put it on the market as designed.No. 16-5284, Scanlan, et al. v. Sunbeam

17 c. Adequacy of Warnings Defendant’s expert Miller compared the SFH11 1 to several similarly constructed space heaters which all contain “nearly identical warni ngs and instructions regarding heater use and adjustable thermostat op eration.” R. 81-20 at 2-3. None of the heaters he looke d at “contained a warning concerning the potential for the product to produce excessive ambient temperatures during use or a warning regardi ng the dangers associated with raised temperature levels.” Id

. However, Miller did not test these other heater s for excessive ambient room temperature when they were set to Dot 7 and permitted to run overnight. A warning might be adequate in some circumst ances, but not in others. In light of the evidence supporting plaintiff’s theory that the A 349 Thermostat permits ambient temperatures to achieve levels of 100-120 degrees when the temperature control di al is set to the mid-range, a different warning may be required. This is all the more true gi ven that the product’s packaging fostered false expectations with regard to the presence of an adjustable thermostat and overheat protection, as discussed in the ne xt section on consumer expectati ons. Stated another way, it is possible that the A349 thermostat is not inherently defective due to its ability to allow the bimetal to reach high temperatures before cycling off if adequate warnings are provided regarding reasonable misuse. Specifically, the instruction manual fails to warn consumers that the A349 permits excessive temperatures at middle settings if the user does not pr operly calibrate the advertised auto-shutoff feature by turning the temperature di al to the left until the unit cycles off after a comfortable temperature has been achieved. A customer would have no way of knowing, even after reading the instructions, that setting the thermo stat control to a middle level, rather than the maximum level as instructed, would have no differing impact on heat output.No. 16-5284, Scanlan, et al. v. Sunbeam

18 d. Consumer Expectations Kentucky precedent states that a product fails to satisfy consumer expectations when it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it. Greene v. B.F. Goodrich Avionics Sys. , 409 F.3d 784, 789 (6th Cir. 2005) (citing Restatement (Second) of Torts § 402A cmt. i. (1 965)). Miller’s testi ng showed the SFH111 was capable of heating Sawyer’s room to 115 or 120 degrees Fahrenheit wit hout shutting off in six hours. R. 91-11 at 71-72. Plaintiffs’ experts opined that consumers would not expect a space heater on a middle setting to heat a room far above the normal zone for human comfort of 65 and 84 degrees. R. 52-1 at 6-7; R. 52-3 at 19. Dr. Lehto, plaintiffs’ human fact ors expert, testified that ordinary consumers would be “shocked” to l earn that a space heater can warm a room to the point that a person would succumb to heat st roke. R. 91-18 at 140-41. William Murphy, plaintiffs’ engineering expert, testified that most consumers would expect a heater would have an upper range of 80-85 degrees, similar to what they are used to seeing on their central heating/cooling thermostat. R. 91-13 at 3. In s hort, consumers would not expect a heater left unattended on a middle setting to cause risk of death due to heat exposure, as opposed to a different type of danger such as shock or fire. The packaging of the SFH111 only bolsters thes e false consumer expectations. The small room designation appearing on the box implies that defendant offered different products depending on room size. In fact, all of defe ndant’s heaters were 150 0 watts on the higher wattage setting, regardless of whether it was a sma ll heater or a large heater. R. 91-20 at 37-38; R. 91-21 at 142. Photographs of families on the box imply the SFH111 is safe for active homes. The advertised safety features including an ad justable thermostat, overheat protection and auto shutoff could likely lead a reasonable consumer to believe that excessive ambient temperature isNo. 16-5284, Scanlan, et al. v. Sunbeam

