UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MEEMIC INSURANCE COMPANY, as 

subrogee of Gary and Candace Keinath,

Plaintiff, Case No. 09-10155

v. Hon. Nancy G. Edmunds

HEWLETT-PACKARD COMPANY,

Defendant.

_______________________________/

OPINION AND ORDER GRANTING DEFENDANT’S MOTION FOR

SUMMARY JUDGMENT [18]

This dispute comes before the Court on Defendant’s motion for summary judgment

pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below,

Defendant’s motion is GRANTED. 

I. Facts

Plaintiff Meemic Insurance Company filed suit against Defendant Hewlett-Packard

Company alleging claims of “Negligence / Products Liability / Breach of Implied Warranty”

arising out of a house fire that occurred on January 7, 2008 in Metamora, Michigan. Plaintiff

insured the home and filed this subrogation action in an attempt to recoup monies paid to

cover the loss it sustained. Plaintiff’s claims are based on its assertion that the fire started

due to an unknown defect in the AC power adapter for a printer manufactured by

Defendant.

A. Hewlett-Packard Printer and its AC Power Adapter
 1

 “The HP model 097-2105 AC adapter converts 120 Vac to 32 Vdc power for printer

operation. The adapter is housed in a rectangular plastic enclosure ... The adapter uses

the general principle known as an off-the-line switcher. It converts the incoming 120 Vac

to DC then switches the DC at high frequency through a transformer to produce low voltage

AC and the [sic] converts that AC to DC. This scheme is in worldwide use in consumer

electronics in such items as computer power supplies, battery chargers and AC adapters

for notebook computers.” (Def.’s Mot., Ex. D. at 2.)

 2 Specifically, Gary testified that—on two separate occasions—he physically touched

the AC power adapter and it was not warm. (Gary Keinath Dep., Def.’s Mot., Ex. B at 20.)

2

Plaintiff’s insureds, Gary and Candace Keinath, purchased a Hewlett-Packard printer,

Model No. C8970A, with an AC power adapter,1

 Model No. 097-2105, in August 2007.

(Candace Keinath Dep., Def.’s Mot., Ex. A at 23.) Candace used the printer for at-home

projects and went through approximately one ream of paper every six to eight weeks. (Id.

at 24-25.) The printer was located on an oak roll-top desk in their living room. (Id. at 26,

32.) The printer was connected to the AC power adapter which, along with the computer

desktop and monitor, was plugged into a power strip/surge protector. (Gary Keinath Dep.,

Def.’s Mot., Ex. B at 17-18.) The power strip was plugged into an outlet in the living room

near the desk. (Candace Keinath Dep., Def.’s Mot., Ex. A at 32.)

The Keinaths never experienced any issues with the printer. (Candace Keinath Dep.,

Def.’s Mot., Ex. A at 30; Gary Keinath Dep., Def.’s Mot., Ex. B at 17.) They never smelled

or viewed anything that would indicated overheating or burning from the printer or the AC

power adapter. (Candace Keinath Dep., Def.’s Mot., Ex. A at 30; Gary Keinath Dep., Def.’s

Mot., Ex. B at 20-22.) And, neither the printer nor the AC power adapter was ever

noticeably warm to the touch.2

 (Candace Keinath Dep., Def.’s Mot., Ex. A at 30; Gary

Keinath Dep., Def.’s Mot., Ex. B at 20.)
3

The printer was last used by Candace approximately 4 to 7 days prior to the fire.

(Candace Keinath Dep., Def.’s Mot., Ex. A at 53.) After she was done using the printer, she

turned it off and never turned it on again. (Id.) There is no record of anyone using the

printer after that time. 

B. Keinath’s Home Fire

On January 7, 2008, Candace came home from work to find her house on fire.

(Candace Keinath Dep., Def.’s Mot., Ex. A at 57-58.) The Metamora Township Fire

Department responded to Candace’s 911 call and extinguished the fire. The fire department

reported that “[t]he fire was contained to the living room, kitchen, and basement area.”

(Def.’s Mot., Ex. C at 2.)

The fire appeared to start along the South wall of the house. Located in the

South end of the house is the kitchen and living room. Separating the two

rooms is a half wall. On the East side of the half wall is the kitchen and on the

West side of the wall is the living room. The fire originated in the area of

where the half wall meets the South wall of the house. The fire started down

low around floor level, possible [sic] in one of the walls. The fire then burnt

[sic] up the South wall. On the South wall I seen were [sic] the dry wall and

2x4 studs had been burnt up. The half wall had burnt up about 2 feet out from

the South wall.

... On the living room side of the half wall there were two electrical out lets.

The one to the South had been damaged by fire, however the one to the

North was not damaged by fire.

Along the South wall was a computer desk. On this desk was a computer,

monitor, and a printer. All three of these items were plugged into a power

strip. The power strip was plugged into an out let that was behind the

computer desk. I later found the power strip and it was still plugged into the

out let. The power strip had minor damage from the fire. The power strip was

found laying on the floor along the South wall about 3 feet West of the area

of origin. Also along the South wall in the area of origin was what appeared

to be a cable and phone box. 
4

(Def.’s Mot., Ex. C at 2.) When the fire department made contact with Candace, she

informed them that, after she left for work, her daughter was on the computer and most

likely left the computer on. Candace also told them that the power strip “was always on.”

(Def.’s Mot., Ex. C at 2.)

The fire department determined the “cause of the fire is unknown and undetermined,

but possibly electrical.” (Def.’s Mot., Ex. C at 2.) The fire department then called in

Sergeant Bush of the Michigan State Police. Bush “looked through the house,” performed

an investigation, and stated that “he believed that it was probably electrical but he said that

he was going to leave the cause undetermined at this time.” (Id.)

C. Investigation to Determine Cause of the Fire

Plaintiff and Defendant dispute the origin and cause of the fire. Each party had two

independent experts investigate the fire: a cause and origin expert and an electrical

engineering expert. A summary of the four investigations follow. 

1. Cause and Origin Experts

Cause and origin experts were retained to determine the exact location in the home

that the fire originated and also to subsequently identify the specific cause of the fire.

a. Plaintiff: Gary Kraft

Gary Kraft of Herndon & Associates was retained by Plaintiff to investigate the cause

and origin of the fire. Kraft concluded “that the fire originat[ed] within the living room, at the

northeast corner. Specifically, the origin is identified as the area of the position of the wood

roll top desk.” (Pl.’s Mot., Ex. 3 at 12.) 

It was the findings of the inspection that there was evidence of fire originating

in the area of the north side of the living room. ... 
5

This Investigator, after complete examination and inspection of the structure,

focused the fire investigation at the north end of the living room, at the

northeast corner. It is further identified as the position of the wood roll top

desk which housed the computer and components. The area was identified

for origin as a result of the destruction to the floor assembly and the side

walls destruction. ...

