IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

THE CINCINNATI )

INSURANCE COMPANY )

a/s/o JASON and )

MICHELLE HOWARD, )

)

Plaintiff, )

) CAUSE NO. 3:14-CV-1731

vs. )

)

LENNOX INDUSTRIES, )

INC., )

)

Defendant. )

OPINION AND ORDER

This matter is before the Court on the: (1) Defendant’s Motion

for Summary Judgment, filed by Defendant, Lennox Industries Inc.,

on August 6, 2015 (DE #30); (2) Defendant’s Motion to Strike, filed

by Defendant, Lennox Industries Inc., on October 6, 2015 (DE #39);

and (3) Defendant’s Request for Oral Argument on Defendant’s Motion

for Summary Judgment, filed by Defendant, Lennox Industries Inc.,

on October 8, 2015 (DE #40). For the reasons set forth below, the

Motion for Summary Judgment (DE #30) is GRANTED IN PART AND DENIED

IN PART. It is GRANTED as to Plaintiff’s claims for design defect

and failure to adequately warn, and the Clerk is ORDERED to DISMISS

these claims WITH PREJUDICE. It is DENIED as to Count II (strict

products liability) which REMAINS PENDING. The Motion to Strike

(DE #39) is DENIED. The Motion for Oral Argument (DE #40) is also
DENIED. 

BACKGROUND

This case arises out of a fire that burned the home of

Plaintiff’s The Cincinnati Insurance Company (“CIC”) insureds,

Jason and Michelle Howard (“the Howards”), on June 22, 2012. The

Howard’s home was insured by CIC, which paid approximately $408,000

as a result of the fire. CIC has brought this suit against

Defendant, Lennox Industries, Inc. (“Lennox”), alleging counts of

negligence, strict liability, and warranty based upon an air

condensing unit (“ACU”) designed, manufactured, sold, and

distributed by Lennox, that was mounted just outside and adjacent

to the Howards’ home. CIC argues that electrical arcing between

the ACU’s compressor and its power source ignited organic material

inside the ACU and ultimately caused the fire. CIC claims that the

ACU was manufactured, designed, and/or labeled in an unsafe,

defective, and inherently dangerous condition. Lennox denies the

allegations.

Lennox filed the instant motion for summary judgment on August

6, 2015 (DE #30). CIC filed a brief in opposition on September 22,

2015 (DE #35). Lennox also filed a motion to strike, requesting an

order striking Larry Cooper’s Investigative Report (DE #35-2) and

Brad O’Neal’s Engineering Report (DE #35-3) from Plaintiff’s

designated evidence in opposition to the motion for summary

2
judgment. Lennox then filed a reply brief in support of its motion

for summary judgment and motion to strike. (DE #37).1 

Undisputed Facts

A fire occurred on June 22, 2012, at the Howards’ house

located at 57711 El Dorado Drive, Goshen, Indiana. The house was

built in 2007, and equipped with a Lennox 13ACD air condensing unit

on its exterior. (Compl. ¶¶ 3, 5; Jason Howard Dep. pp. 11, 45-

46.) The ACU was installed behind the Howards’ home, adjacent to

their patio, in an area surrounded by mulch and ornamental grasses. 

(Howard Dep., pp. 47.) Mr. Howard testified that other than

spraying the outside of the ACU with a hose, neither he nor anyone

else serviced the ACU. (Id., pp. 44-45.) 

Before leaving the house on June 22, 2-12, the Howards set the

thermostat in the house to 72 degrees Fahrenheit, and left their

ACU running. Neither Jason Howard nor Michelle Howard was home at

the time of the fire. 

At approximately 3:11 p.m., the Jefferson Township Fire

Department was alerted to the fire. (Larry D. Cooper, Jr. Dep., p.

78.) They arrived at the scene at 3:19 p.m., but the home was

still heavily damaged.

1

While Lennox did follow the rule and file a separate motion

to strike, the Court notes that it would have preferred for

Lennox to file a memorandum in support of the motion to strike

instead of incorporating those arguments into its reply brief in

support of the motion for summary judgment. 

3
CIC designated Larry Cooper, an Investigator with Unified

Investigations & Sciences, Inc., as its Federal Rule of Civil

Procedure 26(a)(2)(B) witness to testify about the origin and cause

of the subject fire. Cooper opined that the subject fire

originated inside the ACU. (Ex. C to Lennox’s Designation of

Evidence in Support of Mot. For Summ. J., Larry D. Cooper, Jr. Dep.