19 not a risk with this product. Finally, the dots of increasing size on the heater’s dial suggest one could rely on the dial placement to control ambient room temperature according to the preferences of the consumer. R. 91- 11 at 271-72 ; R. 91-18 at 80-81, 103-04, 113-15. Defendant did not produce any evidence to contra dict plaintiffs’ evidence regarding consumer expectations. In this case, a failure to wa rn and consumer expectations go hand in hand. Consumers use products in the ways those products are mark eted and labeled. The adequacy of warnings may depend on whether marketing-driven cons umer expectations lead consumers to unexpectedly dangerous uses without fair warning. For example, plaintiffs’ expert stated that “safety terms, such as ‘overheat protection’ . . . may result in a user being less careful about how they operate the unit if they feel it has such protections built into the product.” R. 52-2 at 8. In other words, a warning may be more inadequate than otherwise if a product’s inherent nature or the seller’s chosen marketing l eads consumers to expect that certain uses are safe.

e. Conclusion on Unreasonably Dangerous Product Defendant would have this court hold that their compliance with industry custom is dispositive in this case. Defendant emphasizes the uncontroverted evidence that Sunbeam has received no similar complaints in the last fifteen years, during which it sold 18 million heaters with similar or identical bimetal thermostats to support its argument that the SFH111 conforms to a common and overwhelmingly safe design. R. 79-7 at 5. However, there is no precedent for finding th at compliance with industry custom can be dispositive. This is supported by the fact that Kentucky courts allow a jury to find a product defective despite compliance with industry standard. See Jones , 502 S.W.2d at 70 (“[I]f an industry adopts careless methods, it cannot be perm itted to set its own uncontrolled standard. . . .No. 16-5284, Scanlan, et al. v. Sunbeam

20 Where common knowledge and ordinary judgment will recognize unreasonable danger[,] what everyone does may be f ound to be negligent.”); Boon Edam, Inc. v. Saunders , 324 S.W.3d 422, 429 n.13 (Ky. Ct. App. 2010) (“A curious argument wh ich basically reasons that because no one was previously injured there must not be any da nger arising from the operation of the door. If accepted, a corollary would be there could never be an injury caused by the operation of the door in the first instance because there had never been a prior injury. This is simply an untenable argument.”). All of the considerat ions discussed in McCullough and analyzed above are factors bearing on the principa l question whether the SFH111 was manufactured A in a defective condition unreasonably dangerous. @ In rare cases the Kentucky Supreme Court has found one of those factors dispositive as a matter of law. For example, the patency of the danger of a grain auger made it unreasonable to hold a manuf acturer liable for an injury caused by the circumstances in which the product was used; the consumer’s subsequent failure to maintain a disintegrating grinding wheel was the sole cause of injury and the original design was not a contributing factor; and the inhere ntly unsafe characteristics of dynamite made it unreasonable to blame the manufacturer for a failure to warn of the dangers due to careless handling. McCullough , 676 S.W.2d 776, 781 (K y. 1984) (citing Jones , 502 S.W.2d 66 (grain auger); Ulrich v. Kasco Abrasives Co. , 532 S.W.2d 197 (1976) (grinding wheel); Hercules Powder Co. v. Hicks , 453 S.W.2d 583 (1970) (dynamite)). Th ere is no compelling argument under the circumstances of this case that any one factor should be dispositive as a matter of law. The space heater at issue does not pose a risk of danger comp arable to the grain auger, was not negligently maintained like the grinding wheel and would arguably benefit from a well-placed warning, unlike the dynamite in Hercules Powder . By statute, complying w ith industry practice entitles aNo. 16-5284, Scanlan, et al. v. Sunbeam

21 manufacturer to a rebuttable presumption that its product is not defective. Making that presumption irrebuttable is solely with in the province of the legislature. A space heater’s foremost and obvious danger is risk of shock or fire, not risk of producing fatal levels of ambient heat. Given the substantial evidence that the SFH111 provides inadequate warnings of a danger that defies consumer expectations for a reasonable use, this court cannot find that compliance withindustry standard is dispositiv e in this case. The Scanlans presented evidence by multiple experts of inadequate warnings, consumer expectations, and alternative designs. Much of plaintiffs’ eviden ce was not controvertedby defendant. Kentucky law suggests that courts cannot find that evid ence of compliance with industry custom alone outweighs evidence of these other factors. At trial, Sunbeam may argue that they and other manufacturers have sold millions of comparable heaters without incident and a jury may agree that compliance with industry custom outweighs th e other factors. Such decisions rightly belong to a jury. Kentucky law allows a fact finder to find a product defective despite industry compliance. A jury should be able to evaluate the weight of the evidence and determine if defendant manufactured a product which was unreas onably dangerous in de sign. Such a finding would not mean the industry standard is per se unreasonable. For example, if a jury found the SFH111 to be defective, Sunbeam might correct this de fect by adding appropriate warnings clarifying that failure to turn the dial down un til the heater cycles off upon reaching the desired temperature will result in continuous and potentia lly fatal heat output. Similarly, consumer expectations could be impacted by making ch anges to the product claims included on the packaging.No. 16-5284, Scanlan, et al. v. Sunbeam