The fire investigation determined that there was fire damage and destruction

to the floor at the north end of the desk, within the northeast corner. The fire

progressed into the cabinet at the left/north end of the desk, causing

destruction to the north panel and the drawer compartment. There is further

evidence of exposure/fire damage to the printer and hard drive. ...

The printer had been discovered within the debris of the basement.

The fire investigation within the living room revealed damage and destruction

at the north end of the roll top desk and destruction to the computer

components, especially the printer. A portion of the service cord was found

that included the three prong plug. Also discovered at the remains of the

desk were the cords for the hard drive and monitor. ...

The investigation at the desk revealed a monitor with keyboard, hard drive,

and printer. The electrical service cords travel to the back of the desk and are

plugged into a power strip. The power strip is plugged into the north central

duplex/outlet. ...

The investigation also determined, based on visual examination, no evidence

of causal factors associated with the side wall electrical service. There further

was no specific evidence to indicate causal factors or fault associated with

the power strip, computer monitor and hard drive. No determination could be

made in regard to the printer.

(Pl.’s Mot., Ex. 3 at 7-9.) Like the fire department, Kraft ultimately concluded that “the cause

of the fire is undetermined.” (Id. at 12.) Although Kraft could not conclusively determine the

cause of the fire, his report indicates that he “believe[d] the ignition source [was] associated

with electrical fault [and that] [t]he electrical fault may be associated with the Hewlett

Packard printer.” (Id.)

b. Defendant: Doug McGrew
6

Doug McGrew of Fire Cause Analysis was retained by Carl Warren & Company to

investigate the fire for Defendant. Specifically, McGrew was not asked to identify the cause

and origin of the fire, but instead “to evaluate if there was any involvement of the HewlettPackard equipment in the fire.” (McGrew Dep., Pl.’s Mot., Ex. 2 at 36.) McGrew performed

an on-site inspection and was accompanied by one of Defendant’s product safety

engineers. (Id. at 23.) Contrary to Kraft’s conclusion as to origin, McGrew “indicated in his

report that the fire started in the basement, on the floor below where the adapter was

located.” (Def.’s Mot., Ex. D at 5.) McGrew also testified that, although he was unable to

identify the exact cause of the fire, he was able to eliminate the AC power adapter as a

potential cause of the fire. (Id. at 36-37.)

2. Electrical Engineering Experts

Because neither cause and origin expert was able to conclusively identify the cause

of the fire and because Kraft concluded, consistent with the fire department, that the cause

was possibly electrical, electrical engineering experts were retained to investigate further.

a. Plaintiff: Michael McGuire

Based upon Kraft’s suspicion that the fire was electrical in nature, Plaintiff retained

Michael McGuire to investigate various electrical components, and to specifically

investigate whether the printer’s AC power adapter failed causing the fire at issue.

(McGuire Dep., Def.’s Mot., Ex. E at 24.) McGuire is employed by EFI Global as a Senior

Electrical Engineer and Engineering Supervisor. (Id. at 7, 11.) EFI’s clients are typically

insurance companies involved in subrogation actions, and McGuire is responsible for

investigating the losses of those clients that require the assistance of an electrical engineer.

(Id. at 7, 14.)
 3

 This includes, inter alia, the evidence Kraft tagged. Kraft tagged the following:

Evidence #1 is the printer from the living room desk area.

Evidence #2 is the computer components of monitor and hard drive.

Evidence #3 is the power strip and all cords. 

The investigation also tagged the electrical items found within the basement

debris, that included the recessed light cans and computer cord. 

(Pl.’s Mot., Ex. 3 at 12.)

 4 McGuire testified that “[t]he failure mode, as far as I can tell it’s the entire power supply

heated up. I don’t know which specific component caused the heat, but that circuit board

heated up sufficiently to start a fire. ... The heat adaptor would have ignited the housing

first, and then if it’s sitting on the carpet, the carpet and the floor and any other surrounding

combustibles.” (McGuire Dep., Def.’s Mot., Ex. E at 51.)

Q: How about a manufacturing defect, can you tell me if it failed as a result

of a manufacturing defect?

A: That would be my opinion, yes.

Q: And what would be the manufacturing defect that allowed it to fail?

A: I can’t tell in this case specifically what component it was. ...

Q: So it’s your opinion that it is a manufacturing defect, but you can’t tell me

what the defect is?

A: Right.

(Id. at 55.)

7

McGuire was provided the evidence3 that was retrieved from the home and set up a

lab examination of the evidence. (Id. at 20-21, 24.) At the examination, McGuire “[j]ust

examined everything that was recovered from the scene[,]” which included the AC power

adapter at issue here. (Id. at 21.) 

After that examination, McGuire concluded that the cause of the fire was a failure in

the printer’s AC power adapter, most likely due to an unknown manufacturing defect.4

McGuire’s opinion was based on: (1) a visual inspection of the AC power adapter; (2) the

fact that Kraft informed him that the AC power adapter was within the area of origin; (3) that

the insulation on the AC power adapter was still intact at the remote ends of each cord; and
8

(4) that the AC power adapter was damaged severely enough to completely destroy the

housing material. (Id. at 24, 32, 42-43.) 

When you find a single device that is the only thing of any really

consequential damage, and the damage is much more severe than anything

else, I think that’s pretty trivial. I think this is about as simple as it gets.

(Id. at 42.)

b. Defendant: Donald Galler

Donald Galler of Electrical Engineering Solutions was retained by Defendant to

“participate in the examination of some evidence retained from the fire at the Keinath

residence and investigate the possible role of the AC power adapter in the fire.” (Galler

Dep., Def.’s Mot., Ex. F. at 7; Def.’s Mot., Ex. D. at 2.) Galler explains that

[a]n electrical engineer’s role in a fire investigation is different than the role

of a cause and origin investigator. A cause and origin investigator observes

fire patterns, considers the structure and ventilation of the structure and

conducts interviews to determine the area of origin of the fire. Typically the

electrical engineer’s role is to review electrical information from the scene to

help confirm the area of origin and, in cases where product failures are

involved, to determine whether or not a specific product played a role in

causing the fire. Several fundamental activities are done to investigate

product failures: 

a. review historical information about specific product failures–such as

product recalls.

b. examine exemplar products to identify the circuitry, mechanical structure

and materials used in the product.

c. review the schematics and specifications of the product and its circuitry.

d. make calculations regarding possible failure modes.

e. review scientific literature about the product or its components.

f. perform electrical testing to identify product failure modes.

6. These steps are part of a more general process (sometimes called “the

scientific method”) wherein hypotheses are developed as to potential fire

causes (possibly considering several products in the area of origin) and the

steps above are done to test and eliminate the various hypotheses until a

single likely hypothesis remains.

