UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

WILLIAM NOE, 

Plaintiff, Case No.: 4:14-cv-12988-LVP-MKM

vs. Hon. Linda V. Parker

KING TECHNOLOGY, INC.

Defendant.

COURTNEY E. MORGAN, JR. (P29137)

BRIAN T. KECK (P77668)

Morgan & Meyers, PLC

Attorneys for Plaintiff

3200 Greenfield, Ste. 260

Dearborn, MI 48120

(313) 961-0130

(313) 961-8178 fax

cmorgan@morganmeyers.com

bkeck@morganmeyers.com

STEVEN D. BROCK (P40432)

Law Office of Storck & Dinverno

Attorney for Defendant

700 Tower Dr., Ste. 550

Troy, MI 48098

248-631-2101 main; 248-631-2111 dd

248-631-2102 fax

brocks3@nationwide.com

KIRK E. ROMAN (0030615 Ohio)

Co-Counsel for Defendant

50 S. Main St., Ste. 502

Akron, OH 44308

330-253-8877; 855-301-9448 fax

romank1@nationwide.com

REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

I. LEGAL ARGUMENT AND ANALYSIS

A. Despite conclusory statements to the contrary, Plaintiff’s 

Response fails to articulate a prima facie case of design defect.

1. The Komm Report presented by Plaintiff does not demonstrate the 

six elements required by the “risk-utility balancing test.” 

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Plaintiff argues that “[t]he evidence supporting each of the Croskey factors 

was identified in Plaintiff’s expert Komm’s report.” (Pls Resp. Defs. Mot. Summ. 

J., 9.) The risk utility balancing test “invites the trier of fact to consider the 

alternatives and risks faced by the manufacturer in designing the product and to 

determine whether in light of certain factors, ‘the manufacturer exercised 

reasonable care in making the design choices it made.” Croskey, 532 F.3d at 516 

(quoting Prentis, 421 Mich. at [591] 688.) A plaintiff must meet all six (6) 

elements identified in Croskey. 532 F.3d at 516.

a. Neither the severity of Plaintiff’s injury, nor the likelihood of its 

occurrence was foreseeable by the manufacturer at the time the product 

was manufactured.

Plaintiff argues that this “Defendant cannot claim that such product failure 

was not foreseeable as it in fact happened multiple times prior to the incident 

involving the Plaintiff.” (Pls Resp. Defs. Mot. Summ. J.,18). In support of this 

argument, Plaintiff references the two reports prepared by Plaintiff’s expert, 

Komm, appended to Plaintiff’s response as Exhibits 5 and 7. In both reports, 

Komm opines that “Similar events have occurred throughout the history of this 

product. With rare exception, they have been attributed to user error without 

thorough investigation.” (Pls Resp. Defs. Mot. Summ. J., Ex. 5, p.30; Ex. 7 p.8). 

This is the sole conclusion offered by Plaintiff’s expert in support of the 

foreseeability element.

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Prior incidents used to show foreseeability must be “substantially similar” to 

the accident at issue. Croskey, 532 F.3d at 518. It is not enough that some of the 

other incidents were deemed “explosions,” “substantial similarity means that the 

accidents must have occurred under similar circumstances or share the same 

cause.” Id. Here, Plaintiff does not demonstrate substantial similarity, but makes 

the conclusory statement that “...such a vessel will fail catastrophically at some 

point. This is just basic chemistry and physics, as outlined in Mr. Komm’s 

reports.” (Pls Resp. Defs. Mot. Summ. J., 20.) Even viewing the evidence in the 

light most favorable to the Plaintiff, Plaintiff has not demonstrated substantial 

certainty between any other incident involving this product and the incident at bar. 

b. Plaintiff has not provided evidence of a reasonable alternative design.

Despite Plaintiff’s argument that identifying a substitute material for 

manufacturing meets the pleading requirements under Michigan law, the law is 

clear that “[t]echnical, medical, or scientific knowledge is not economically 

feasible for use by the manufacturer if use of that knowledge in production of the 

product would significantly compromise the product’s usefulness or desirability.” 

See (Pls Resp. Defs. Mot. Summ. J., 15); Mich. Comp. Laws § 600.2946(2). 

Moreover, “it is incumbent upon the plaintiff to make a showing – via compelling, 

empirical evidence of an alternative design – that the chosen design was 

unreasonably dangerous.” Fisher v. Kawasaki Heavy Indus., 854 F. Supp 467, 471 

(1994). 

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Plaintiff has not argued an alternative design for this product, and merely 

refers to products that require the user to put the chemicals directly into their pool. 

(Pls Resp. Defs. Mot. Summ. J., 16.) That is not an alternative design for this 

product, those are simply different products. In fact, Plaintiff’s argument is that 

“this product is not one that needs to exist at all.” Id. Plaintiff’s only alternative is 

that the product not be made. Thus, Plaintiff has failed to meet his burden under 

the four remaining elements of the risk-utility balancing test, and Plaintiff’s claim 

must fail as a matter of law.

2. Plaintiff should not be permitted to amend his Complaint to include a 

baseless claim for gross negligence and willful disregard of defect. 