22 The court concludes the distri ct court erred in taking the issue of whether the SFH111 was an unreasonably dangerous product away from the jury. 2. Failure to Warn In Kentucky, “a product is unreasonably danger ous in design if it does not adequately warn the consumer that the product should not be put to a certain use.” Tipton v. Michelin Tire
Co. , 101 F.3d 1145, 1149 (6th Cir. 1996) (citation omitted). Therefore, warnings and instructions are relevant in determin ing whether a product is defective. Id . This duty to warn “extends to the dangers likely to result fr om foreseeable misuse of a product.” Morales v. Am. Honda Motor Co. , 71 F.3d 531, 537 (6 th Cir. 1996). Where the manufact urer is obligated to give an adequate warning of danger, the giving of an in adequate warning is as complete a violation of its duty as would be the fa ilure to give any warning. Post v. Am. Cleaning Equip. Corp. , 437 S.W.2d 516, 521-22 (Ky. 1968). As evidence that defendant had reason to know the SFH111 was likely to be dangerous because it could heat a space to excessive temperatures, plaintiffs point to the schematic for the Tower A349 thermostat. R. 91-12. Based on th e diagram, plaintiffs contend that defendant could have deduced that at its upper leve ls the SFH111 would produce excessive ambient temperatures. Despite possessing this evidence, the instruction manual contained no warnings about the associated danger, nor were there a ny relevant warnings on the heater itself. In addition, the packaging fostered false consum er expectations that the SFH111 had safeguards to prevent the danger of producing excessive ambi ent heat. Plaintiffs presented evidence from four experts who each concluded that a warning s hould have been placed directly on the heater to make consumers aware of the gravity of the risk of turning the Thermostat Control dial to a middle setting and leaving the heat er running overnight. R. 91-18 at 135; R. 52-2 at Page IDNo. 16-5284, Scanlan, et al. v. Sunbeam

23 449-50; R. 52-3 at 17; R. 52-4 at589. An adequate wa rning on the heater itself might have drawn Mr. Scanlan’s attention such that he would not have left the heater turned on in a room occupied only by a sleeping child. The district court erroneously placed the burden on plaintiffs to show that Stephen Scanlan would have behaved differently if th e instruction manual, box or space heater itself contained a warning regarding the heater’s ability to heat a room to very high temperatures. However, a plaintiff is not required to prove th at a different warning would have averted the injury in question when the warning that was actu ally given was inadequate . “[I]n the absence of an adequate warning, the defenda nt cannot shift to the plainti ff the burden of proving that he would not have misused the product regardless.” Morales , 71 F.3d at 537 (citing Post , 437 S.W.2d at 521)). Mr. Scanlan’s failure to fo llow the operating instructions because he did not read them does not shift the burden to plai ntiff to prove he would not have misused the product regardless of what instructio ns or warnings were provided. Causation is an issue of fact, and all of the relevant facts s hould be considered. The fact that the warnings provided were embedded in th e instruction manual and were not present on the heater itself is relevant. It is also relevant that while the instruction manual warned of the danger of shock and fire, nowhere did it warn of the danger associated with excessive ambient air temperature – the actual danger that caused the injury at issue. Plaintiffs should be able to argue to the jury that the warnings provided were in adequate, that the terms “adjustable thermostat” and “overheat protection” on the box were misleadi ng, and that plaintiffs’ expectations in their purchase and use of the heater were reas onably influenced by these factors.No. 16-5284, Scanlan, et al. v. Sunbeam