(Galler Aff., Def.’s Reply, Ex. A at 1-2.)
 5

 As to McGuire’s report, Galler opined that “[a]lthough Mr. McGuire does a reasonably

complete job looking at the evidence that was collected, he does nothing from an electrical

engineering standpoint to show that [the AC power adapter] failed or that it is even possible

for the adapter to become an ignition source.” (Def.’s Mot., Ex. D. at 5.) Galler also opined

that:

7. Other than forming a hypothesis (apparently just one), Mr. McGuire has

failed to perform any of the above mentioned activities (a-f) but instead has

relied on a single observation (“Damage on the printer A/C power adapter

was by far the most severe”) with respect to the A/C power adapter. This

observation is not electrical in nature and is usually one the cause and origin

investigator, not the electrical engineer, relies upon in analyzing the fire

scene. In fact it is not useful from a purely electrical engineering standpoint

since any product located near an area of prolonged burning would be

heavily damaged. 

8. Mr. McGuire did not examine an exemplar A/C power adapter or consider

the information provided by HP (steps b and c above) in developing his

opinions. Had he done so he would have been aware of the construction (for

example, the product has 2 fuses and a flame retardant enclosure) and the

rigorous safety testing (some of which is essentially the same as the failure

mode he proposes–loose connections) that the product has undergone.

Using this information Mr. McGuire should have rejected the hypothesis that

the A/C power adapter was the cause of the fire. 

9. Mr. McGuire ... has done no testing, calculations or sited any scientific

literature that can be reviewed or repeated by another engineer to verify his

conclusions.

(Galler Aff., Def.’s Reply, Ex. A at 2-3.)

 6

 According to Galler’s deposition testimony: 

The AC adapter has a number of safety features. The first one or principal

one of the function features is [an electronic current limiting] that when it is

operating and supplying power to the printer, it measures–as it’s operating,

9

As part of his investigation, Galler reviewed the reports of McGrew, Kraft, and

McGuire,5 performed an examination of evidence at EFI, reviewed the AC power adapter’s

schematics and safety certifications, and tested an exemplar AC power adapter. Galler

ultimately concluded that the “AC [power] adapter did not start the fire at the Keinath

residence.” (Def.’s Mot., Ex. D. at 6.)

My testing and the certification testing indicate that there are numerous

safety features6 in the adapter design, and that even a critical component
it measures the output current to the printer. 

If there should be some abnormal activity, and the abnormal activity could be

a number of things, but let’s say there’s some abnormal activity and that

makes the current level go up beyond to what is normal, then the current

limiting feature prevents the current from going any higher than that level.

(Galler Dep., Def.’s Mot., Ex. F. at 22.) The AC power adapter is also equipped with two

fuses: an AC fuse and a DC fuse. (Id. at 25.) The fuses back up the electronic current

limiting feature such that if it does not operate correctly and the current increases, the fuse

will “open” (or “blow”) and interrupt the current. (Id.)

 7 In other words, the fuse did not “blow.” 

10

failure cannot result in a fire. In addition to these safety features the adapter

has a flame retardant plastic enclosure which contributes to safety and the

ability to pass the numerous safety tests.

Turning now to the physical evidence aspect associated with the adapter, I

observed that the AC line fuse was intact.7

 If a failure had occurred it would

have resulted in fuse operation, which did not occur. Putting this observation

aside and allowing the assumption that a failure of the adapter had occurred

to start a fire then we would expect to find electrical activity on the AC power

cord of the adapter and no such activity was found. Subsequently we would

expect the power strip circuit breaker to be tripped and it was not. These last

two conditions (namely arcing on the AC line cord and a tripped power strip

breaker) would be expected outcomes of a fire starting near the adapter even

from another unrelated cause. The absence of these electrical indicators

combined with the fuse condition is inconsistent with a fire caused by an AC

adapter failure. 

The fact that the printer was not in use at the time the fire started is also

generally inconsistent with a fire starting from the adapter as there is very

little electrical stress on the components. 

A further inconsistency is that there was no electrical activity found an ANY

of the electrical material or wiring collected from the fire scene. This is very

unusual and suggests that the fire actually started in a completely different

area than was identified by EFI and Hendron. Mr. McGrew ... indicated in his

report that the fire started in the basement, on the floor below where the

adapter was located. This might explain the absence of electrical activity on

the collected evidence if the early fire development in the basement attacked

electric supply circuits and caused breaker tripping before the fire progressed

to the first floor.
11

(Def.’s Mot., Ex. D. at 5.) (Accord Galler Dep., Def.’s Mot., Ex. F. at 17.)

On May 11, 2009, Plaintiff filed this subrogation action in the United Stated District

Court for the Eastern District of Michigan. [Docket Text # 1.] This matter comes before the

Court on Defendant’s motion for summary judgment pursuant to Federal Rule of Civil

Procedure 56.

II. Summary Judgment Standard

Summary judgment is appropriate only when there is “no genuine issue as to any

material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(c). The central inquiry is “whether the evidence presents a sufficient disagreement

to require submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986). Rule 56(c)

mandates summary judgment against a party who fails to establish the existence of an

element essential to the party’s case and on which that party bears the burden of proof at

trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

The moving party bears the initial burden of showing the absence of a genuine issue

of material fact. Celotex, 477 U.S. at 323. Once the moving party meets this burden, the

non-movant must come forward with specific facts showing that there is a genuine issue

for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In

evaluating a motion for summary judgment, the evidence must be viewed in the light most

favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).

The non-moving party may not rest upon its mere allegations, however, but rather “must

set forth specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e).

The mere existence of a scintilla of evidence in support of the non-moving party’s position
12

will not suffice. Rather, there must be evidence on which the jury could reasonably find for

the non-moving party. Hopson v. DaimlerChrysler Corp., 306 F.3d 427, 432 (6th Cir. 2002).

III. Analysis

Plaintiff’s one-count Complaint alleges “Negligence / Products Liability / Breach of

Implied Warranty.” (Compl. Count I.) Defendant contends that these claims fail for two

reasons. First, Defendant claims that the opinion of Plaintiff’s electrical expert, McGuire,

must be excluded pursuant to Federal Rule of Evidence 702 as unreliable under the

standards set forth by the Supreme Court in Daubert v. Merrell Dow Pharm., Inc., 509 U.S.

579 (1993), and its progeny. Defendant concludes that because Plaintiff’s only evidence

that the AC power adapter caused the fire is the opinion of McGuire, and assuming

McGuire’s opinion does not survive Daubert scrutiny, Plaintiff’s claims must fail.

Alternatively, and even if McGuire’s opinion is admissible, Defendant claims that Plaintiff

cannot establish that the allegedly defective AC power adapter caused the fire or that the

AC power adapter was even defective—both necessary elements of its prima facie case

of products liability, negligence and breach of implied warranty. The Court addresses each

of Defendant’s alternative basis for summary judgment in turn.

A. McGuire’s Opinions are Unreliable and Inadmissable 

Courts considering expert testimony examine admissibility within the context of

Federal Rule of Evidence 702. 