Plaintiff’s Complaint did not allege failure to warn as a basis for this action 

and thus no such claim should be presented to the trier of fact. However, out of an 

abundance of caution, this Defendant addresses those claims as follows: 

Michigan law provides that a plaintiff may also show that a product is 

defective if the manufacturer fails to warn potential consumers “of dangers 

involving the intended uses, and foreseeable misuses, of the product. Eiben v. 

Gorilla Ladder Co.,No. 11-CV-10298, 2013 U.S. Dist. LEXIS 59961, at *30 (E.D. 

Mich. April 22, 2013, (citing Gregory, 450 Mich. at 11, 538 N.W.2d 325.) To 

establish a prima facie case of failure to warn, a plaintiff must prove the following 

four elements: (1) the defendant owed a duty to the plaintiff; (2) the defendant 

breached that duty; (3) the defendant’s breach was a proximate cause of the

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plaintiff’s injuries; and (4) the plaintiff suffered damages. Id., citing Warner v. 

Gen. Motors Corp., 137 Mich. App. 340, 348, 357 N.W.2d 689 (1984). The 

standard of care for a manufacturer to warn “includes dissemination of 

information, either warnings or instructions, as is appropriate for the safe use of the 

product; such information must be adequate, accurate, and effective.” Ross v. 

Jaybird Automation, Inc., 172 Mich. App. 603, 606, 432 N.W.2d 374 (1988); 

Pettis v. Nalco Chem Co., 150 Mich. App. 294, 302, 388 N.W.2d 343 (1986). 

Whether a manufacturer owes a duty to warn is a question of law. Id. 

The plaintiff argues that “chlorine is corrosive,” and that defendant failed to 

warn customers of the risk associated with a “household contaminant” coming into 

contact with the sanitizer. (Pls Resp. Defs. Mot. Summ. J., 20). Plaintiff further 

alleges that “there is no mention of this risk anywhere on the product, or in the 

product’s operator’s manual.” Id. at 20. However, Plaintiff also submitted Exhibit 

14, the top of the sanitizer, which includes multiple explicit warnings to consumers 

including the risk of explosion if chemicals are combined. (Pls Resp. Defs. Mot. 

Summ. J., Ex. 14).

This Defendant clearly contemplated the risk that operators would be 

working with multiple chemicals in an area where this sanitizer is used. 

Accordingly, extensive warnings were issued not only above the operation 

instructions, but were also stamped into the plastic of the top. See (Pls Resp. Defs. 

Mot. Summ. J., Ex. 14). 

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Plaintiff has failed to demonstrate that a breach of any duty has occurred, or 

that this defendant has failed to meet the standard of care as articulated in Ross. As 

Plaintiff has failed to present sufficient evidence to present a prima facie case for 

failure to warn, this claim, articulated at this late date, must fail as well. 

Michigan law provides that the limitation on damages does not apply if the 

trier of fact determines by a preponderance of the evidence that the death or loss 

was the result of the defendant’s gross negligence, or if the court finds that the 

matters stated in section 2949a are true. Mich. Comp. Laws § 600.2946a(1).

To show gross negligence, a plaintiff must prove conduct so reckless as to 

demonstrate a substantial lack of concern for whether injury results. Mich. Comp. 

Law § 600.2945(d). Courts have characterized gross negligence as “a willful 

disregard of safety measures and a singular disregard for substantial risks.” Oliver 

v. Smith, 290 Mich. App. 678, 685; 810 N.W.2d 257 (2010). Plaintiff must show 

proof of conduct “so reckless as to demonstrate a substantial lack of concern for 

whether an injury results.” Maiden v. Rozwood, 461 Mich. 109, 122, 597 N.W.2d 

817 (1999). Plaintiff has not demonstrated any negligence by Defendant.

Plaintiff has not presented any evidence that this Defendant had actual 

knowledge of a substantial likelihood that this product would cause this type of 

injury. Plaintiff’s claims as to substantially similar occurrences failed to meet the 

substantial similarity test articulated in Croskey. 532 F.3d at 519. In fact, the 

specific instances Plaintiff articulates in support of this contention fall under the 

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warnings physically marked on the cap of the product. See (Pls Resp. Defs. Mot. 

Summ. J., 23; Id., Ex. 14). If a user acts in a way that was anticipated and the 

manufacturer has addressed that possibility in the warnings, it follows that a cause 

of action for failure to warn cannot stand. 

II. CONCLUSION

For the foregoing reasons, Defendant King Technology, Inc. respectfully 

requests this Honorable Court issue an ORDER granting its Motion for Summary 

Judgment. 

LAW OFFICE OF STORCK & DINVERNO

/s/ Steven D. Brock

STEVEN D. BROCK (P40432)

Attorney for Defendant 

700 Tower Dr., Suite 550

Troy, MI 48098

248-631-2111 / 248-631-2102 fax

Dated: February 5, 2016 brocks3@nationwide.com

PROOF OF SERVICE

The undersigned certifies that she caused to be served the aforementioned 

documents upon the attorney of record herein at his respective address disclosed on 

the pleadings on February 5, 2016.

BY: ECF Court Filing System

 /s/ Laura Owens

LAURA OWENS

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