Defs.’ Ex. 2 to Cooper Dep., p. 100.) Cooper’s report states:

The fire originated at the condensing unit on the

west exterior of the home. An electrical

malfunction (see engineering report) ignited nearby

combustibles including plant life and leaves in the

area and inside of the air conditioning unit. The

fire spread to nearby combustibles including dried

grass and mulch before spreading to the west

exposure of the home. The flames progressed upward

along the west wall before propagating into the

home through the overhang. The fire continued to

burn in the attic area resulting in partial

collapse of the roof.

(DE #35-2, Cooper’s Report, p. 2.) Cooper also believes the fire

was caused by “a high-resistant heating or arcing” which ignited

“fuels” inside the ACU and then spread to nearby combustibles,

including mulch and ornamentals, before spreading to the Howards’

home. (Id., pp. 100, 105.) Cooper does not have any opinion

regarding how the “high-resistant heating or arcing” occurred or

whether the aforementioned electrical event resulted from an

unsafe, defective, or inherently dangerous condition associated

with the ACU. (Id., pp. 97-100.) Instead, he defers to the

opinions and conclusion held by Brad O’Neal, CIC’s Federal Rule of

Civil Procedure 26(a)(2)(B) witness on the topic of electrical

4
engineering. 

CIC designated Mr. Brad O’Neal, a Senior Forensic Engineer who

is also employed by Unified, as its Federal Rule of Civil Procedure

26(a)(2)(B) witness on the topic of electrical engineering. (Ex.

D to Lennox’s Designation of Evidence in Support of Mot. For Summ.

J.; Brad O’Neal Dep. Def.’s Ex. A to O’Neal Dep., p. 1.) O’Neal

and his colleagues at Unified examined and tested the ACU and its

component parts on two occasions - September 13, 2012 and January

15, 2015. (Ex. D to Lennox’s Designation of Evidence in Support of

Mot. For Summ. J., pp. 49, 51.) Based upon the exams and testing,

O’Neal opines that the fire originated inside the ACU at the

compressor connection. (Id., pp. 52, 58, 72-74.) Specifically,

O’Neal believes the electrical arcing between the ACU’s compressor

and its power was the fire’s ignition source:

 Therefore it is my opinion that the ignition

source, based on electrical arc mapping, was not on

the exterior of the condensing unit. Arc mapping

placed the fire originating inside the condensing

unit, which was also consistent with the fire

investigator’s area of origin. Further identifying

the ignition source at the compressor power

connections, which was the farthest failure

downstream from an arc severed conductor provide

the origin and ignition source for the fire.

(DE #35-3, O’Neal Report, pp. 7-8.) 

However, O’Neal specifically testified during his deposition

that he is not offering any opinion that the alleged electrical

arcing resulted from a defective or unreasonably dangerous

characteristic of the ACU:

5
Q: You’re not offering any opinions in this case with regard

to any manufacturing defect in the Lennox air

conditioner, correct?

A: That’s correct, no manufacturing defect.

Q: You’re not offering any opinions with regards to design

defect, are you?

A: No, I’m not.

Q: You’re not offering any opinions in the area of warnings

defect, are you?

A: No, I’m not.

Q: Okay. Those are the big three in the world of product

liability. Are you aware of any others from your legal

training?

A: No, I’m not.

Q: Okay. So when I use the word defect, I’m using it in the

context that we as folks that go to law school learn

about in law school, and I trust you did, too, that

defect would include any one of those three components.

*****

Q: Do you have any different understanding of the word

defect in the context of a products liability action than

those three possible avenues?

A: I’m not aware of any, no.

Q: Okay. And you’re not offering opinions on any one of

them in this case?

A: That is correct.

Q: Okay. Nor are you aware of anyone else on behalf of

[CIC] who is offering such opinions, correct?

A: That’s correct.

6
*****

Q: Yeah. So you don’t know what caused this alleged arc?

A: I don’t know what caused the arcing, no. There’s – there

could be, like I said, all different kinds of

possibilities.

Q: But we do know that you’re not testifying that that arc

was due to any defect in the equipment, correct?