If scientific, technical, or other specialized knowledge will assist the trier of

fact to understand the evidence or to determine a fact in issue, a witness

qualified as an expert by knowledge, skill, experience, training, or education,

may testify thereto in the form of an opinion or otherwise, if (1) the testimony

is based upon sufficient facts or data, (2) the testimony is the product of

reliable principles and methods, and (3) the witness has applied the

principles and methods reliably to the facts of the case.
13

Fed. R. Evid. 702. In Daubert, the United States Supreme Court held that Rule 702

requires district courts to ensure that expert testimony “both rests on a reliable foundation

and is relevant to the task at hand.” Id. at 597. See also Kumho Tire Co. v. Carmichael, 526

U.S. 137, 152 (1999) (expanding Daubert’s analysis of expert scientific testimony to cover

expert testimony based on “technical” and “other specialized knowledge”). Thus, Rule 702

imposes a “gatekeeping” duty on district courts, which must exclude unreliable and

irrelevant evidence. See, e.g., Conwood Co., L.P. v. U.S. Tobacco Co., 290 F.3d 768, 792

(6th Cir. 2002).

1. Testimony Not Product of Reliable Principles and Methods

First, the Court must determine “whether the experts’ testimony reflects ‘scientific

knowledge,’ whether their findings are ‘derived by the scientific method,’ and whether their

work product amounts to ‘good science.’” Daubert v. Merrell Dow Pharmaceuticals, Inc.,

(on remand), 43 F.3d 1311, 1315 (9th Cir. 1995), cert. denied, 516 U.S. 869 (1995)

(quoting Daubert, 509 U.S. at 590, 593). “An expert opinion that is based on scientifically

valid principles will satisfy Fed. R. Evid. 702; an expert’s subjective belief or unsupported

speculation will not.” Smelser v. Norfolk So. RR Co., 105 F.3d 299, 303 (6th Cir.1997),

abrogated on other grounds by Morales v. American Honda Motor Co., Inc., 151 F.3d 500

(6th Cir. 1998) (quoting Daubert (on remand), 43 F.3d at 1316). Id. Thus, the Court should

focus on the expert’s methodology rather than the expert’s conclusions, but the conclusions

must be connected to the existing data by more than the ipse dixit of the expert. See

General Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (“[N]othing in either Daubert or the

Federal Rules of Evidence requires a district court to admit opinion evidence which is

connected to existing data only by the ipse dixit of the expert.”).
14

In its gatekeeping role, the Court is to consider the basis of an expert’s opinion by

evaluating: (1) whether the theory or technique can be and has been tested; (2) whether

it has been subjected to peer review and publication; (3) its known or potential error rate

and the existence and maintenance of standards controlling the technique’s operation; (4)

whether it has attracted widespread acceptance in a particular field; and (5) “whether the

experts are proposing to testify about matters growing naturally and directly out of the

research they have conducted independent of the litigation, or whether they have

developed their opinions expressly for purposes of testifying because the former provides

important objective proof that the research comports with the dictates of good science.”

Smelser, 105 F.3d at 303.

To evaluate the admissibility of expert testimony, the Court must also consider the

purpose for which the testimony is offered. Here, Plaintiff seeks to offer McGuire’s

testimony to establish that the cause of the fire was a failure in the printer’s AC power

adapter. McGuire’s opinion was based, in part, on a visual inspection of the AC power

adapter.

Q: And what did you do personally? Just can you walk through what you did

at the examination?

A: Just examined everything that was recovered from the scene. ...

Q: And did you take x-rays?

A: Yes. ...

Q: ... Was there anything significant that you saw or found in the x-rays that

were taken?

A: No. You could see it with the naked eye. I don’t even know why we took

the x-rays. There was nothing to see. ...

Q: And the review of the x-rays taken ..., I think you told me those are fairly

insignificant?

A: Yeah. I don’t think they show anything that the photographs don’t show.
15

Q: So there is nothing–can you see any–I’ll says this for lack of a better

term–any failures of the equipment through the x-rays?

A: No. I don’t think it uncovered anything, anything new.

(McGuire Dep., Def.’s Mot., Ex. E at 21, 33.) McGuire’s opinion was also conditioned on

the fact that Kraft informed him that the AC power adapter was within the area of origin. 

Q: What did you and Mr. Kraft talk about?

A: He just told me he had a fire that started and the [AC power adapter] was

the origin and that’s pretty much it. And we were going to set up a lab exam.

Q: Did he provide you with any thought, comments, theories?

A: He may have, but that was a while ago.

Q: Anything that sticks in your mind?

A: Just the fact that he believed that the fire started at that [AC power

adapter]. ...

Q: And I think you said before your discussion with Mr. Kraft was that he

believed the origin was a certain spot and the power supply was at the

origin?

A: Right. ...

Q: Under 6.2, which is your analysis, you say here: More importantly, Mr.

Kraft determined that the fire originated in the area of the computer system

not near the ceiling. Is that based on your verbal conversations with Mr.

Kraft?

A: Right. ... 

(McGuire Dep., Def.’s Mot., Ex. E at 24, 32, 36.) (See also id. at 32 (“Q: ... The basis for

conclusions [sic] are lab examination ..., discussion with ... Kraft ..., and review of x-rays

taken ... A: Yes.”).)

McGuire ultimately concluded that, based on the localized nature of the damage to the

AC power adapter, some defect must have occurred and resulted in a fire. 

A: Right. It shows the localized nature of the damage.

Q: Did you rely on–do you have any published or peer reviewed materials

that you relied on to make that statement?
16

A: Well, I think you can look at anywhere. You can show that when you have

localized damage on a piece of equipment that that’s more likely to be an

origin as opposed to the result of a fire, because the fire can’t attack an

individual piece of equipment like that. I just doesn’t happen. ...

Q: That evidence clearly indicates that the fire originated at the [AC power

adapter] ... ?

A: I think if you look at any piece of equipment, if you look at localized

damage, you can look at any document written by someone that’s

investigated fires, when you have minor damage, the area with the heavy

damage is going to be your cause. I think that’s pretty trivial. ...

Q: Can you tell me or point to any peer review or any literature to support that

opinion?

A: Yes, it’s the same thing. When you find a single device that is the only

thing of any really consequential damage, and the damage is much more

severe than anything else, I think that’s pretty trivial. I think this is about as

simple as it gets. ...

Q: What is it then about the condition of the adaptor portion, the power strip

that you found, that tells you it was the cause?

A: Again, if you’re talking about power supply, the localized damage, the

localized damage is not feasible from a fire that started elsewhere. It simply

isn’t feasible. ...

(McGuire Dep., Def.’s Mot., Ex. E at 38-39, 41-42, 50.) 

Defendant claims—assuming arguendo McGuire is qualified to offer opinion

testimony—his opinion here is unreliable and should not be admitted to support Plaintiff’s

claims. Specifically, Defendant contends that McGuire’s opinions are not the product of

reliable principles and methods because he failed to test any of his theories and because

he did not offer any theory that has been subjected to peer review and publication, has a

known or potential error rate, or is generally accepted in the engineering community. 