24 C. Kentucky Consumer Protection Act In order to establish a viola tion of the KCPA, plaintiffs mu st show that the defendant’s actions were either (1) intenti onal or (2) grossly negligent. Sparks v. ReMax Allstar Realty, Inc. , 55 S.W.3d 343, 348 (Ky. Ct. App. 2000). Gross ne gligence requires a “conscious and voluntary act or omission which is likely to result in grave injury when in face of clear and present danger of which alleged tortfeasor is aware.” Id

. Plaintiffs argue on appeal that they establis hed an issue of fact th at defendant knew that the SFH111 could produce excessive ambient temp erature based on the calculations appearing on the Tower A349 Diagram. The diagram show s that when the thermostat was turned 47 rotational degrees, the auto shutoff feature would not engage until the internal temperature of the bimetal reached 70 degrees Fahrenheit. The thermostat limit increased four degrees Fahrenheit for every six degrees of rotation. Th erefore, a jury could find that defendant knew that the SFH111 was capable of producing excessive heat in the range of 128 degrees Fahrenheit on the bimetal at 135 rotational degrees – the se tting used by plaintiffs on the night Sawyer Scanlan died. With this knowledge, plaintiffs ma rketed the heater for small rooms and families with children, advertising safety featur es that would mislead the consumer. In order to show that defendant engaged in a conscious and volunt ary act or omission in the design, manufacture or sale of the SFH111, plaintiffs must offer facts for the jury to find that defendant had knowledge of alleged defects and consciously disregarded such information. See Dalton v. Animas Corp. , 913 F.Supp. 2d 370, 378 (W.D. Ky. 2013). There is no evidence in the record from which a jury could find defendant consciously disregarded known hazards associated with the SFH111’s h eating capabilities. Sunbeam and its predecessor Holmes manufactured and sold 4,657,360 SFH111 and HF H111 heaters from 2004 and 2010 and neverNo. 16-5284, Scanlan, et al. v. Sunbeam

25 received any notice of an alleged injury or death resulting from e xposure to heated ambient air. R. 81-19 at 1. The plaintiffs simply have notalleged any facts upon which a reasonable jury could find that defendant intentionally, knowingly or in bad faith took malign actions affecting the Scanlans. This court affirms the district court’s gr ant of summary judgment on plaintiffs’ Kentucky Consumer Protection Act claim. CONCLUSION
We AFFIRM the district court’s grant of summary judgment on the claimed violations of the Kentucky Consumer Protection Act, REVERSE the district court’ s grant of summary judgment finding no issue of material fact as to whether the space heater was designed in a defective condition unre asonably dangerous and REMAND for further proceedings.No. 16-5284, Scanlan, et al. v. Sunbeam

26 SUTTON, Circuit Judge, concur ring. I concur in the co urt’s thoughtful and admirable efforts to resolve this difficult case. But I must acknowledge the far-reaching nature of the court’s holding that Kentucky tort law permits this claim to go to a jury. The pertinent question is whether an “ordinarily prudent company . . . w ould not have put [this product] on the market.” Montgomery Elevator Co. v. McCullough , 676 S.W.2d 776, 780 (Ky. 1984) . That standard takes account of many factors, but it necessarily emphas izes what ordinary manufacturers have always done. And in this case, the reco rd establishes that the SFH111 was no different from the heaters with bimetal thermostats that numerous manufacturers have used “hundreds of millions” of times over 50 years without a single comparable incident . R. 79-7 at 5–6. Yes, an entire industry can be wrong. And yes, the fruits of its collective mistak e can occur later. But th is of course is not a latent injury case. In the context of such a common design and such an uncommon harm, it is difficult to see how a reasonable jury could retroactively condemn such a uniform practice as being unreasonably dangerous. But that apparently is what Kentuc ky tort law allows. I therefore concur in the court’s opinion.