A: That’s correct.

(Brad O’Neal Dep., pp. 28-29; 140.) 

Finally, Plaintiff’s experts investigated other potential

causes of the fire. Cooper states that “no evidence of carelessly

discarded smoking material was found in this area.” (DE #35-2, p.

4.) O’Neil opined that “[n]o other competent ignition sources were

identified which would cause the damage observed; therefore, the

arcing at the compressor was the fire’s ignition source.” (DE #35-

3, p. 7.) 

DISCUSSION

Summary judgment must be granted when “there is no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a). A genuine

dispute of material fact exists when “the evidence is such that a

reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Not

every dispute between the parties makes summary judgment

inappropriate; “[o]nly disputes over facts that might affect the

7
outcome of the suit under the governing law will properly preclude

the entry of summary judgment.” Id. In determining whether

summary judgment is appropriate, the deciding court must construe

all facts in the light most favorable to the nonmoving party and

draw all reasonable inferences in that party’s favor. Ogden v.

Atterholt, 606 F.3d 355, 358 (7th Cir. 2010). “However, our favor

toward the nonmoving party does not extend to drawing inferences

that are supported by only speculation or conjecture.” Fitzgerald

v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013) (citing Harper v.

C.R. Eng., Inc., 687 F.3d 297, 306 (7th Cir. 2012)).

A party opposing a properly supported summary judgment motion

may not rely on allegations or denials in her own pleading, but

rather must “marshal and present the court with the evidence she

contends will prove her case.” Goodman v. Nat’l Sec. Agency, Inc.,

621 F.3d 651, 654 (7th Cir. 2010). If the nonmoving party fails to

establish the existence of an essential element on which he or she

bears the burden of proof at trial, summary judgment is proper. 

Massey v. Johnson, 457 F.3d 711, 716 (7th Cir. 2006).

Motion For Oral Argument

At the outset, the Court will address Lennox’s Motion for Oral

Argument as to the instant Motion for Summary Judgment. (DE #40.) 

Pursuant to Local Rule 7-5., the Court may “grant or deny a request

for oral argument or an evidentiary hearing in its discretion.” 

8
N.D. Ind. L.R. 7-5.(c)(1). Here, the parties’ memoranda have

sufficiently apprised the Court of the issues at hand, and the

Court does not believe that oral argument is necessary. 

Therefore, the Court denies Lennox’s Motion for Oral Argument (DE

#40), and turns to the merits of the Defendant’s Motion for Summary

Judgment. 

Defendant’s Motion to Strike 

Defendant, Lennox, moves to strike Larry Cooper’s

Investigative Report (DE #35-2) and Brad O’Neal’s Engineering

Report (DE #35-3) from Plaintiff’s designated evidence in

opposition to Lennox’s motion for summary judgment. Because the

argument in support of the motion to strike is included in

Defendant’s reply memorandum in support of its motion for summary

judgment (DE #37, pp. 4-8), it is a little confusing as to what

bases Defendant believes the reports should be stricken. At first,

it seems Defendant contends O’Neal’s theory is “unsubstantiated”

(id., p. 6) and maybe improper under Daubert (although that case

name is never used by Defendant). But then, Lennox argues that the

reports are inadmissible under Rule 56(c)(2) and 56(c)(4), arguing

they are inadmissible hearsay because they are not sworn to or

subscribed under penalty of perjury. (DE #44.) 

Defendants cite Howmedica Osteonics Corp. v. Tranquil

Prospects, Ltd., 482 F.Supp.2d 1045, 1057 (N.D. Ind. 2007), for the

9
proposition that “an unsworn and unverified expert report is not

Rule 56 evidence that may be relied upon to overcome a motion for

summary judgment.” (DE #44, p. 1.) While the Court made that

observation in Howmedica, it went on to rule that “[h]owever,

rather than deciding this case on hypertechnical grounds, the Court

will decide the case on its merits.” 482 F.Supp.2d at 1057. 

Motions to strike are heavily disfavored, and usually only granted

in circumstances where the contested evidence causes prejudice to

the moving party. Kuntzman v. Wal-Mart, 673 F.Supp.2d 690, 695

(N.D. Ind. 2009); Gaskin v. Sharp Elec. Corp., No. 2:05-CV-303,

2007 WL 2228594, at *1 (N.D. Ind. July 30, 2007). This Court can

consider the expert’s reports, without the need to employ a motion

to strike. Therefore, the motion to strike is denied to the extent

it challenges the admissibility of the expert reports. 