“Daubert teaches that expert opinion testimony qualifies ... under Rule 702 only if it

is derived by the scientific method and is capable of validation.” Smelser, 105 F.3d at 304.

McGuire’s opinion—that the cause of the fire was a failure in the printer’s AC power
 8

 “[A] key question to be answered in determining whether a theory or technique is

scientific knowledge that will assist the trier of fact will be whether it can be (or has been)

tested. Scientific methodology today is based on generating hypotheses and testing them

to see if they can be falsified; indeed, this methodology is what distinguishes science from

other fields of human inquiry.” Daubert, 509 U.S. at 593. As stated in the advisory

committee notes to Rule 702, whether the expert’s theory has been or can be tested means

whether the theory “can be challenged in some objective sense, or whether it is instead

simply a subjective, conclusory approach that cannot reasonably be assessed for

reliability.” Committee Notes on Rules, 2000 Amendments. 

Plaintiff has presented no evidence that McGuire’s opinion is based upon well

established and tested concepts generally applicable to electrical engineering. See, e.g.,

Cook v. American Steamship Co., 53 F.3d 733, 739 (6th Cir. 1995), overruled on other

grounds by General Electric v. Joiner, 522 U.S. 136 (1997) (holding that it was error for the

trail court to allow an expert to speculate that a marine rope had failed from exposure to a

torch when the only “test” that was conducted was “to visually examine the frayed end of

the line with the naked eye and under a low power microscope.” In particular, the Sixth

Circuit concluded that the expert’s causation opinion was not based upon science even

though it was “adorned ... in the dress of scientific or technical expertise.”)

 9

 Although not dispositive, peer review and publication by the scientific community

“increases the likelihood that substantive flaws in methodology will be detected.” Daubert,

509 U.S. at 593.

 10 “[T]he court ordinarily should consider the known or potential rate of error ... and the

existence and maintenance of standards controlling the technique’s operation.” Daubert,

509 U.S. at 594.

17

adapter—cannot be considered “reliable” when he: (1) failed to perform any testing, rely

upon any principles that have been tested concerning the AC power adapter’s alleged

failure,8 (id. at 10, 23, 29, 51-52), or perform a comparative analysis (id. at 28, 52); (2)

failed to subject his theories to peer review,9 (id. at 10, 52-53), or consult any published

materials prior to or after the examination, (id. at 23); (3) failed to provide any empirical

testing information concerning his theories’ rates of error and has not offered evidence that

shows whether or how often his proffered opinion is based upon methods that may produce

false results,10 (id. at 53); and (4) failed to identify any level of general acceptance
 11 “Finally, general acceptance can yet have a bearing on the inquiry. A reliability

assessment does not require, although it does permit, explicit identification of a relevant

scientific community and an express determination of a particular degree of acceptance

within that community. Widespread acceptance can be an important factor in ruling

particular evidence admissible, and a known technique which has been able to attract only

minimal support within the community may properly be viewed with skepticism.” Daubert,

509 U.S. at 594 (internal quotations and citations omitted).

 12 Although not necessary to reach a determination as to admissibility under Daubert,

the Court also notes that McGuire: (1) failed to provide any possible explanation for the

alleged failure of the AC power adapter, (supra, fn.4); (2) failed to adequately examine the

AC power adapter including his failure to determine whether the AC fuse had “blown”,

(McGuire Dep., Def.’s Mot., Ex. E at 46-47); (3) failed to research the AC power adapter

including reviewing the product’s component materials or their properties, wiring schematic,

safety features, applicable CB/UL testing information, or other technical charts and

materials (id. at 46-49); (4) failed to examine the scene or speak to any witnesses (id. at

23-24, 56); and (5) failed to perform a destructive analysis of the AC power adapter. These

facts, in addition to the fact that the cases address the admissibility of cause and origin

experts not electrical engineer experts, distinguish the authority Plaintiff relies upon to

support the admissibility of McGuire’s opinion. See, e.g., George v. Ronco Inventions, LLC,

No. 02-1436, 2004 WL 546898 (D. Kan. Mar. 2, 2004); Savage v. Scripto-Tokai Corp., 266

F.Supp.2d 344 (D. Conn. 2003). 

McGuire did, however, attempt to eliminate some other potential causes in the area

of origin identified by Kraft. (See, e.g., McGuire Dep., Def.’s Mot., Ex. E at 33 (eliminating

the surge suppressor as a possible cause).) And, besides from the visual examination and

the x-ray, McGuire also took measurements of the circuit board and the power cord. (Id.

at 35.)

 13 Moreover, McGuire acknowledged that if the origin of the fire was actually somewhere

else in the home then his opinion may differ. 

Q: If Mr. Kraft was wrong and the origin was not where he thought it was,

would that change your opinions in this case? 

A: It could.

(McGuire Dep., Def.’s Mot., Ex. E at 37.)

Q: So if the origin–I think we said this before, if the origin was actually

somewhere else, then your opinion then could differ?

18

applicable to his methodologies,11 (id. at 54).12 McGuire’s attempt to prove his

hypothesis—that an unknown manufacturing defect in the AC adapter caused the

fire—solely on the occurrence of the fire, the reported area of origin, and a visual inspection

of the AC power adapter does not withstand Daubert scrutiny.13
A: Yes.

(Id. at 58.)

 14 The Chester court, in part, relied on Oddi v. Ford Motor Co., 234 F.3d 136 (3rd Cir.

2000) which affirmed a district court’s exclusion of expert testimony as to the cause of an

automobile accident based upon Daubert. In affirming, the court placed great emphasis on

the fact that plaintiff’s expert never tested his theory on causation nor did he perform any

separate tests or experimentation to support his conclusions. The Oddi court stated:

19

Although McGuire developed a general hypothesis—that the AC power adapter

caused the fire—he failed to show that the AC power adapter could have failed or even had

the capability of causing such a fire. McGuire’s conclusions are not based upon reliable

principles and methods, but instead are based primarily upon his “real world experience.”

(Pl.’s Resp. at 10.) 

Plaintiff contends that “[f]ire cases are unique to the extent that the defect in the

product which results in the fire, does not, in many cases survive the calamity it produced.”

(Pl.’s Resp. at 8.) Plaintiff offers the following in support: 

[n]ot every event is capable of replication, nor does every opinion in a fire

case require a peer review ..., the purported impossibility of an event does

not always reflect what occurs in the real world. In that regard Mike McGuire

has prepared an affidavit setting forth his real world experience and the basis

for his conclusion, to rebut the esoteric arguments, that his opinions are not

valid or subject to peer review because he failed to try to recreate a scenario

which may repeat itself in less than one in 100,000 cases. 

(Id. at 10.) The Court is not persuaded by Plaintiff’s contention. See, e.g., Chester Valley

Coach Works, Inc. v. Fisher-Price, No. 99-4197, 2001 WL 1160012, at *3 (E.D. Pa. Aug.

29, 2001) (holding that an expert’s opinion “as to fire origin and causation [that was] not

based on any testing, experimentation, or generally accepted texts, treatises, or other

writing” and was instead “based primarily upon his ‘experience and education’” was not

supported by valid and reliable methodology and was, thus, inadmissible.)14 Moreover, the
Essentially [the expert’s] opinion ... is based on nothing more than his training

and years of experience as an engineer. Although there may be some

circumstances where one’s training and experience will provide an adequate

foundation to admit an opinion and furnish the necessary reliability to allow

a jury to consider it, this is not such a case ... [The expert’s] ipse dixit does

not withstand Daubert’s scrutiny.

Oddi, 234 F.3d at 158. The Chester court also relied on Booth v. Black & Decker, No. 98-

6352, 2001 WL 366631 (E.D. Pa. Apr. 12, 2001), which granted summary judgment to the

defendant on plaintiff’s negligence, design defect, and breach of warranty claims stemming

from a house fire allegedly caused by a Black & Decker toaster oven. The court granted

summary judgment only after concluding that the plaintiff’s causation expert’s testimony

must be excluded pursuant to Daubert. In doing so, the Booth court noted:

[The expert] asserted that his method of investigating the cause of the fire

was a standard method applied by others in the field, but he produced no

persuasive, objective evidence that his method was subject to peer review,

had a known or potential rate of error, could be measured against existing

standards, or was generally accepted, as required by Rule 702, Daubert,

Kumho Tire, and Oddi.

Booth, 2001 WL 3666361, at *12.

 15 See, e.g., Istvan v. Honda Motor Co., Ltd., No. 08-12507, 2010 WL 1254844, at *5

(E.D. Mich. Mar. 25, 2010)

[I]n reaching his conclusion, Mr. Gregorio did not examine the accident

motorcycle, nor review the two thousand (2,000) plus pages of testing

documents concerning motorcycle handling, stability, and running tests

provided to him by Defendants, while conceding that review of such materials

20

party seeking to have the testimony admitted bears the burden of showing “that the expert’s

findings are based on sound science, and this will require some objective, independent

validation of the expert’s methodology” and “the expert’s bald assurance of validity is not

enough.” Daubert (on remand), 43 F.3d at 1316. Here, McGuire’s affidavit attempting to

support his prior opinion is simply insufficient.

Plaintiff has not met its burden here: it has failed to establish that McGuire’s opinion

was based on scientifically valid principles, was repeatable, had been the subject of peer

review or publication or was a generally accepted method for determining that a

manufacturing defect in an electrical component caused a fire.15 Plaintiff, therefore, has
would be a reasonable expectation of anyone reaching a conclusion as to a

design defect. Mr. Gregorio's theory that a high speed wobble can occur at

speeds of sixty-five (65) to seventy-five (75) mph has not been subjected to

any peer review, and is in direct contradiction to Mr. Kopernik’s testimony

that high speed wobble does not occur at such speeds. Based on all of the

above, the Court concludes that Mr. Gregorio’s testimony is unreliable and

therefore inadmissible under Daubert.

Id.

21

failed to establish that McGuire’s opinion represents reliable principles and methods.

Accordingly, McGuire’s opinion that the AC power adapter was defective and caused the

fire would be inadmissible at trial.

2. Testimony Will Not Assist the Trier of Fact 

Second, the Court must determine the relevancy of the proposed testimony. Expert

testimony is relevant only when it will assist the trier of fact in understanding the evidence

or determining a material fact in question. Daubert, 509 U.S. at 592-93. Again, the party

offering expert testimony must prove its admissibility by a preponderance of the evidence.

Id. at 592 n.10.

Although the inquiry under Fed. R. Evid. 702 is whether expert testimony will

help the jury understand the evidence or determine a fact in issue, many

courts have formulated the question as whether expert testimony improperly

addresses matters within the understanding or common knowledge of the

average juror or invades the province of jury.

United States v. Thomas, 74 F.3d 676, 684 n.6 (6th Cir. 1996), abrogated on other grounds

by Morales v. American Honda Motor Co., Inc., 151 F.3d 500 (6th Cir. 1998) (emphasis

added). See also Berry v. City of Detroit, 25 F.3d 1342, 1350 (6th Cir. 1994) (“If everyone

knows [a particular fact], then we do not need an expert because the testimony will not

assist the trier of fact to understand the evidence or to determine a fact in issue.”) (internal

citation omitted). 
22

For example, in Cook, the Sixth Circuit reversed the district court’s decision to admit

expert testimony because the expert’s only testing involved a visual examination of “the line

at the place where it parted and observed some char marks on some of the fibers; that

much the jurors could have done, and presumably did do.” Cook, 53 F.3d at 739. Such

“was not scientific, technical, or other specialized knowledge based upon testing

conducted, as Daubert requires, in accordance with valid scientific methodology in order

to permit [the expert] to draw inferences that are beyond the ‘ken’ of lay jurors.” Id. (internal

quotations omitted).

[The expert’s] causation opinion, adorned as it was in the dress of scientific

or technical expertise and fortified by the court’s later instruction to the jury

calling it “expert opinion,” was not expert testimony under Rule 702. It is

precisely this kind of testimony that the Supreme Court in Daubert

admonished federal courts to screen for scientific validity as a part of the

courts’ “gatekeeping function.”

Id. Here, McGuire’s visual examination and conclusion that the “damage [on the AC power

adapter was] much more severe than anything else,” is certainly a matter “within the

understanding or common knowledge of the average juror” and “invades the province of

jury.” McGuire’s opinion—based on personal conjecture and speculation—will confuse and

mislead, rather than assist, the trier of fact.

B. Prima Facie Case of Products Liability 

Plaintiff seeks to hold Defendant liable for the loss it sustained alleging claims of

“Negligence / Products Liability / Breach of Implied Warranty” under the theory of products

liability. In Michigan, a product liability action is defined as “an action based on a legal or

equitable theory of liability brought for ... damage to property caused by or resulting from

the production of a product.” Mich Comp. Laws § 600.2945(h). “Traditional principles of
 16 To the extent that Plaintiff also alleges a claim of negligent design of the product

(design defect), this Court rejects for the reasons discussed below (i.e., Plaintiff has not

established a “demonstrable malfunction” with the product nor has Plaintiff demonstrated

the requisite causation between the alleged defect and the injury). Additionally, Plaintiff has

provided no evidence that a “feasible alternative production practice was available that

would have prevented the harm without significantly impairing the usefulness or desirability

of the product to users.” Mich. Comp. Laws § 600.2946(2). Its own expert, McGuire,

testified that:

Q: Can you tell me if the power adapter failed as a result of a design defect?

A: No. I can’t tell you that.

23

products liability law recognize three types of defects: manufacturing defects, defects due

to faulty design, and defects due to inadequate instructions or warnings.” Fleck v. Titan Tire

Corp., 177 F.Supp.2d 605, 613 (E.D. Mich. 2001) (citing Rest. 3d of Torts § 2 (1998)). 