To the extent the motion to strike challenges the sufficiency

of the expert opinions expressed in the reports, Federal Rule of

Evidence 702, which governs expert testimony, provides the

following:

A witness who is qualified as an expert by

knowledge, skill, experience, training, or

education may testify in the form of an opinion or

otherwise if:

(a) the expert’s scientific, technical, or other 

specialized knowledge will help the trier of fact

to understand the evidence or to determine a fact

in issue;

(b) the testimony is based on sufficient facts or

data;

10
(c) the testimony is a product of reliable

principles and methods; and

(d) the expert has reliably applied the principles

and methods to the facts of the case. 

F.R.E. 702. In addition, in Daubert v. Merrell Dow Pharms., Inc.,

the Supreme Court fashioned a two-prong test of admissibility for

evidence based on the “scientific knowledge” mentioned in Rule 702. 

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 592 (1993). To

be admissible, evidence must be both relevant and reliable. Id. at

589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152

(1999) (noting the objective of court’s gatekeeping requirement is

to ensure reliability and relevancy of expert testimony).

Under the reliability prong, scientific evidence must be

reliable in the sense that the expert’s testimony must present

genuine scientific knowledge. Daubert, 509 U.S. at 592-93; Deimer

v. Cincinnati Sub-Zero Prods. Inc., 58 F.3d 341, 344 (7th Cir.

1995). Generally, the expert witness must employ in the courtroom

the same level of intellectual rigor that characterizes the

practice of an expert in the witness’s field. Kumho, 526 U.S. at

152. Specifically, a court may, but is not required to, consider

a nonexclusive list of four factors in assessing reliability: (1)

whether the expert’s theories and techniques can be verified by the

scientific method through testing; (2) whether the theories and

techniques have been subjected to peer review and publication; (3)

whether the theories and techniques have been evaluated for their

11
potential rate of error; and (4) whether the theories and

techniques have been generally accepted by the relevant scientific

community. Daubert, 509 U.S. at 593-94.

Under the relevance prong, the testimony must assist the trier

of fact to understand the evidence in the sense that it is relevant

to or “fits” the facts of the case. Daubert, 509 U.S. at 591;

Smith v. Ford Motor Co., 215 F.3d 713, 718 (7th Cir. 2000). In

other words, the testimony must be such that the jury can apply it

in a meaningful way to the facts at hand. This “fit” analysis

essentially represents an inquiry similar to if not

indistinguishable from the basic evidentiary inquiries into whether

evidence is relevant and, if so, whether its probative value is

nonetheless substantially outweighed by, among others, the danger

of unfair prejudice and jury confusion. See Daubert, 509 U.S. at

595; Ayers v. Robinson, 887 F. Supp. 1049, 1058-59 (N.D. Ill.

1995). 

In this case, the Court finds the expert reports of Cooper

(the Origin and Cause Investigator) and O’Neil (the Electrical

Engineer) are both reliable and relevant. Both experts used the

scientific method and relied upon NFPA 921 to conduct their

investigations and reach their conclusions. Cooper looks to

identify the origin of a fire, then attempts to “identify competent

sources of ignition within that origin.” (Cooper Dep., p. 21.) In

reaching the conclusion that the fire occurred in the ACU

12
manufactured by Lennox as a result of an electrical malfunction (DE

#35-2, p. 8), Cooper examined the scene twice, identified and

interviewed potential witnesses, researched the ACU, obtained and

read the fire report and researched the weather on the day of the

fire. (Id., pp. 3, 7.) As such, he collected facts and data in

accordance with National Fire Protection Association Publication

(“NFPA”) 921, which is a recognized guide for use by fire

investigators in the fire investigation process. See State Farm

Fire & Cas. Co. v. Electrolux Home Products, Inc., 2013 WL 3013531,

at *6 (N.D. June 17, 2013) (“courts throughout the country have

held the NFPA 921 methodology reliable under Fed. R. Evid. 702"). 