In order “[t]o provide compensation for injuries caused by such defects, Michigan

recognizes two distinct causes of action for product failures: negligence and implied

warranty.” Id. (citing Gregory v. Cincinnati, Inc., 538 N.W.2d 325, 329 (Mich. 1995);

Hollister v. Dayton Hudson Corp., 201 F.3d 731, 736-37 (6th Cir. 2000)). The “negligence

theory generally focuses on the defendant’s conduct, requiring a showing that it was

unreasonable,” whereas the implied warranty cause of action “generally focuses upon the

fitness of the product, irrespective of the defendant’s conduct.” Prentis v. Yale Mfg. Co.,

365 N.W.2d 176, 186 (Mich. 1985).

These theories are not always mutually exclusive. When used to attack

design and warning defects, the two theories may effectively require the

same elements and proofs. As a result, in design defect cases against a

manufacturer, only a negligence cause of action is cognizable. Nonetheless,

the two causes of action remain separate theories with distinct elements.

Sundberg v. Keller Ladder, No. 00-10117, 2001 WL 1397290, at *5 (E.D. Mich. Nov. 8,

2001). Plaintiff’s Complaint, though inartfully drafted, appears to assert a manufacturing

defect claim under a negligence theory and also a breach of implied warranty claim.16
Q: Are you going to offer testimony that this power adapter was defectively

designed?

A: No.

(McGuire Dep., Def.’s Mot., Ex. E at 55.)

24

The negligence cause of action recognizes that manufacturers have a duty to use

reasonable care to produce a product that is reasonably safe for its intended, anticipated,

or reasonably foreseeable use. Prentis, 365 N.W.2d at 187. To establish a manufacturing

defect, the plaintiff must show that: (1) the product was defectively manufactured; (2) the

product reached the plaintiff in the same condition as it was when it left the manufacturer;

and (3) the defect was the proximate cause of the plaintiff’s damages. See Allstate Ins. Co.

v. Icon Health & Fitness, Inc., 361 F.Supp.2d 673, 677 (E.D. Mich. 2005) (citing Prentis,

365 N.W.2d 176). On the other hand, a breach of implied warranty claim focuses on the

condition of the product, and “[c]ustomarily, [a] defect can be found regardless of the

amount of care utilized by the manufacturer.” Gregory, 538 N.W.2d at 329 (internal

quotation and citation omitted). To establish an implied warranty claim, the plaintiff must

show: (1) a defect attributable to the manufacturer; (2) when the product left the

manufacturer; and (3) that the defect caused the plaintiff’s injury. See Allstate Ins. Co., 361

F.Supp.2d at 677 (internal quotation and citations omitted). 

The distinction between the elements of negligence and breach of implied

warranty in a products liability action is that in the former the plaintiff must

prove that the defect was caused by the manufacturer’s negligence, whereas

under the implied warranty theory the plaintiff need only establish that the

defect was attributable to the manufacturer, regardless of the amount of care

utilized by the manufacturer. 

20 Mich. Civ. Jur. Products Liability § 4 (2010).
25

Regardless of whether a plaintiff is proceeding under a negligence theory or a breach

of implied warranty theory the plaintiff must, at a minimum, establish: (1) that the product

was defective; (2) that the product was defective when it left the control of the defendant;

and (3) that the defective product caused the plaintiff’s injuries. See Kupkowski v. Avis

Ford, Inc., 235 N.W.2d 324, 328 (Mich. 1975) (holding “that in order to establish a Prima

[sic] facie case of negligence or breach of warranty in products liability cases, plaintiffs who

seek to avoid a directed verdict must prove a defect attributable to the manufacturer (or

seller) and causal connection between that defect and the injury or damage of which he

complains”) (internal quotation and citation omitted). Because the Court finds that Plaintiff

has not met its burden on any of these elements, Defendant’s motion for summary

judgment is granted. The Court first addresses causation, followed by the issue of

defectiveness. 

a. Causation

In order to establish causation, Plaintiff must prove that the defective product caused

the injury—that the allegedly defective AC power adapter caused the fire. McGuire is

Plaintiff’s only expert witness who definitively opined as to causation. Other than McGuire’s

opinion, Plaintiff lacks any competent evidence that the AC power adapter malfunctioned

or failed causing the fire. Because McGuire’s testimony is inadmissible under Fed. R. Evid.

702 and Daubert, Plaintiff has no evidence to establish causation and its claims fail. As

there is no genuine issue of material fact on the issue of causation, the Court grants

summary judgment in favor of Defendant. 

Notwithstanding that determination, Defendant claims that—even if the Court were to

consider McGuire’s opinion—Plaintiff still cannot establish a prima facie case of products
 17 Under Rule 56, the party opposing a motion for summary judgment “may not rely

merely on allegations ... in its own pleading; rather, its response must ... set out specific

facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e). “By its very terms, this

standard provides that the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at

247-48. If the disputed evidence “is merely colorable, or is not significantly probative,

summary judgment may be granted.” Id. at 249-50 (citations omitted).

26

liability. Specifically, Defendant argues that Plaintiff has no evidence of causation beyond

the mere conjecture and speculation of McGuire’s opinion and, therefore, cannot establish

the requisite causation and cannot survive summary judgment.17

“It is well settled under Michigan law that a prima facie case for products liability

requires proof of a causal connection between an established defect and injury.” Skinner

v. Square D Co., 516 N.W.2d 475, 478 (1994). Thus, to establish a prima facie case of

products liability, the plaintiff must show “that the defendant supplied a product that was

defective and that the defect caused the injury.” Auto Club Ins. Ass’n v. General Motors

Corp., 552 N.W.2d 523, 604 (Mich. 1996) (internal citations omitted). 

While the plaintiff bears the burden of proof, the plaintiff is not required to

produce evidence that positively eliminates every other potential cause.

Rather, the plaintiff’s evidence is sufficient if it establishes a logical sequence

of cause and effect, notwithstanding the existence of other plausible theories,

although other plausible theories may also have evidentiary support.

Skinner, 516 N.W.2d at 478. “While plaintiffs may show causation circumstantially, the

mere happening of an unwitnessed mishap neither eliminates nor reduces a plaintiff's duty

to effectively demonstrate causation.” Id. Thus, “causation theories that are mere

possibilities or, at most, equally as probable as other theories” are simply insufficient. Id.

at 484. “To be adequate, a plaintiff’s circumstantial proof must facilitate reasonable

inferences of causation, not mere speculation”; “the plaintiff must present substantial
 18 See, e.g., Pioneer State Mutual Ins. Co. v. Moran Oldsmobile-Cadillac-GMC Truck,

Inc., No. 249713, 251382, 2005 WL 995042, at *1 (Mich. Ct. App. Apr. 28, 2005)

[The plaintiff] hired an investigator, Daniel Terski, to investigate the fire.

Terski concluded that the fire began in the car’s engine compartment, but

could not say what caused the fire. [The plaintiff] then hired electrical

engineer Michael McGuire to investigate the accident further. McGuire

reviewed Terski’s report and conducted his own examination of the car’s

engine compartment, and concluded that an electrical failure in the engine

compartment was the cause of the fire. ...

McGuire ... performed no objective scientific or technical testing that would

link any conduct of [the defendant] to the fire. McGuire’s conclusion is

27

evidence from which a jury may conclude that more likely than not, but for the defendant’s

conduct, the plaintiff’s injuries would not have occurred.” Id. at 480 (emphasis added). And,

where an expert opinion is used to establish causation such an “opinion must be supported

by ‘more than subjective belief and unsupported speculation’ and should be supported by

‘good grounds,’ based on what is known.” Pomella v. Regency Coach Lines, Ltd., 899

F.Supp. 335, 342 (E.D. Mich. 1995) (quoting Daubert, 509 U.S. at 590 (1993)). Thus, the

expert’s conclusions regarding causation must have a basis in established fact and cannot

be “premised on mere suppositions.” Skinner, 516 N.W.2d at 484.

As to both theories of liability—negligent manufacturing and breach of implied

warranty—Plaintiff has not presented substantial evidence of causation. Plaintiff’s only

evidence to establish a causal connection between the fire and the AC power adapter is

the opinion of McGuire. And, as discusses above, McGuire’s opinion is based on his

subjective belief following a visual examination of the AC power adapter: it amounts to little

more than “mere suppositions.” Notwithstanding this Court’s determination that McGuire’s

opinion is inadmissable, his opinion is also insufficient to establish a causal link between

an alleged defect in the AC power adapter and the fire.18 In viewing the evidence in the light
essentially a “hunch,” made on the basis of the evidence he found of an

electrical failure, combined with the proximity in time of the fire to some

significant repair work [the defendant] had completed on the car. The trial

court concluded that the evidence presented by [the plaintiff] was simply too

speculative, and that, as a result, summary disposition was appropriate. We

agree with the trial court, and hold that it properly granted summary

disposition in favor of [the defendant]. ... 

[T]he trial court stated: “The opinion of plaintiff’s expert in this case fails to

rise above mere speculation and conjecture. Perhaps the technician might

have been able to see a defect or hazard when the connector was

reconnected, or perhaps he might not have been. Perhaps that was the

cause of the fire, perhaps it was not.... Under these facts, it would be

inappropriate to submit this case to a jury.”

Id.; Istvan, 2010 WL 1254844, at *5

As to both theories of liability, design defect and breach of implied warranty,

Plaintiff cannot establish the causation element with sufficient evidence.

Plaintiff has presented insufficient evidence on this issue. The only person

witnessing the accident was Mr. O’Neill, who can only testify as to what he

witnessed once the motorcycle was already in an unstable condition. Mr.

Gregorio identified a host of factors that could have caused this condition.

The jury will be left to decide what caused Mr. Istvan’s accident with equally

supportable theories. It is insufficient to submit a causation theory that, while

factually supported, is, at best, just as possible as another theory.” In this

matter, there is an absence of sufficient circumstantial evidence that explains

why Mr. Istvan lost control of his motorcycle. Therefore, Defendants’ Motion

for Summary Judgment is granted.

Id. (internal citations and quotations omitted).

28

most favorable to Plaintiff, the Court finds that Plaintiff has not sufficiently established

causation. Accordingly, summary judgment is granted on this alternate ground.

b. Defectiveness

In Prentis, the Michigan Supreme Court elaborated on the meaning of the word

defective in the products liability context:

[l]ike the courts in every other state, whether a suit is based upon negligence

or implied warranty, we require the plaintiff to prove that the product itself is

actionable-that something is wrong with it that makes it dangerous. This idea

of “something wrong” is usually expressed by the adjective “defective” ... As
29

a term of art, “defective” gives little difficulty when something goes wrong in

the manufacturing process and the product is not in its intended condition.

Prentis, 365 N.W.2d at 181-82. “[I]t is the injury inflicted on the plaintiff that entitles him to

a remedy, not his skill in discovering precisely where defendant’s manufacturing process

went wrong.” Holloway v. General Motors Corp., 271 N.W.2d 777, 783 (Mich. 1978). Thus,

the Holloway court concluded that a person injured by a product need not identify the

specific defect. See id. Indeed, “[a] demonstrable malfunction is generally clear evidence

of a defect.” Kenkel, 665 N.W.2d at 497 (internal quotation and citation omitted).

Defendant claims that, even if McGuire’s testimony is accepted, Plaintiff cannot

establish that the AC power adapter was defective. Indeed, Plaintiff’s expert admits that he

cannot point to a manufacturing defect with the AC power adapter. McGuire testified that

“[t]he failure mode, as far as I can tell it’s the entire power supply heated up. I don’t know

which specific component caused the heat, but that circuit board heated up sufficiently to

start a fire. ... The heat adaptor would have ignited the housing first, and then if it’s sitting

on the carpet, the carpet and the floor and any other surrounding combustibles.” (McGuire

Dep., Def.’s Mot., Ex. E at 51.)

Q: How about a manufacturing defect, can you tell me if it failed as a result

of a manufacturing defect?

A: That would be my opinion, yes.

Q: And what would be the manufacturing defect that allowed it to fail?

A: I can’t tell in this case specifically what component it was. ...

Q: So it’s your opinion that it is a manufacturing defect, but you can’t tell me

what the defect is?

A: Right.

(Id. at 55.) As discussed above, such an opinion is conjecture and speculation, and it does

not tend to show a “demonstrable malfunction.” Although Plaintiff need not pinpoint a
 19 Because this Court has concluded that Plaintiff has not demonstrated that the product

was defective, there is no need to address whether the product was defective when it left

the control of Defendant. 

30

specific defect, Plaintiff must provide more than “mere supposition” to establish that

something with the AC adapter went wrong consistent with a defect. See Sundberg, 2001

WL 1397290, at *6 (holding that “the mere showing that something went wrong consistent

with the existence of a defect is sufficient ... As a result, the plaintiff need only demonstrate

a logical sequence of cause and effect between the alleged defect and the injury”) (internal

citations omitted). Here, Plaintiff has not shown that the AC power adapter failed, let alone

that “something was wrong with it that makes it dangerous.” Prentis, 364 N.W.2d at 181-82.

Viewing the evidence in a light most favorable to Plaintiff, the Court finds that Plaintiff lacks

sufficient evidence to establish that the AC adapter was defective.19 Accordingly, the Court

grants summary judgment on this alternate ground.

IV. Conclusion

For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED.

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: May 13, 2010

I hereby certify that a copy of the foregoing document was served upon the parties and/or

counsel of record on May 13, 2010, by electronic and/or ordinary mail.

s/Carol A. Hemeyer 

Case Manager