Similarly, O’Neil also utilized NFPA 921 in conducting his

investigation. O’Neal attended the second examination of the ACU,

and identified arcing on the connection between the compressor and

the power source. (DE #35-3, p. 6.) Additionally, he reviewed

Cooper’s findings, inspection photos, and conducted a laboratory

exam. (Id., pp. 3-4.) O’Neal also used information from a class

(taught by Mr. Olsen, Defendant’s expert Electrical Engineer), that

he had attended. When challenged during his deposition to identify

any text that supported O’Neal’s statement that the plug body

connected to the compressor could combust, O’‘Neal cited Olsen’s

text associated with the class “Electric Heat Generation for Fire

Investigators with extra materials on heat-induced arcing and arc

mapping.” (DE #43-6, p. 75.) According to Olsen, that same text

13
states that arcing can be a candidate for the cause of a fire

(rarely a candidate, yet, a candidate). (Id., p. 77.) O’Neal

testified that NFPA states that “if there is a single arc that you

identify, it is the most likely, most probable, the ignition source

of the fire.” Id. 

In sum, both experts gathered relevant data, applied it to the

NFPA, and reached their scientific conclusions. Their expert

testimony will clearly help a jury in determining the cause of the

fire at issue. As such, the testimony and reports of both O’Neal

and Cooper are both reliable and relevant, and are therefore

admissible under Daubert. 

Motion for Summary Judgment

1. Defective Design and Adequate Warning Claims

In Count I, Plaintiff states a claim for negligence in its

complaint, alleging, inter alia, that Lennox was negligent in

“defectively designing” and “failing to provide adequate warnings,

instructions and guide for the Air Conditioner and its component

parts.” (Compl., DE #5, p. 3.) In its memorandum in support of

the motion for summary judgment, Lennox argues that CIC has not

come forward with any evidence from which a trier of fact could

conclude that the ACU was defectively designed or had defective

warnings. (DE #31, pp. 9-10.) In its response memorandum, CIC

completely fails to address the arguments on design defect or

14
failure to warn. 

To establish a prima facie case under a design defect theory,

Plaintiffs must establish: (1) the manufacturer placed into the

stream of commerce a defectively designed, unreasonably dangerous

product; (2) a feasible safer alternative product design existed;

and (3) the product defect proximately caused the plaintiff’s

injury. See, e.g., Barnard v. Saturn Corp., 790 N.E.2d 1023, 1032

(Ind. Ct. App. 2003). Regarding the theory of negligent failure to

provide adequate warnings, a product is defective if the seller

fails to: (1) properly package or label the product to give

reasonable warnings of danger about the product; or (2) give

reasonably complete instructions on proper use of the product; when

the seller, by exercising reasonable diligence, could have made

such warnings or instructions available to the user or consumer. 

Ind. Code § 34-20-4-2. Courts have held that where Plaintiffs have

failed to show a defective design, there is no duty to warn. See

American Optical Co. v. Weidenhamer, 457 N.E.2d 181, 187 (Ind.

1983) (“Absent proof of a dangerous instrumentality, or proof of a

defect or improper design making an otherwise harmless instrument

dangerous, there is no duty to warn of product connected

dangers.”); Rogers v. Ford Motor Co., 952 F. Supp. 606, 617 (N.D.

Ind. 1997) (explaining “it is axiomatic that there can be no duty

to warn where no design defect has been shown”). 

In CIC’s response to the instant summary judgment motion,

15
Plaintiff completely fails to respond to CIC’s arguments regarding

design defect and failure to warn. Lennox’s arguments on these

points are therefore waived. See Palmer v. Marion Cnty., 327 F.3d

588, 597-98 (7th Cir. 2003) (“because [plaintiff] failed to

delineate his negligence claim in his district court brief in

opposition to summary judgment or in his brief to this Court, his

negligence claim is deemed abandoned”); Laborers’ Int’l Union of N.

Am. v. Caruso, 197 F.3d 1195, 1197 (7th Cir. 1999) (stating that

arguments not presented to the district court in response to

summary judgment motions are deemed waived). Accordingly, the

Court grants summary judgment in favor of Lennox on the claims of

design defect and failure to adequately warn.

2. Count II - Strict Products Liability

To establish a prima facie case of strict liability for a

manufacturing defect, the plaintiff must show that: (1) the product

is defective and unreasonably dangerous, (2) the defective

condition existed at the time the product left the defendant’s

control, and (3) the defective condition is the proximate cause of

the plaintiff’s injuries. Natural Gas Odorizing, Inc. v. Downs,

685 N.E.2d 155, 160 (Ind. Ct. App. 1997). A product is defective

when it is in a condition not contemplated by the expected users,

and is unreasonably dangerous when used properly. Ind. Code § 34-

20-4-1. The plaintiff has the burden of proving that the product

16
was in a defective condition that rendered it unreasonably

dangerous. Smock Materials Handling Co., Inc. v. Kerr, 719 N.E.2d

396, 401 (Ind. Ct. App. 1999). Generally, the mere fact that an

accident occurred does not create an inference of a defect in a

products liability case. See Smith v. Michigan Beverage Co., Inc.,

495 F.2d 754, 757 (7th Cir. 1974). 

Lennox argues that Plaintiff has put forth insufficient

evidence to prove that the ACU was defective. In response, CIC

cites Ford Motor Co. v. Reed, 689 N.E.2d 751 (Ind. Ct. App. 1997),

for the proposition that a plaintiff can prove a product defect by

using any of four methods: Plaintiffs may produce an expert to

offer direct evidence of a specific manufacturing defect;

plaintiffs may use an expert to circumstantially prove that a

specific defect caused the product failure; plaintiffs may

introduce direct evidence from an eyewitness of the malfunction,

supported by expert testimony explaining the possible causes of the

defective condition; and plaintiffs may introduce inferential

evidence by negating other possible causes. Reed, 689 N.E.2d at

753. 

This Court has already analyzed Reed and its similar line of

cases in Gaskin v. Sharp Electronics Corp., No. 2:05-CV-303, 2007

WL 2819660 (N.D. Ind. Sept. 26, 2007), another products liability

case which revolved around the standard of proof for a

manufacturing defect that arose from a fire. In Gaskin, this Court

17
recognized the Seventh Circuit decision in Whitted, which concluded

that:

We find that under the Indiana Strict Product

Liability Act a plaintiff may use circumstantial

evidence to establish that a manufacturing defect

existed only when the plaintiff presents evidence

by way of expert testimony, by way of negating

other reasonably possible causes, or by way of some

combination of the two.

Whitted v. General Motors Corp., 58 F.3d 1200, 1209 (7th Cir.

1995). Ultimately, this Court concluded in Gaskin that:

Following the Seventh Circuit in Whitted and the

Indiana Appellate Court in Reed, this Court

recognizes the four factors set forth in Reed as

“helpful tools” in the basic inquiry as to whether

there is sufficient evidence of a defect, and

recognizes that in some rare circumstances,

circumstantial evidence can produce reasonable

inferences from which a jury can reasonably find

that the defendant manufactured a product

containing a defect. Reed, 689 N.E.2d at 754;

Whitted, 58 F.3d at 1208; see also Smith v. Ford

Motor Co., 908 F. Supp. 590, 593 (N.D. Ind. 1995)

(“[t]he notion that a plaintiff may use

circumstantial evidence to prove a defect in an

Indiana products liability case was recently

reaffirmed by the Seventh Circuit in Whitted”). 

“By the very nature of fire, its cause must often

be proven through a combination of common sense,

circumstantial evidence and expert testimony.” 

Westchester Fire Ins. Co. v. American Wood Fibers,

Inc., No. 2:03-CV-178-TS, 2006 WL 752584, at *13

(N.D. Ind. Mar. 21, 2006) (quoting Standard

Commercial Tobacco Co., Inc. v. M/V Recife, 827 F.

Supp. 990, 1001 (S.D.N.Y. 1993)). This Court

agrees with the writings of the court in SCM Corp.

v. Letterer, 448 N.E.2d 686 (Ind. Ct. App. 1983):

The courts would obviously prefer, even in a

strict liability case, to have proof of a

specific defect causing the harm. But this is

not always possible, especially in cases where

18
the product has been destroyed due to its

malfunction. Most often the failure to 

produce the product will have a bearing only

on the reliability of the circumstantial

evidence of causation. If there is sufficient

other evidence that harm was caused by some

unspecified defect and no other cause likely,

the plaintiff ordinarily has made a

submissible cause. SCM, 448 N.E.2d at 691

(quoting 1 Frumer & Friedman, Products

Liability § 11.01[3][A], 217). 

Gaskin, 2007 WL 2819660, at *6-7.

This case is factually similar to Reed, where the plaintiff

was injured by a car fire that occurred in his garage. Although

the plaintiff’s expert testified that the fire started in the car’s

center console, no witness could pinpoint the identity of the

specific defect. However, the plaintiff “all but eliminate[d]

every possibility but a defect in the console.” Reed, 689 N.E.2d

at 755. The car was owned for only five months, and the expert

indicated that the cause of the fire was some type of electrical

defect within the center console. Id. The court found that

evidence enough for the jury to conclude that some defect in the

console caused the fire. Id.

Similarly, in this case, Plaintiffs have produced two experts. 

Cooper found that the fire originated at the ACU. (DE #35-2, p.

2.) O’Neal also opines that the ignition source was the ACU;

specifically, that arc mapping placed the fire originating inside

the condensing unit, which was also consistent with the fire

investigator’s area of origin. (DE #35-3, pp. 7-8.) Howard

19
testified that other than spraying the outside of the ACU with a

hose, neither he nor anyone else serviced it, therefore, it had not

been altered after it left Lennox’s possession. (Howard Dep., pp.

44-45.) Finally, Cooper and O’Neil investigated other potential

causes of the fire, and ruled out other sources. (DE #35-2, p. 4;

DE #35-3, p. 7.) Specifically, Cooper’s report states that “[n]o

evidence of carelessly discarded smoking material was found in this

area” (DE #35-2, p. 4), and O’Neil ultimately concluded that “[n]o

other competent ignition sources were identifies which would cause

the damage observed; therefore, the arcing at the compressor was

the fire’s ignition source” (DE #35-3, p. 7). 

While Lennox contends that Plaintiff has not properly

eliminated all causes of the fire (including failure to properly

maintain and service the ACU and thoroughly rule out careless

smoking), as this Court recognized in Gaskin: 

“The plaintiff in a products liability suit is not

required to exclude every possibility, however

fantastic or remote, that the defect which led to

the accident was caused by someone other than the

defendants.” Smith, 908 F. Supp. at 596 (quoting

Wedge v. Planters Lifesavers Co., 17 F.3d 209, 211

(7th Cir. 1994)); see also Henderson v. W.C. Haas

Realty Management, 561 S.W.2d 382, 386 (Mo. Ct.

App. 1977) (“it is not required that the evidence

exclude all possibility of another origin or that

it be undisputed; it is sufficient if all the facts

and circumstances in evidence fairly warrant the

conclusion that the fire did not originate from

some other cause”). As noted by the Court in

Smith, “[i]f plaintiff were required to disprove

every possible eventuality, virtually no products

liability action could ever survive summary

judgment.” Smith, 908 F. Supp. at 596. 

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Gaskin, 2007 WL 2819660, at *7.

Viewing the facts in the light most favorable to the

nonmovant, as this Court must at this stage of summary judgment, it

finds that Plaintiff has sufficiently eliminated other reasonably

possible causes, and has satisfied the fourth method of proving a

manufacturing defect as annunciated in Whitted and Reed. As such,

summary judgment is inappropriate on Count II, for manufacturing

defect. 

3. Breach of Warranty (Count III)

The Court makes a final note that Count III states a claim for

breach of warranty, alleging Lennox breached its warranty “by

manufacturing, designing, selling and distributing a defective unmerchantable Air Conditioner.” (Id., p. 6.) CIC does not argue in

its motion for summary judgment or memoranda in support that it is

entitled to summary judgment on Count III for breach of warranty

(indeed, neither party addresses the breach of warranty claim at

all); therefore, Count III survives and remains pending. 

CONCLUSION

For the reasons set forth below, the Motion for Summary

Judgment (DE #30) is GRANTED IN PART AND DENIED IN PART. It is

GRANTED as to Plaintiff’s claims for design defect and failure to

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adequately warn, and the Clerk is ORDERED to DISMISS these claims

WITH PREJUDICE. It is DENIED as to Count II (strict products

liability) which REMAINS PENDING. The Motion to Strike (DE #39) is

DENIED. The Motion for Oral Argument (DE #40) is also DENIED. 

DATED: February 9, 2016 /s/ RUDY LOZANO, Judge

United States District Court

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